United States v. Fontana

• Court: Court of Appeals for the First Circuit
• Decided: March 28, 1995
• Docket: 94-1989
• Status: Published

Opinion

USCA1 Opinion

UNITED STATES COURT OF APPEALS
                                FOR THE FIRST CIRCUIT
                                 ___________________

        No. 94-1989

                              UNITED STATES OF AMERICA,

                                      Appellee,

                                          v.

                                 N. JOHN FONTANA, II,

                                Defendant, Appellant.

                                 ____________________

APPEAL FROM THE UNITED STATES DISTRICT COURT

                          FOR THE DISTRICT OF NEW HAMPSHIRE

                   [Hon. Steven J. McAuliffe, U.S. District Judge]
                                              ___________________

                                 ____________________

Before

                                Torruella, Chief Judge,
                                           ___________

                            Aldrich, Senior Circuit Judge,
                                     ____________________

                               and Cyr, Circuit Judge.
                                        _____________

                                 ____________________

James  L.  Sultan with  whom Rankin  and Sultan  was on  brief for
            _________________            __________________
        appellant.
            Jean L. Ryan, Assistant United States  Attorney, with whom Paul M.
            ____________                                               _______
        Gagnon, United States Attorney, was on brief for appellee.
        ______  ______________________

                                 ____________________

                                    March 28, 1995
                                 ____________________



ALDRICH, Senior Circuit Judge.   Appellant, N. John
                               ____________________

            Fontana,  is  one of  a number  of  persons charged  under 18

            U.S.C.    471,  473 and 474 with  the manufacture, possession

            and delivery of counterfeit  United States currency.  Fontana

            waived  indictment  and  pled   guilty  pursuant  to  a  plea

            agreement.  He appeals from his sentence.

                      Following  execution of the plea agreement, Fontana

            cooperated fully with  federal authorities.   At  sentencing,

            the government did not object to his requesting a three-level

            downward  adjustment for prompt acceptance of responsibility,

            and it filed a motion for a four-level downward departure for

            his substantial  assistance in further uncovering the scheme,

            pursuant  to United States Sentencing Guidelines ("U.S.S.G.")

              5K1.1.  The court  granted these motions, and they  are not

            before us.  However, the government recommended a three-level

            enhancement  for  a  managerial  or  supervisory  role  under

            U.S.S.G.   3B1.1(b), and the court, in sentencing  defendant,

            agreed.    Fontana timely  challenges  the  enhancement as  a

            violation of  U.S.S.G.   1B1.8, that he  alleges protects him

            from  the use of information he provided pursuant to his plea

            agreement.

                      We review a  district court's legal  interpretation

            of  the  sentencing  guidelines  de novo,  United  States  v.
                                             _______   ______________

            Ovalle-Marquez, 36  F.3d 212, 221  (1st Cir.  1994), and  its
            ______________

            fact-bound  determinations of defendant's role in the offense

-2-



for clear error.  Id. at 225; United States  v. Jadusingh, 12
                              __          _____________     _________

            F.3d 1162, 1169 (1st Cir. 1994).

                      The  sentencing guidelines  mandate  a three  level

            upward adjustment if the government demonstrates that (1) the

            defendant was a  supervisor or manager, and  (2) the criminal

            scheme  involved  five  or  more persons,  or  was  otherwise

            extensive.  Ovalle-Marquez, 36  F.3d at 225.  See  U.S.S.G.  
                        ______________                    ___

            3B1.1(b).    Neither "supervisor"  nor  "manager"  is defined

            under     3B1.1,  but  it  is  sufficient  that  a  defendant

            recruited,  instructed  or  supervised  at  least  one  other

            person.  United States v. Rodriguez Alvarado, 985 F.2d 15, 20
                     _____________    __________________

            (1st Cir. 1993).   The  court's so finding  here was  clearly

            warranted.  Fontana  does not dispute  that he recruited  and

            directly supervised a Mr.  Aquire.  The issue is  whether the

            participation of Aquire,  and Fontana's  supervision of  him,

            was  properly available to the  district court to consider in

            calculating his sentence.

