United States v. Medina

Opinion

USCA1 Opinion

                 United States Court of Appeals

                     For the First Circuit


No. 97-2137



                    UNITED STATES OF AMERICA,



                            Appellee,



                                v.



                     WILDER MAURICIO MEDINA,



                      Defendant, Appellant.


APPEAL FROM THE UNITED STATES DISTRICT COURT

                                

               FOR THE DISTRICT OF MASSACHUSETTS

                                

        [Hon. Edward F. Harrington, U.S. District Judge]


Before

                                

                      Selya, Circuit Judge,

                 Coffin, Senior Circuit Judge,

                   and Boudin, Circuit Judge.


Victoria L. Nadel, by Appointment of the Court, for appellant.

     Geoffrey E. Hobart, Assistant United States Attorney, with

whom Donald K. Stern, United States Attorney, was on brief for

appellee.


January 29, 1999


COFFIN, Senior Circuit Judge.  After a lengthy

investigation, the government charged appellant Wilder Medina

("Medina") with six counts stemming from a conspiracy to distribute

cocaine.  Pursuant to a written plea agreement, Medina pled guilty

to all counts but reserved the right to challenge both the amount

of cocaine attributed to him and his alleged role in the

conspiracy.  At sentencing, the district court found that Medina

was responsible for between 15 and 50 kilograms of cocaine, and

enhanced his sentence two levels for occupying a managerial

position in the scheme.  He now appeals both findings.  We affirm

the court's decision regarding drug quantity, but vacate Medina's

sentence because the basis for the district court's decision that

Medina was a manager is not sufficiently clear for us to engage in

meaningful review.

                          I. Background

  Following an investigation spanning the better part of a

year, the government indicted twenty-eight individuals in an

extensive drug conspiracy.  The investigation began after Medina

sold an eighth of an ounce of cocaine to a confidential informant

("CI") cooperating with the Drug Enforcement Administration ("DEA")

on November 18, 1994.  Later that month, the CI introduced Medina

to DEA Group Supervisor James Soiles ("Soiles").  Soiles promptly

purchased a kilogram of cocaine from Medina, and agreed to purchase

50 kilograms more.  Shortly before Medina was supposed to deliver

the shipment, federal officials arrested a number of individuals

close to Medina.  Citing those arrests, Medina backed out of the

deal, claiming that two couriers transporting the cocaine from New

York to Boston had been arrested and that there was a "lot of

heat."

  The government expanded its investigation, and obtained

authority first to intercept electronic communications made to

Medina's and his brother's pagers, and later to wiretap both

Medina's and Alvaro Velasquez's ("Velasquez") phones.  Shortly

after the wiretaps were authorized, Velasquez, a co-conspirator,

was arrested in a sting operation by the United States Customs

Service in Tampa, Florida, when he attempted to purchase 40

kilograms of cocaine.

  Medina was subsequently observed selling cocaine to a

number of individuals on a variety of occasions and was arrested

along with 22 co-conspirators on October 5, 1995.  Pursuant to a

written plea agreement Medina pled guilty to all six counts charged

against him.

  The Presentence Report ("PSR") characterized the

conspiracy as a "loosely formed organization with many participants

who acted as retail distributors of cocaine in various amounts." 

Peppered throughout the PSR were extensive descriptions of Medina's

drug activity, including a five page single-spaced section entitled

"The Medina Branch."  Apparently because of the complexity of the

conspiracy and drug transactions, the PSR contained no

recommendation as to the proper drug quantity attributable to

Medina.  Instead, it restated the government's position from the

plea agreement that Medina should be held responsible for 15-50

kilograms of cocaine, and calculated the resulting base offense

level.  The PSR did, however, conclude that he was an organizer or

leader of the conspiracy, and consequently recommended a four level

sentence enhancement pursuant to the Sentencing Guidelines.

     At the sentencing hearing, Medina objected to both the

drug calculation and the role enhancement.  He contended that only

5 to 15 kilograms should be attributable to him, and argued that no

role enhancement was warranted due to a comparison between his

activities and those of his brother Edubin who had received a two

level downward adjustment for his role as a minor participant. 

When the court asked the government whether Medina headed the

conspiracy, the government conceded that Medina was underneath

Velasquez and Alejandro Mourino, "the top two men in the

organization."  The government then argued that "[i]f the Court

didn't feel comfortable with a four level role adjustment because

he's not at the very top, [it] wouldn't hear argument from [the

government] that that wasn't appropriate.  But [Medina] was

managing other people's activities," so the government proposed a

two level enhancement as a compromise.

