United States v. Cataldo

171 F.3d 1316

• Court: Court of Appeals for the Eleventh Circuit
• Decided: April 8, 1999
• Docket: 97-5509
• Status: Published

Opinion

PUBLISH

IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT FILED ------------------------------------------- U.S. COURT OF APPEALS ELEVENTH CIRCUIT No. 97-5509 04/08/99 THOMAS K. KAHN -------------------------------------------- CLERK D. C. Docket No. 96-6011-Cr-NCR

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

JOSEPH CATALDO,

Defendant-Appellant.

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Appeal from the United States District Court for the Southern District of Florida

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(April 8, 1999)

Before TJOFLAT and EDMONDSON, Circuit Judges, and KRAVITCH, Senior Circuit Judge. EDMONDSON, Circuit Judge:

Defendant appeals his convictions and sentences for

conspiracy to import cocaine and possession with intent to

distribute cocaine. We affirm defendant’s convictions.

Because the Government did not present sufficient evidence to

support an obstruction-of-justice enhancement, we vacate the

sentences imposed by the district court and remand for

resentencing.

Background

In June 1994, confidential informant Mario Adamo1

contacted defendant Joseph Cataldo and asked Cataldo if he

knew of potential buyers or sellers of cocaine. Adamo told

Cataldo that he would pay Cataldo a one- or two-thousand-

1 Adamo was a convicted narcotics trafficker cooperating with the DEA. Adamo had known defendant Joseph Cataldo for years before the events at issue in this case occurred. 2 dollar commission for each kilogram of cocaine that Adamo

bought or sold. Cataldo later introduced Adamo to Bill Ceccoli

and George French for the purpose of arranging possible

cocaine transactions. Cataldo told Adamo that Ceccoli and

French had connections in Belize that would be useful for

obtaining cocaine.

In July and August, Adamo and Ceccoli discussed the

possibility of importing hundred-kilogram quantities of cocaine

into Florida. Cataldo told Ceccoli that, in the meantime, Adamo

was interested in selling a smaller amount of cocaine. Adamo

and Ceccoli later agreed to a small-scale transaction. That

transaction took place in August 1994, when Ceccoli paid an

undercover agent, posing as a seller, $30,000 for two kilograms

of cocaine. After Ceccoli left with the cocaine, he was stopped

by law enforcement agents monitoring the transaction. The

agents confiscated the cocaine without Ceccoli’s knowledge but

did not arrest Ceccoli. Ceccoli believed the cocaine had been

3 stolen; he then contacted Cataldo, who told Ceccoli that

Cataldo would speak to Adamo about the situation.

In August and September of 1994, Adamo, Ceccoli,

French, and an undercover agent discussed the importation of

between 100 and 600 kilograms of cocaine from Belize.

Cataldo was present for some of the discussions; and, at one

point, he was told by Ceccoli that he could receive an additional

commission from Ceccoli for the transactions. The plan

ultimately failed because French and Ceccoli were unable to

locate a source of cocaine at the terms and quantities they

required.

In June 1995, French asked Cataldo to put him in touch

with Adamo again because French wanted to buy a kilogram of

cocaine. Cataldo arranged for French to meet with Adamo at

the hotel where Cataldo was staying. The transaction took

place; and afterwards, law enforcement agents again seized

the cocaine. French contacted Cataldo and told him that the

4 cocaine had been taken. Cataldo agreed to attempt to recover

the cocaine or the money. Cataldo thereafter spoke several

times with Adamo and made threats against Adamo, whom he

believed had set up French and also Ceccoli.

In January 1996, Cataldo was charged by superseding

indictment with, among other crimes, conspiracy to import

cocaine in violation of 21 U.S.C. §§ 952(a) & 963 (Count I),2

and possession with intent to distribute cocaine, in violation of

21 U.S.C. § 841(a)(1) and 18 U.S.C. § 2 (Count IV). Cataldo

pleaded not guilty. He was convicted on Counts I and IV.

At sentencing, Cataldo sought a mitigating-role reduction

in his base-offense level. The district court found that Cataldo’s

role in the offense did not entitle him to a reduction. The court

2 The indictment charged that “Joseph Cataldo, George French, and James R. Boleman knowingly and intentionally combined, conspired, confederated and agreed with each other and with persons known and unknown to the Grand Jury to possess with intent to distribute and to distribute . . . cocaine . . . .” 5 also found, over Cataldo’s timely objection, that Cataldo had

failed to report his full arrest record to the probation officer, who

had prepared Cataldo’s Presentence Investigation Report

(“PSI”), thereby warranting an obstruction-of-justice

enhancement. The court sentenced Cataldo within the

applicable Guidelines range to concurrent terms of 108 months’

incarceration on Counts I and IV.

