United States Court of Appeals For the First Circuit
No. 22-1276
UNITED STATES OF AMERICA,
Appellee,
v.
AMANDA FORD,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Timothy S. Hillman, U.S. District Judge]
Before
Montecalvo and Thompson, Circuit Judges, and Carreño-Coll, District Judge.
Syrie D. Fried, with whom Good, Schneider, Cormier, and Fried was on brief, for appellant. Donald C. Lockhart, Assistant United States Attorney, with whom Rachael S. Rollins, United States Attorney, was on brief, for appellee.
July 12, 2023
Of the District of Puerto Rico, sitting by designation. CARREÑO-COLL, District Judge. In this sentencing
appeal, Amanda Ford faults the district court for failing to rule
on her factual disputes and attributing to her a cache of fentanyl
found in her boyfriend's home. Seeing no error as to the former
and no clear error as to the latter, we affirm.
I.
Because Ford pleaded guilty, we draw the facts from the
change-of-plea colloquy, undisputed portions of the presentence
investigation report ("PSR"), and sentencing hearing. See United
States v. Rivera, 51 F.4th 47, 49 (1st Cir. 2022). Pedro Báez ran
a drug-trafficking organization with the help of his son and his
girlfriend, Ford. Tipped off, law enforcement officers wiretapped
the organization's phones and set up controlled purchases. Two
of them involved Ford. During the first controlled purchase, she
delivered 2.5 grams of a heroin-fentanyl mixture to a cooperating
witness who had contacted her at Báez's direction. During the
second, she drove Báez's son to a meeting place where he delivered
6.3 grams of crack cocaine and 5.1 grams of fentanyl to a
cooperating witness. The exchange took place in the car she was
driving. In between these purchases, she told a customer who
wanted to buy drugs to contact Báez's son.
Ford also kept an eye out for police around Báez's home.
The government said in its sentencing memo that it had recorded
calls showing that Ford would contact Báez when she noticed
- 2 - something suspicious. On one call, she warned him that she had
seen an unusual car. On another, she told him that she was
listening to a police scanner because state troopers had gone by
his home with a drug-sniffing dog. There was also a call, the
government said, indicating that Ford was involved in large-scale
transactions: Báez told his son that Ford was going to get $18,000
to pay another coconspirator for 500 grams of cocaine. Finally,
the government argued that there were recorded calls showing that
Ford and Báez shared customers. One of Báez's customers, for
example, told him that he had tried calling Ford. And three days
before Ford and Báez were arrested, Báez told a customer that Ford
would deliver to him crack cocaine and a heroin-fentanyl mixture.
Law enforcement officers arrested Ford and Báez early in
the morning at his home. They found 144.3 grams of a heroin-
fentanyl mixture in his bedroom and another 1.35 grams inside a
purse in a bedroom that she used.
A grand jury charged Ford, and others, with offenses
stemming from Báez's drug-trafficking organization. She entered
a straight guilty plea to Count One of the Superseding Indictment,
which charged her with conspiring to distribute and possess with
intent to distribute 1 kilogram or more of heroin, 280 grams or
more of cocaine base, 400 grams or more of fentanyl, and 500 grams
or more of cocaine. She agreed with the government's recitation
of what it would have proved at trial, except its statement that
- 3 - she could be held responsible for the cache of drugs found in
Báez's home.
Adding together the drugs from the two controlled
purchases and the 145.65 grams of fentanyl1 found in Báez's home,
the PSR set Ford's base-offense level at 26, see USSG
§ 2D1.1(c)(7), and subtracted 3 levels for acceptance of
responsibility, see USSG § 3E1.1(a)-(b), for a total-offense level
of 23. With a criminal history category of I and total-offense
level of 23, her Guidelines sentencing range was 46 to 57 months
of imprisonment. Ford objected to the PSR on several grounds,
including to its attribution to her of the 145.65 grams of fentanyl
found at the time of her arrest. The probation officer rejected
her objections in writing.
The parties' arguments at sentencing will make more
sense if we pause to explain why the PSR attributed to Ford the
cache of fentanyl found in Báez's home. In a drug conspiracy,
each coconspirator can be held responsible not only for the drugs
that she personally handled but also for the drugs that others
handled, so long as those acts were reasonably foreseeable to her,
committed within the scope of the conspiracy, and in furtherance
of the conspiracy. United States v. Soto-Villar, 40 F.4th 27, 31
1Although the drugs found in Báez's home were a mixture of heroin and fentanyl, they count as fentanyl for sentencing purposes because fentanyl results in the greater offense level. See USSG § 2D1.1(c), Note A to Drug Quantity Table.