                      In   his  plea   agreement,  Fontana   promised  to

            cooperate in all  government investigations and  prosecutions

            of others involved in the counterfeiting operation.  In turn,

            the government made three specific promises:

                      In exchange for his plea and cooperation,
                      the Government  agrees:  (1) that it will
                      not  object  to an  appropriate reduction
                      for acceptance of responsibility  . . . ;
                      (2) that  it will file  a Motion pursuant
                      to  U.S.S.G.    5K1.1 on  the defendant's
                      behalf at the  time of sentencing  if the
                      defendant provides substantial assistance

-3-



in the investigation  and prosecution  of
                      others. . . . ;  (3) that it is not aware
                      of  more  than  1.5  million  dollars  in
                      counterfeit U.S. currency in  the instant
                      case and  that under U.S.S.G.    1B1.8 if
                      the defendant  provides information which
                      leads to the  discovery of more,  it will
                      not be used against him  to determine his
                      adjusted offense level.

                      Defendant challenges the three-level enhancement on

            the  ground, inter alia, that  the court could  not find five
                         _____ ____

            participants as "counters."  Since  the court agreed that  it

            could  not  count Fontana's  wife,  it  must have  considered

            Aquire  in  order  to  meet 3B1.1(b)'s  requirements.    (The

            government  contended that there  were five who  had not been

            disclosed, but, on the  record, it is mistaken.)   The court,

            accordingly, in order to find five, may have interpreted  the

            plea  agreement  as  not  standing  in  the  way  because  of

            Fontana's identifications.  In any event, without comment, it

            found five.

                      We think this interpretation accords with the plain

            reading of  the agreement.   Examination shows no  promise by

            the government  not to use information  about the involvement

            of other individuals except where such information led to the

            discovery of more than the  $1.5 million counterfeit of which

            it  was already  aware.   (None  was.)   A  single,  limited,

            promise  manifestly cannot  be construed  into a  general one

            across the  board.  Plaintiff  was promised a  willingness to

            recommend    downward    reductions    for   acceptance    of

-4-



responsibility  and  for  cooperation,  but the  only  upward

            exemption  (item  3), was  that  if  his  disclosures led  to

            finding more counterfeit currency than the government already

            knew of, they should  not be used against him  in calculating

            his offense level.  

                      Section 1B1.8(a) of the guidelines provides:

                      Where  a  defendant  agrees to  cooperate
                      _____
                      with   the    government   by   providing
                      information      concerning      unlawful
                      activities of others, and as part of that
                                                _______________
                      cooperation   agreement  the   government
                      _________________________________________
                      agrees       that      self-incriminating
                      _________________________________________
                      information  provided   pursuant  to  the
                      _________________________________________
                      agreement  will not  be used  against the
                      _________________________________________
                      defendant,  then  such information  shall
                      _________
                      not be used in determining the applicable
                      guideline  range,  except  to the  extent
                      provided in the agreement.

            (Emphasis  supplied).  U.S.S.G.    1B1.8(a).  We  do not read

            from  this  a  promise  relating  to the  disclosure  of  any

            participant,  unless   it  led  to  the   discovery  of  more

            counterfeit currency.  Evidently the  court may have felt the

            same.

                      We have,  however, a singular situation.   Not only

            did Fontana read his agreement as excluding for  all purposes

            individuals  disclosed by  him,  but the  government  agreed.

            This  calls  for  consideration.    While  in its  terms  the

            agreement   does  not   support  Fontana,   plea  agreements,

            involving  possible  misapprehension   by  defendants   under

            stress,  may invite  equitable  adjustments  at the  district

            court's discretion.   Cf. United  States v. Kinsey,  917 F.2d
                                  __  ______________    ______

-5-



181 (5th Cir. 1990);  United States v. Wilder, 15  F.3d 1292,
                                  _____________    ______

            1296-97  (5th Cir. 1994);  United States v.  Fields, 766 F.2d
                                       _____________     ______

            1161,  1168  (7th  Cir.   1985).    We  particularly  believe

            discretion should be  considered here because  at sentencing,

            defendant's position with respect to  Aquire was agreed to by

            the  government.  We cannot deal adequately with this on this

            record.  In view  of its silence  we cannot tell whether  the

            court  chose, equitably, to  adopt defendant's interpretation

            of the agreement and found, erroneously, that there were five

            or  more independent  participants,  or whether  it read  the

            agreement   as   written  in   spite   of  the   government's

            acquiescence,  which  it was  free to  do.   The  sentence is

            vacated, and  the case  remanded  to the  district court  for

            further proceedings consistent with this opinion.

                           So ordered.

-6-