Discussion

On appeal, Cataldo challenges both his convictions and

his sentences. Only the sentencing arguments warrant

discussion.

I.

6 Cataldo contends that the district court erred in refusing his

request for a reduction of his offense level based on his minimal

or minor role in the offense. Section 3B1.2 of the Sentencing

Guidelines, “Mitigating Role,” designates a range of downward

adjustments for a defendant whose role in committing the offense

makes him “substantially less culpable than the average

participant.” U.S.S.G. § 3B1.2, background (1998) (emphasis

added). The Guidelines state that a defendant’s offense level

may be decreased by four levels if he was a “minimal participant”3

in the criminal activity, reduced by two levels if he was a “minor

participant”4 in the criminal activity, and reduced by three levels if

his role fell somewhere in between. U.S.S.G. § 3B1.2.

A minimal-role reduction is intended to be used infrequently, 3

U.S.S.G. § 3B1.2, comment. (n.2), “to cover defendants who are plainly among the least culpable of those involved in the conduct of a group,” U.S.S.G. § 3B1.2, comment. (n.1). “[A] minor participant means any participant who is less 4

culpable than most other participants, but whose role could not be described as minimal.” U.S.S.G. § 3B1.2, comment. (n.3). 7 At sentencing, the Government characterized Cataldo as a

drug broker (bringing buyers and sellers together) and argued that

Cataldo should receive a two-level aggravating-role enhancement

pursuant to section 3B1.1(c). Cataldo argued that he was entitled

to a mitigating-role reduction. The court determined that neither

an enhancement nor a reduction was warranted, explaining:

On his role in the offense it strikes me that he was more than a mere broker. But the Government has testified that his role was that of a broker. And a broker is -- in drug deals there is always a danger of over generalization. But they almost never have an aggravating role of being an organizer, leader, supervisor or manager. But they also never have a[] minor role or a minimal role. They are a classic example of somebody who deserves whatever the standard level is in the sense that they don’t get any increase in levels and they don’t get any decrease in levels. I see nothing in the circumstances of this case to depart either upward or downward in the determination of the levels.

On appeal, Cataldo contends that the district court erred by

applying a per se rule excluding brokers from being eligible for a

8 mitigating-role adjustment.5 Cataldo also argues that, given the

facts of this case, he is entitled to a reduction based on both his

lack of knowledge of the scope of the conspiracy and on his role

in relation to his coconspirators.

The defendant bears the burden of proving by a

preponderance of the evidence that he is entitled to a mitigating-

role reduction. United States v. Gates, 967 F.2d 497, 501 (11th

Cir. 1992). We review the district court’s determination of a

defendant’s role in the offense for clear error. United States v.

Garrison, 133 F.3d 831, 843 (11th Cir. 1998).

Cataldo is correct that application of section 3B1.2 requires

an inquiry into the specific facts of the case. See U.S.S.G. §

3B1.2, background (stating that section 3B1.2 determination is

To the district court, Cataldo objected to the denial of a 5

downward adjustment but did not specifically object on the ground of a per se rule having been applied. The Government has not argued that Cataldo has given up the point. So, for the sake of discussion, we have assumed he has preserved the point. 9 “heavily dependent upon the facts of the particular case”); see

also United States v. Veloza, 83 F.3d 380, 382 (11th Cir. 1996)

(“[T]ransporting illegal drugs, in and of itself, cannot, as a matter

of law, preclude a defendant from receiving a downward

adjustment based on his role in the offense.”). The Guidelines

also contemplate some comparison of a defendant’s conduct to

that of his coconspirators. See U.S.S.G. § 3B1.2, comment. (nn.1

& 3) (defining “minor” and “minimal” roles in terms of defendant’s

conduct relative to that of his coconspirators). But, contrary to

Cataldo’s argument, the district court judge in this case -- who had

presided over the trial and listened to all the evidence -- did not

fail to make the necessary inquiry.

The sentencing court did not construe the Guidelines to

exclude categorically drug brokers from a minor or minimal role

reduction. Instead, the court articulated a kind of rough guide,

which he then applied to the particular facts of Cataldo’s case.