- 4 - (1st Cir. 2022); see also USSG § 1B1.3(a)(1)(B). With that in
mind, we turn to Ford's sentencing.
At sentencing, the judge said that he had read the PSR,
the parties' sentencing memos, and Ford's letters of support. He
then noted that the PSR set Ford's Guidelines sentencing range at
46 to 57 months of imprisonment. Ford reiterated her objection
to the PSR attributing to her the cache of fentanyl found in Báez's
home -- without it, her base-offense level would be much lower.
Although she was Báez's girlfriend and sometimes stayed the night
at his home, she said that the PSR was incorrect to say that she
lived there. And so there is no factual basis to attribute the
cache to her, she argued, because her relationship with Báez
standing alone was not enough to make those drugs reasonably
foreseeable to her. She then raised what she called a "procedural"
objection to the non-PSR information in the government's
sentencing memo about "other transactions or other incidents that
[the government] says . . . [she] was aware of or participated
in." She contended that the court should ignore that information
because it was not in the PSR and she had only a day's notice to
investigate it. She nonetheless contested one of the calls not
mentioned in the PSR: The government, she said, misrepresented
what had happened on the call where Báez told his son about her
role in getting the money to pay a coconspirator for a half
kilogram of cocaine. She said that Báez had told his son that she
- 5 - was going to wake up someone who would get the money, not that she
would get the money herself.
The government responded that Ford had received in
discovery about 2.5 years earlier the non-PSR information in its
sentencing memo. It then defended the probation officer's
rationale for attributing to her the cache of fentanyl seized on
the day of her arrest: The cache, it argued, was reasonably
foreseeable because she was Báez's girlfriend, worked closely with
him, stayed at his home, was involved in taking orders and
conducting sales, and delivered drugs for him.
After listening to the parties, the judge said that he
was not going to adjust the PSR's Guidelines calculation because
he believed that it was correct. He then imposed a downwardly
variant sentence of 24 months of imprisonment. In the statement
of reasons, a form issued after judgment is entered, he checked a
box that said that he had adopted the PSR without change.
II.
Ford advances two claims of error. First, she argues
that the district court violated Federal Rule of Criminal Procedure
32(i)(3)(B) because it did not rule on her factual disputes about
whether the cache of fentanyl found in Báez's home is attributable
to her. Second, she argues that the court erred by attributing
those drugs to her.
- 6 - A.
The parties disagree about the proper standard of review
for Ford's Rule 32(i)(3)(B) claim. Because in the past we have
reviewed such claims de novo, see, e.g., United States v. González-
Vélez, 587 F.3d 494, 508–09 (1st Cir. 2009), Ford contends that de
novo review applies here. The government counters that her
failure to object below constrains us to review for plain error
only. As we have done before, we leave this question for another
day. See United States v. González, 736 F.3d 40, 42 (1st Cir.
2013) (reserving the question of which standard of review applies
to an unpreserved Rule 32(i)(3)(B) claim because the claim failed
even under de novo review). For "even under the more appellant-
friendly lens of de novo review," her claim fails. See id.
Rule 32(i)(3)(B) requires a sentencing court to rule on
factual disputes or conclude that a ruling is unnecessary because
the court will not take the disputed matter into account when
sentencing. Although the absence of explicit rulings does not
always sound the death knell on appeal, judges should strive to
make explicit rulings. See United States v. Romero, 906 F.3d 196,
210 (1st Cir. 2018). This facilitates appellate review and
reduces unnecessary confusion about what happened below. But we
will nonetheless uphold a Guidelines determination, even in the
absence of explicit rulings, so long as the "record read as a whole
'reliably shows' that the judge implicitly resolved [the
- 7 - defendant]'s objections against h[er]." Id. (quoting United
States v. Carbajal-Váldez, 874 F.3d 778, 783 (1st Cir. 2017)).2
This case is on all fours with Romero. In Romero, we
held that the judge implicitly resolved the defendant's factual
protests against the PSR's inclusion of a sentencing enhancement
and rejection of a minor-role reduction because the judge stated
on the record that he had read the PSR and parties' sentencing
memos, listened to each side discuss the disputed issues, and
adopted the PSR without change (as indicated in his statement of
reasons). Id. Here, the same things happened: The judge stated
that he had read the PSR and parties' sentencing memos, listened
to each side discuss its take on Ford's role in the conspiracy,
stated that the PSR's Guidelines calculation needed no adjustment,
and checked the box in his statement of reasons that said that he
had adopted the PSR without change, which necessarily included its
rejection of Ford's factual protests against attributing the cache
of fentanyl to her.