The court expressly noted the “danger of over generalization” --

10 implying that he knew to stop and was stopping short of doing that

-- in stating his general view of a drug broker’s role. In context,

we do not read the judge’s remarks as allowing for no

exceptions.6 And the court ultimately made a decision based on

“the circumstances of this case,” rejecting both Cataldo’s

application for a reduction and the Government’s application for

an increase. We do not understand the record to show that the

6 We cannot accept that a district judge’s extemporaneous spoken words of explanation are to be read by appellate judges as if we were reading a statute. The Supreme Court has said that we are not to read even the Supreme Court’s formal, written opinions that way. See St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 515 (1993) (“[W]e think it generally undesirable, where holdings of the Court are not at issue, to dissect the sentences of the United States Reports as though they were the United States Code.”). We look at context and at the judge’s acts. And we do not assume that the district judges do not know the law: their ambiguous oral statements, if possible, are interpreted to be consistent with (and not inconsistent with) the law. The last principle applies with particular force when the district judge never had presented to him an objection aimed specially at his choice of words: the kind of objection that would have allowed him the chance to clarify his statements. 11 sentencing court, in fact, did apply a hard-edged, per se rule in

this case.

We have looked at the facts of this case. The district court

did not commit clear error in refusing Cataldo a reduction.

Multiple contacts existed between Cataldo and the other

participants in the enterprise about the various cocaine

transactions. Cataldo, introducing the coconspirators to one

another, had a connection to both the source and destination of

the drugs. The Government also presented evidence that

Cataldo was involved, to some degree, in the large-scale

importation scheme. See United States v. Asseff, 917 F.2d 502,

507 (11th Cir. 1990) (“It is evident that defendants-appellants’

conduct does not warrant a downward adjustment in sentencing

because of their apparent knowledge of their criminal activity and

the great amount of cocaine involved.”). And he had some

knowledge of other proposed and actual drug deals among the

coconspirators. Cf. U.S.S.G. § 3B1.2, comment. (n.1). (“[L]ack of

12 knowledge or understanding of the scope and structure of the

enterprise and of the activities of others is indicative of a role as

minimal participant.”) Cataldo also maintained a financial interest

in the transactions.

That Cataldo was less culpable than some of his

coconspirators is not plain. But, even if we accept Cataldo’s

assertion that he had some lesser role than his coconspirators,7

that fact alone does not necessarily warrant a role reduction in

this case. See United States v. Zaccardi, 924 F.2d 201, 203 (11th

Cir. 1991) (“Although the PSI indicated that appellant was one of

the ‘least culpable’ defendants, the district court was not obliged

on that basis to determine that appellant was a ‘minor’ participant

. . . . It is entirely possible for conspiracies to exist in which there

are no minor participants[.]”). Sufficient evidence supports the

Adamo testified at trial that Cataldo’s role was limited to 7

making introductions. 13 court’s determination that Cataldo was not entitled to a mitigating-

role adjustment. The court, therefore, did not commit clear error.

II.

Cataldo contends that the district court erred in increasing his

offense level two increments for obstruction of justice. The

probation officer preparing Cataldo’s PSI recommended the

enhancement because he believed Cataldo had failed to

acknowledge a 1983 “arrest” in Massachusetts for assault and

battery with a dangerous weapon when asked about his arrest

history. Cataldo admits that the did not mention this offense. He

argues, however, that he made no false statement, because he

was not arrested on the 1983 charge.8

8 Cataldo similarly objected to the probation officer’s reliance for the obstruction-of-justice enhancement on four Florida convictions for writing worthless checks. The probation officer did note that the cases were handled administratively (that is, without an arrest); and the court did not rely on them in 14 Section 3C1.1 of the Guidelines states “If . . . the defendant

willfully obstructed or impeded, or attempted to obstruct or

impede, the administration of justice during the course of the

investigation, prosecution, or sentencing of the instant offense .

. . increase the offense level by 2 levels.” “[P]roviding materially

false information to a probation officer in respect to a presentence

. . . investigation” is a kind of conduct to which the enhancement

applies. U.S.S.G. § 3C1.1, comment. (n.4(h)).

The Government has the burden of proving the applicability

of a guideline section which would enhance a defendant’s offense

level. United States v. Shriver, 967 F.2d 572, 575 (11th Cir. 1992).

And “[w]hen a defendant challenges one of the factual bases of

his sentence . . . the Government has the burden of establishing

the disputed fact by a preponderance of the evidence.” United

States v. Lawrence, 47 F.3d 1559, 1566 (11th Cir. 1995). This

burden must be satisfied with “reliable and specific evidence.” Id.

applying the enhancement. 15 Cataldo contends that the Government failed to meet its burden

at sentencing because it did not prove that he was arrested on the

1983 charge.9

The PSI states that no court documentation or circumstances

about the arrest were available on the 1983 offense and that the

probation officer was attempting to retrieve documentation from

archives. In the Addendum to the PSI, the probation officer

further wrote “[t]he court records as to the defendant’s 1983

arrest[] in Massachussetts [sic] reflect an arraignment date but not

an arrest date.”