Our dissenting colleague argues that we misconstrue
2 The dissent states a more difficult standard to meet when there are no explicit rulings or findings, framing the standard for our review of the record for an implicit finding as "whether the 'sentencing record' compels a finding that the district court 'implicitly resolved' the disputed facts and ruled on the objected- to portions of the PSR at sentencing." (emphasis added) (quoting Carbajal-Váldez, 874 F.3d at 783). Our case law, however, is clear that our standard is whether the record "read as a whole 'reliably shows'" the implicit resolution. Romero, 906 F.3d at 210 (emphasis added) (quoting Carbajal-Váldez, 874 F.3d at 783). - 8 - Romero because, in that case, there were "other indicia that the
district court complied with Rule 32(i)(3)(B)." But the dissent
distinguishes Romero based on considerations that played no role
in our ultimate analysis. To be sure, we noted in Romero that the
court (1) "arguably addressed Romero's minor-role-reduction
request" by stating that his role in the organization was "very
important" and (2) stated further that it was "not sure" whether
Romero's objections mattered because of the government's below-
Guidelines sentencing recommendation. 906 F.3d at 209–10. But
we did not say that those statements helped show that the court
had implicitly resolved Romero's objections. See id. Instead, we
held that the record reliably showed that the court had "implicitly
resolved Romero's objections against him" because it had adopted
the PSR without change, which meant that it had "accepted the PSR's
sentencing-range calculations, including its rejection of Romero's
[objections]." Id. at 210. And we knew that the court had adopted
the PSR without change "because of the judge's written statement
of reasons." Id. So the dissent is rewriting what mattered in
Romero to distinguish it from this case.3
3 The dissent also argues that our reliance on the district court's statement of reasons disregards Rule 32(i)(3)(B)'s text because the statement was not prepared "at sentencing." But the timing of the statement's preparation does not matter: We rely on it because it records what the court did at sentencing. In the end, the dissent's disagreement with our analysis falls under its own weight. The dissent says that the facts that Ford disputed "underpinn[ed] the guidelines calculation" and - 9 - Setting aside this case's procedural similarity with
Romero, Ford's arguments also show that the judge implicitly
resolved her factual protests against her. She argues that the
factual disputes "bore directly" on the Guidelines calculation and
that the "judge's acceptance of the probation officer's treatment
of [her factual] objections" led to her being held responsible for
the cache of fentanyl found in Báez's home. So under her
reasoning, by adopting the PSR without change, the judge
necessarily resolved the factual disputes against her.
One final point. Although the case law above suggests
that even a minimal indication that the judge implicitly resolved
the factual disputes is sufficient to avoid remand, we remind
district courts that Rule 32(i)(3)(B) requires them to rule on the
factual disputes (or explain why they need not rule on them): The
district court "must -- for any disputed portion of the presentence
report or other controverted matter -- rule on the dispute or
determine that a ruling is unnecessary either because the matter
will not affect sentencing, or because the court will not consider
"underl[ay] . . . the attribution analysis" in the PSR. If that is true, then what mystery is there about how the district court resolved those disputes when it adopted the PSR without change? The dissent's insistence that it is nonetheless necessary to remand for resentencing so that the court may clearly state on the record its resolution of Ford's factual disputes would "exalt form over substance" -- something we are rightfully "reluctant" to do. See Carbajal-Váldez, 874 F.3d at 783.
- 10 - the matter in sentencing." Fed. R. Crim. P. 32(i)(3)(B). As this
court has said, the best practice is to make "explicit rulings."
Romero, 906 F.3d at 210. While we have rejected Rule 32(i)(3)(B)
claims, where, as here, the district court indicated that it had
resolved the factual disputes by accepting or adopting the PSR, we
are mindful that an outer boundary exists where the absence of any
explanation will be insufficient as a matter of law.4
But in the end, the record here reliably shows that the
judge implicitly resolved Ford's factual disputes about whether
the cache of fentanyl is attributable to her. Thus, her Rule
32(i)(3)(B) claim fails.
4 In the past, for example, we have remanded for clarification where the judge's failure to explicitly comply with Rule 32(i)(3)(B) frustrated appellate review. In Van, there were two ways that the defendant could qualify for a leadership enhancement under the Guidelines: the criminal activity had to either (1) involve five or more criminally responsible participants or (2) be otherwise extensive. United States v. Van, 87 F.3d 1, 2 (1st Cir. 1996). The PSR initially included the enhancement on the ground that the criminal activity involved five or more criminally responsible participants. Id. But when Van disputed that "Michael" was a criminally responsible participant (and thus that there were at least five), the probation officer responded that, even if there were not five, the criminal activity was "otherwise extensive." Id. at 2–3. Because the probation officer did not specify on which ground the PSR relied, the judge's adoption of the PSR did not reveal how he had resolved the disputes about Michael's criminal culpability. Id. at 3–4. Making matters worse, the undisputed facts did not compel a finding that either Michael was criminally responsible or that the criminal activity in general was "otherwise extensive." Id. at 4. So the uncertainty over which ground the judge had adopted frustrated our review. Here, in contrast, the PSR sets forth a consistent explanation for why the cache is attributable to Ford.
- 11 - B.
Ford claims next that the judge erred by attributing to
her the cache of fentanyl found in Báez's home. The parties agree
that she preserved this claim. Preserved claims that the judge
erroneously attributed drugs to the defendant are reviewed for
clear error. Soto-Villar, 40 F.4th at 33. "Under this
deferential standard," we must accept the judge's drug-quantity
finding "unless, on the whole of the record, we form 'a strong,
unyielding belief that a mistake has been made.'" Id. (quoting
United States v. Cintrón-Echautegui, 604 F.3d 1, 6 (1st Cir.
2010)).
The amount and type of drugs involved in a drug-
trafficking conspiracy play a key role at sentencing. Id. at 31.
Indeed, they generally control a defendant's base-offense level.
See USSG § 2D1.1(a). Drugs are attributed to a defendant based
on her "count(s) of conviction" and relevant conduct. 5 Soto-
Villar, 40 F.4th at 31. Relevant conduct, "in the case of a
jointly undertaken criminal activity," includes "all reasonably
foreseeable acts and omissions of others in furtherance of the
5 Criminal liability and sentencing liability are not always the same. "While a conspiracy charge may encompass all acts by co-conspirators in furtherance of the conspiracy, 'relevant conduct' is limited to the foreseeable acts resulting from the defendant's particular agreement. Thus, the scope of relevant conduct is 'not necessarily the same as the scope of the entire conspiracy.'" United States v. Laboy, 351 F.3d 578, 583 (1st Cir. 2003) (citation omitted) (quoting USSG § 1B1.3, cmt. (n.2)).
- 12 - jointly undertaken criminal activity." Cintrón-Echautegui, 604
F.3d at 5 (quoting USSG § 1B1.3(a)(1)(B)). So a defendant "is
responsible not only for the drugs [s]he actually handled but also
for the full amount of drugs that [s]he could reasonably have
anticipated would be within the ambit of the conspiracy." United
States v. Cortés-Cabán, 691 F.3d 1, 27 (1st Cir. 2012) (quoting
United States v. Santos, 357 F.3d 136, 140 (1st Cir. 2004)).
Ford does not challenge being held responsible for the
drugs involved in the controlled purchases that she participated
in. She challenges only the judge's finding that the cache of
fentanyl found in Báez's home on the day of her arrest constitutes
relevant conduct and is thus attributable to her. But before we
review the judge's finding, we need to resolve a dispute about the
facts that he could rely on in making that finding: Ford argues
that he could not rely on the non-PSR information in the
government's sentencing memo because she contested it. She is
right, in part.
"[A] sentencing judge, in her substantial discretion,
can consider any evidence with sufficient indicia of reliability
and can rely upon 'virtually any dependable information.'" United
States v. Berríos-Miranda, 919 F.3d 76, 81 (1st Cir. 2019) (quoting
United States v. Doe, 741 F.3d 217, 236 (1st Cir. 2013)). These
principles apply with full force to drug-quantity findings.
Cintrón-Echautegui, 604 F.3d at 6. The government's statements,
- 13 - "not adequately challenged by defense counsel who has a full
opportunity to respond, may constitute reliable information" for
sentencing purposes. United States v. Montalvo-Febus, 930 F.3d
30, 34 (1st Cir. 2019) (quoting United States v. Díaz-Arroyo, 797
F.3d 125, 130 n.3 (1st Cir. 2015)).