9 Contrary to the Government’s contention, Cataldo did not waive this argument. Some confusion arose during the discussion of the obstruction-of-justice enhancement. But, our review of the record reveals that all parties understood that Cataldo contested the existence of an arrest for the 1983 Massachusetts assault and battery offense, as well as for seven other Massachusetts offenses and the four Florida worthless check charges discovered by the probation officer. See United States v. Hoffer, 129 F.3d 1196, 1202-03 (11th Cir. 1997) ( “To preserve an issue for appeal, an objection must be sufficiently detailed to allow the trial court an opportunity to correct any arguable errors before an appeal is taken.”)

16 At the sentencing hearing, the Government sought to prove

the arrest by presenting a computer printout from the

Massachusetts courts reflecting, at best, an arraignment date, a

conviction and probation for the 1983 charge.10 The court

overruled Cataldo’s objection to the enhancement, reasoning “[i]t

strikes me that there is enough in the printout that warrants . . . a

conclusion [that Cataldo was not truthful] . . . . When you get

probation, you have been arrested. Especially when you get

10 The printout is not in the record. But, we can review this issue based on the representations made in the briefs and on the district court’s statements in open court. See United States v. Gutierrez, 931 F.2d 1482, 1491 (11th Cir. 1991). The district court commented on the printout’s contents this way:

My probation officer was showing me a printout [from] the courts in Massachusetts in connection with this assault and battery with a dangerous weapon. And the second count is a probation violation although it says, the printout says, arraignment on the same date for these offense[s], one from Salem and one from Peabody [Massachusetts.] And it doesn’t contain a whole lot more information on that except it shows an award of probation.

17 probation for assault and battery with a dangerous weapon.” The

court also stated, “I don’t know how you could ever get probation

in a court without having been arrested.”

Although the court’s inference may be reasonable, courts

“must not speculate concerning the existence of a fact which

would permit a more severe sentence under the guidelines.”

United States v. Wilson, 993 F.2d 214, 218 (11th Cir. 1993). On

the record before us, too much speculation was required. The

printout does not itself suffice as “reliable and specific” proof that

Cataldo was arrested on the 1983 charge, in the face of Cataldo’s

assertion that the charge involved a notice to appear.11 The

printout is inconclusive on whether Cataldo was arrested. On

appeal, the Government does not contend that the printout is

11 Cataldo’s claim is plausible: Massachusetts law, at least at the present time, indicates a preference for summonses over arrest warrants. See Mass. Gen. Laws Ch. 276, § 24 (1998) (“Upon a complaint or indictment for any offense, a summons shall issue instead of a warrant, unless, in the judgment of the court or justice, there is reason to believe that the defendant will not appear upon summons.”). 18 direct evidence of an arrest or that it contains information about

an arrest which would disprove Cataldo’s assertion that the 1983

charge was handled by a notice to appear. The Government

never obtained Massachusetts court documents verifying

Cataldo’s alleged arrest or presented evidence showing that it

was more likely than not that the charges against Cataldo

involved an arrest. See United States v. Bernardine, 73 F.3d

1078, 1082 (11th Cir. 1996) (vacating sentence and noting

absence of evidence in record to clarify ambiguous statement

relied upon by Government in seeking enhancement to

defendant’s sentence).

We therefore conclude that the Government failed to

establish that it was more likely than not that Cataldo was

arrested for the 1983 charge.12 That fact is an essential predicate

Our opinion bears only on the obstruction-of-justice 12

enhancement. On appeal, Cataldo does not challenge the assessment of one criminal-history point for the 1983 offense; therefore, we do not address that issue. 19 to the application of the enhancement. Without it, the court had

no basis on which to conclude that Cataldo gave inaccurate

information, that is, that he obstructed justice.13

In the light of Cataldo’s objection and the absence of “reliable

and specific” evidence to the contrary, the court erred in applying

the enhancement. Accordingly, we must vacate the sentences

and remand for resentencing.

13 The basis of the enhancement appears to be the 1983 charge and that is the focus of the parties’ arguments on appeal. But, Cataldo was also convicted in 1963 for assault and battery on a police officer in Massachusetts, as well as six other offenses in Massachusetts. Cataldo objected to all these charges too, asserting that the Government had not proven he was arrested. The district court did mention the 1963 charge in ruling on the obstruction-of-justice enhancement. No computer printout evidences the 1963 charge, but the PSI indicates that Cataldo received three months’ probation on that charge. The court, drawing the same inference he did for the 1983 offense, concluded that Cataldo had been arrested. To the extent that the court alternatively or additionally relied on the 1963 charge or the other Massachusetts charges, that act was in error for reasons discussed above about the 1983 charge: the Government failed to prove that Cataldo had been arrested. 20 For these reasons, we AFFIRM Cataldo's convictions, but we

VACATE his sentences and REMAND for resentencing.

AFFIRMED IN PART, VACATED AND REMANDED IN

PART.