Díaz-Arroyo illustrates this point. Díaz appealed his
sentence for being a felon in possession of a firearm. The PSR
noted that he had been charged with murder and attempted murder
and that those charges had been dismissed. Díaz-Arroyo, 797 F.3d
at 127. But the PSR did not say why they were dismissed. Id. At
sentencing, the prosecutor recommended a top-of-the-Guidelines
sentence. Id. She explained that the charges "were dropped only
after the sole surviving witness to the incident (a minor who was
able positively to identify the defendant as the shooter) was
threatened and fled the jurisdiction." Id. In response, defense
counsel maintained the defendant's "innocence with respect to
those charges" and stated that "the charges had been dropped
because the witness had been in witness protection and did not
appear to testify." Id. On appeal, we held that the court was
"entitled to take into account the prosecutor's representations"
about why the charges had been dismissed because defense counsel
"did not directly challenge [her] account of the circumstances
surrounding the[ir] dismissal." Id. at 130 n.3. So, too, here.
At the sentencing hearing, Ford challenged only the call
- 14 - where Báez talked to his son about her role in getting the money
to pay a coconspirator for a half kilogram of cocaine. To be
sure, she generally objected to the information in the government's
sentencing memo on the grounds that it was not in the PSR and that
she should not have to rush to check it the day before sentencing.
But a sentencing court is not limited to the information in the
PSR. See Doe, 741 F.3d at 236. And she did not say that she
needed more time, let alone ask for more time, to review the non-
PSR information. See United States v. Mathur, 624 F.3d 498, 508
(1st Cir. 2010) ("[A] defendant's claim of unfair surprise at
sentencing is 'severely undermined, if not entirely undone, by his
neglect to ask the district court for a continuance to meet the
claimed exigency.'" (quoting United States v. Díaz-Villafañe, 874
F.2d 43, 47 (1st Cir. 1989))). Because Ford did not "directly
challenge" the non-PSR information in the government's sentencing
memo –- besides, perhaps, the call about the large cocaine
transaction6 -- the judge could rely on it. See Díaz-Arroyo, 797
F.3d at 130 n.3. And because the government argued that the
information supports a finding that the cache of fentanyl is
attributable to her, and the judge made that finding, we will
We need not decide whether the judge could rely on this call 6
after Ford's objection. Based on this record, we fail to discern how her precise role in getting the money for a large cocaine purchase from a coconspirator could have affected the judge's decision as to whether the cache of fentanyl is attributable to her.
- 15 - factor that information into our review. See United States v.
Jiménez-Beltre, 440 F.3d 514, 519 (1st Cir. 2006) (en banc),
abrogated on other grounds by Rita v. United States, 551 U.S. 338
(2007) ("[A] court's reasoning can often be inferred by comparing
what was argued by the parties or contained in the pre-sentence
report with what the judge did.").
There is no clear error in the judge's decision to hold
Ford responsible for the cache of fentanyl in Báez's home. The
judge could reasonably find that Ford had agreed with Báez to
distribute a heroin-fentanyl mixture on an ongoing basis. The
judge could also reasonably find that Báez's possession of the
cache was in furtherance of that agreement and reasonably
foreseeable to Ford. There are two calls in the record, almost
one year apart, where Báez told customers who wanted to buy a
heroin-fentanyl mixture either to call Ford or that Ford would
deliver the mixture to them. Following the first call, Ford
delivered 2.5 grams of that mixture to a cooperating witness. The
second call took place only three days before Ford was arrested in
Báez's home, where the cache of that mixture was found. So the
judge could reasonably infer that Ford and Báez regularly dealt in
a heroin-fentanyl mixture, including at the time of their arrest,
and therefore that it was reasonably foreseeable to her that he
had a cache of that mixture awaiting distribution. Indeed, the
judge could even infer that Ford knew that Báez kept the cache in
- 16 - his home because she warned him when state troopers went by there
with a drug-sniffing dog. See Cintrón-Echautegui, 604 F.3d at 7
("[T]he court is entitled to draw reasonable inferences from
information . . . in the sentencing record."). It follows that,
under a reasonable view of the record, Báez's possession of a
heroin-fentanyl mixture in distributable quantities in his home
was within the scope of Ford's conspiracy agreement, in furtherance
of it, and reasonably foreseeable to her. Where, as here, a view
of the record is reasonable, there can be no clear error in the
judge's decision to adopt it. United States v. Martin, 749 F.3d
87, 92 (1st Cir. 2014).
Ford's flagship argument about why she should not be
held responsible for the cache of fentanyl in Báez's home has clay
feet. She contends that her relationship with Báez does not
automatically make her responsible for everything that he did.
But that is not what happened here. To be sure, merely being in
a relationship with someone does not show that one agreed to
participate in the other's illicit activities. See United States
v. Candelaria-Silva, 714 F.3d 651, 657-58 (1st Cir. 2013). Given
the evidence about her role in the conspiracy, however, she is not
being saddled with Báez's bad acts merely because she was dating
him. And to the extent that she argues that she cannot be held
responsible for the cache because the record does not show that
she knew about it, that argument is a non sequitur. Reasonable
- 17 - foreseeability is broader than knowledge. United States v.
Pinkham, 896 F.3d 133, 137 (1st Cir. 2018). Because Báez's
possession of the cache of fentanyl with intent to distribute it
was reasonably foreseeable to Ford, committed within the scope of
the conspiracy that she had agreed to, and in furtherance of that
conspiracy, she is responsible for it.
As for the drugs inside the purse in the bedroom that
Ford used, those are attributable to her, too. Because those
drugs were also a mixture of heroin and fentanyl and were in the
same house as the cache, the judge could reasonably infer that
they were once part of the cache. 7 Because the cache is
attributable to Ford, it does not matter that she (or someone else)
later removed some of it for personal use. See Pinkham, 896 F.3d
at 138; see also United States v. Marks, 365 F.3d 101, 105–06 (1st
Cir. 2004) (holding that drugs the defendant consumed were
nonetheless attributable to him because he had acquired them "with
the intent that [they] would or could be distributed"). In any
event, the 1.35 grams in the purse do not matter. Subtracting
them from Ford's total drug weight leaves her with the same base-
offense level (405.6 kg total converted drug weight minus 3.39 kg
Ford tries to distance the drugs in the purse from the drugs 7
in the cache by pointing out that, although both are a mixture of heroin and fentanyl, they had different additives. But the judge could reasonably infer that Báez's drug-trafficking organization did not have the type of quality control that would ensure each gram is identical.
- 18 - converted drug weight equals 402.21 kg total converted drug
weight). See USSG § 2D1.1(c)(7) (providing that "[a]t least 400
kg but less than 700 kg of Converted Drug Weight" results in a
base-offense level of 26). Moreover, we see no indication in the
record that removing the drugs in the purse from consideration
would have impacted Ford's sentence. So any error as to the
attribution of the drugs in the purse would be harmless. See
Romero, 906 F.3d at 210–11 (stating that a harmless error "provides
no basis for upsetting the sentence").
III.
For the reasons above, we affirm Ford's sentence.
-Dissenting Opinion Follows-
- 19 - MONTECALVO, Circuit Judge, dissenting. By finding, on
this record, that the district court met its Rule 32(i)(3)(B)
obligations to resolve controverted matters at sentencing that are
material to the court's analysis, I believe the majority's
interpretation of the rule is at odds with its plain text and in
tension with its procedural objective. Not only does this
interpretation undercut Rule 32(i)(3)(B)'s purpose by making it an
ineffective procedural safeguard against a sentence based on
unsupported allegations, it also disincentivizes the record
development necessary to effectively review the procedural
reasonableness of a sentence on appeal. Consequently, I disagree
with the majority's conclusion that the record reliably shows that
the district court implicitly resolved the material factual
disputes at sentencing, as required by Rule 32(i)(3)(B). For this
reason, I respectfully dissent.
This case turns on the scope of the district court's
obligation under Rule 32(i)(3)(B) to resolve disputed material
facts at sentencing. It is well-settled that "[w]hen a fact in
the PS[R] is disputed, a district court must resolve the dispute
so long as the fact may affect the court's sentencing
determinations." United States v. De Jesús-Torres, 64 F.4th 33,
40 (1st Cir. 2023). Though disfavored, this resolution can be
implicit "when the court's statements and the sentence imposed
show that the facts were decided in a particular way," leaving no
- 20 - ambiguity as to the factual record considered at sentencing.
United States v. Van, 87 F.3d 1, 3 (1st Cir. 1996). Because the
court made no express rulings on the disputed facts in this case,
the question before us is whether the "sentencing record" compels
a finding that the district court "implicitly resolved" the
disputed facts and ruled on the objected-to portions of the PSR at
sentencing. United States v. Carbajal-Váldez, 874 F.3d 778, 783
(1st Cir. 2017); see also Van, 87 F.3d at 3.
This is where I part ways with the majority's analysis.
The majority views our decision in United States v. Romero, 906
F.3d 196 (1st Cir. 2018), as directing its conclusion that the
district court implicitly resolved the contested facts
underpinning Ford's objections to the PSR. I disagree.
Here, the parties agree that the district court made no
explicit findings on (i) the drug quantity attributable to Ford or
(ii) the various subsidiary factual disputes bearing on that
attribution analysis.8
8Ford raised the following objections to facts contained in the PSR (i) whether Ford was Baez's "live-in girlfriend"; (ii) the nature of Ford's involvement in the conspiracy and, in particular, the meaning of Probation's factual statement that Ford was a "runner of Pedro Baez's narcotics trafficking business"; and (iii) whether the drugs recovered from a purse in the upstairs bedroom belonged to Ford. At sentencing, Ford also disputed the government's characterization of a recorded phone call that it introduced for the first time in its sentencing memorandum.
- 21 - The sentencing hearing transcript is also clear that the
full extent of the district court's discussion of these issues at
sentencing was its conclusion that "I am not going to adjust the
guidelines. I think they're properly calculated."
Determining whether the court implicitly resolved these
disputes in a particular way requires us to ask if adoption of the
PSR's guidelines calculation -- taken with knowledge that the
district court read the PSR and the parties' sentencing memoranda
and listened to the parties' arguments -- "eliminate[s] any
guesswork about what facts the sentencing court envisioned as the
basis for the [attribution of the disputed drug quantity]."
Carbajal-Váldez, 874 F.3d at 784. On this record, I see no way
of getting to yes. Here, where Ford's PSR objections disputed
several material facts and legal conclusions underpinning the
guidelines calculation, and where the full extent of the court's
engagement with these issues was its adoption of the PSR's
guidelines calculation without explanation, it seems evident that
"[t]he PS[R] and the transcript of the [sentencing] hearing, taken
together, [are not enough to] furnish clear guidance as to the
basis on which" the district court concluded that attributing the
disputed quantity to Ford was appropriate. See id. at 783-84
(holding the court's statement that it agreed with the guidelines
calculation "coupled with the court's explanation that the captain
enhancement was applied because the appellant 'acted as the captain
- 22 - aboard the vessel which carried controlled substances,' makes
manifest that the court impliedly adopted the findings contained
in the PS[R]").
Perhaps recognizing this deficiency too, the majority
opinion makes clear that the principal basis for finding the court
implicitly ruled on the disputed portions of the record is not in
the sentencing record. Rather, the majority's conclusion turns
on the fact that the district court "checked the box in his
statement of reasons that said that he had adopted the PSR without
change." But the Statement of Reasons and Final Judgment are form
documents that the district court completes after the sentence has
been imposed, outside the presence of the defendant, and as part
of a closed administrative process. Meanwhile, Rule 32(i)(3)(B)
expressly refers to the court's obligation to resolve disputes "at
sentencing," whether by express statement or implicit reference,
and for good reason: to ensure the court engages in the requisite
factfinding in court and ahead of sentencing. This not only
safeguards defendants' constitutional right to a sentence
predicated on reliable facts, but it also ensures that defendants
can preserve their challenges to the factual findings -- and the
- 23 - procedural reasonableness of the sentence -- for appeal.9 See
United States v. Ramos-Carreras, 59 F.4th 1, 5 (1st Cir. 2023)
("[I]t is axiomatic 'that a convicted defendant has the right to
be sentenced on the basis of accurate and reliable information,
and that implicit in this right is the opportunity to rebut
the . . . evidence and the information' to be considered by the
court." (quoting United States v. Rivera-Rodríguez, 489 F.3d 48,
53 (1st Cir. 2007))); see also United States v. Berzon, 941 F.2d
8, 18 (1st Cir. 1991) ("Fed. R. Crim. P. 32 . . . 'embodies the
9 Procedural safeguards, like Rule 32(i)(3)(B), are not just technical rules that guide the flow of a proceeding. They are part of a complex web of requirements that together guarantee defendants a fundamentally fair hearing, as required by the Due Process Clause of the Fifth Amendment, and safeguard the integrity of an appeal. See United States v. Berzon, 941 F.2d 8, 18-20 (1st Cir. 1991). Here, it is undisputed that the court adopted Probation's guidelines calculation and therefore that it concluded that the disputed drug quantity was attributable to Ford. The issue is that we do not know which facts the court relied on in reaching its conclusion. The alleged facts the court might have relied on include Ford's relationship to Baez, the PSR's characterization of Ford as a "runner of Pedro Baez's narcotics trafficking business," the phone calls introduced in the government's sentencing memo, the drugs in the purse alleged to belong to Ford, or some combination of these facts. Because various combinations of these facts could have led the court to adopt Probation's guidelines calculation, it is difficult to tell which of these factual disputes, if any, the court implicitly resolved by attributing the disputed quantity to Ford. And where, as here, there are several disputed facts, each of which may or may not have factored into the court's attribution finding, knowing that information is critical for our review on appeal.
- 24 - congressional intent to assure a defendant's due process rights in
the sentencing process.'" (quoting United States v. Curran, 926
F.2d 59, 61 (1st Cir. 1991))).
The majority asserts that Romero directs its conclusion.
But I do not read Romero to say that the mere notation of the
court's adoption of the PSR without change in the later-filed
Statement of Reasons alone suffices as a basis for finding that
the court implicitly resolved the objections to the PSR and thus
complied with Rule 32(i)(3)(B). This is because the record in
Romero has other indicia that the district court complied with
Rule 32(i)(3)(B).
First, the Romero court noted that "the judge arguably
addressed Romero's minor-role-reduction request at sentencing when
he said he 'agree[d] with the government's characterization
that . . . Romero's role was very important in the organization.'"
906 F.3d at 209-10. This factual finding alone was likely a
sufficient basis for concluding the court complied with its
fact-finding obligations under Rule 32(i)(3)(B).10
In Romero, we also noted that the district court -- after 10
acknowledging Romero's objections to the PSR -- told the parties that it was "'not sure that those objections' were 'all that relevant,' since the government's proposal was 'below' what Romero would get if he sustained the objections and reduced the offense level." 906 F.3d at 203. Though not a focus of our decision in Romero, this statement is arguably a sufficient basis for finding the district court had complied with Rule 32 by implicitly "determin[ing] that a ruling is unnecessary . . . because the matter will not affect sentencing." Fed. R. Crim. P. 32(i)(3)(B).
- 25 - Second, and perhaps more importantly, Romero objected to
the PSR’s application of the obstruction of justice enhancement
and rejection of the minor-role reduction based on the undisputed
facts as stated in the PSR. Id. at 210-11. Nothing in our
decision indicates that Romero was challenging the reliability of
the underlying facts themselves. Ford, on the other hand,
objected to the factual accuracy of material information in the
PSR, including facts Probation later added in its responses to her
objections.
Therefore, the question before the court in Romero more
closely resembled a question of law -- whether the district court
implicitly ruled on whether Probation's application of the
enhancement/reduction was in accord with the law in light of the
undisputed facts. See id. at 210-11. Whereas here, we are
dealing with a dispute about the underlying facts material to the
attribution analysis. Without knowing how or whether the district
court resolved the factual disputes, we cannot effectively review
the legal conclusion as to attribution on appeal. And checking a
box on the Statement of Reasons noting the court's adoption of the
PSR without change is neither a substitute for resolving disputes
at sentencing nor a reliable basis for inferring resolution of the
facts in a particular way.
Aware of this issue and concerned that their decision
could invite courts to improperly avoid their duty to resolve
- 26 - material facts at sentencing, the majority wisely instructs
district courts to "make explicit rulings" on factual disputes at
sentencing notwithstanding its holding that "even a minimal
indication that the judge implicitly resolved the factual disputes
is sufficient to avoid remand." But such an admonishment is of
little use where the court's decision simultaneously affirms based
on a sentencing record that even when read as a whole lacks minimal
indicators -- let alone a reliable showing that the judge
implicitly resolved the disputed facts. And I fear that the
court's decision today will hinder our ability to enforce, as a
procedural matter, the need for district courts to make clear
findings at sentencing, as well as lower the bar for concluding
that the "record read as a whole 'reliably shows' that [a] judge
implicitly resolved" objections against a defendant. See Romero,
906 F.3d at 210.
In sum, by overlooking the differences in what the
specific objections in Romero were and how the district court in
Romero engaged with them, and instead treating the record here as
"on all fours with Romero," I am concerned that the majority has
significantly narrowed the district court's obligations to resolve
factual disputes at sentencing. In doing so, it has diminished
an important procedural protection by making it harder to ensure
that defendants are sentenced based on reliable evidence.
- 27 - For all these reasons, I would vacate the sentence and
remand to the district court with instructions to (i) state clearly
on the record the factual basis for the court's decision on
attribution and (ii) resentence in light of the court's findings
regarding the disputed facts relating to attribution.
I therefore respectfully dissent.
- 28 -