     Without elaboration, the court found Medina responsible

for between 15 and 50 kilograms, and enhanced the base offense

level upward two levels, consistent with the government's

compromise.  The resulting offense level was 33, and the court

sentenced Medina to 135 months.

II. Discussion

A. Medina's Role in the Conspiracy

     Because it is more troubling, we start with Medina's

challenge to the finding that he was a manager or supervisor.

     The Sentencing Guidelines attempt to calibrate an

individual's sentence with his relative role in a conspiracy. 

Section 3B1.1 of the Guidelines provides for "a range of

adjustments to increase the offense level based on the size of a

criminal organization . . . and the degree to which the defendant

was responsible for committing the offense." U.S.S.G.  3B1.1

comment (background).  To this end, the section provides that:

     (a) If the defendant was an organizer or

     leader of a criminal activity that involved

     five or more participants or was otherwise

     extensive, increase by 4 levels.



     (b) If the defendant was a manager or

     supervisor (but not an organizer or leader)

     and the criminal activity involved five or

     more participants or was otherwise extensive,

     increase by 3 levels.



     (c) If the defendant was an organizer, leader,

     manager, or supervisor in any criminal

     activity other than described in (a) or (b),

     increase by 2 levels.



U.S.S.G.  3B1.1.  The government bears the burden of proving by a

preponderance of the evidence that a defendant qualifies for such

an enhancement.  See United States v. Voccola, 99 F.3d 37, 44 (1st

Cir. 1996). 

     Although the PSR concluded that Medina was an organizer

or leader of an enterprise of more than five individuals, and

subject to a four level increase under  3B1.1(a), the court chose

to apply just a two level enhancement under  3B1.1(c), consistent

with the government's argument that Medina managed others.  The

finding that Medina was a manager or supervisor is necessarily

fact-specific.  See United States v. Graciani, 61 F.3d 70, 75 (1st

Cir. 1995).  Accordingly, the district court's determination will

be afforded considerable deference, and will be set aside only for

clear error.  See id.

     This court has addressed the reach of this guideline on

a number of occasions.   In order to apply the two level increase

under  3B1.1(c), a court must first determine that there were at

least two participants in the crime.  See United States v.

Mitchell, 85 F.3d 800, 813 (1st Cir. 1996).  There can be no doubt

that this element was met by the 28-person conspiracy at issue. 

The dispute centers on the other requirement, which mandates a

finding that Medina "exercised control over, or was otherwise

responsible for organizing the activities of, at least one other

individual in committing the crime."  United States v. DiSanto, 86

F.3d 1238, 1259 (1st Cir. 1996).

     In many circumstances, the basis for a role-in-the-

offense enhancement will be apparent from the record.  When this is

not so, however, the sentencing court, in order to apply such an

enhancement, must make a specific finding which identifies those

being managed "with enough particularity to give credence to the

upward adjustment."  United States v. McDowell, 918 F.2d 1004, 1011

(1st Cir. 1990).  This requirement is consistent with the well-

known statutory directive that the court must "state . . . the

reasons for its imposition of the particular sentence." 18 U.S.C.

 3553(c); see also McDowell, 918 F.2d at 1012.  Without reasonably

specific findings or some satisfactory surrogate in the record, we

are unable to engage in meaningful review to determine whether the

decision was clearly erroneous. See United States v. Van, 87 F.3d

1, 2-3 (1st Cir. 1996).  When a district court applies a two level

enhancement under U.S.S.G.  3B1.1(c), we cannot be left to

speculate about the defendant's managerial activities.

     In this case, none of the usual sources provide any

guidance.  The sentencing court's statements on the record were

unilluminating.  The court's questions attempted to compare Medina

to other defendants, and counsels' replies do not address whom

Medina controlled.  We are left to guess whom the court believed

Medina managed, and why only a two level adjustment was justified. 

An examination of the PSR offers equally little assistance.  The

PSR concluded that Medina occupied a leadership role in the

conspiracy, but it contains no explicit analysis of Medina's

managerial or supervisory activities.  It is possible that the

probation officer believed, albeit erroneously, that detailing all

the sales Medina made to others justified the adjustment.  See,

e.g., United States v. Graham, --- F.3d ----, 1998 WL 886768 (D.C.

Cir. Dec. 22, 1998) (noting enhancement not warranted merely on

characterizing defendant as lieutenant or middleman in cocaine

distribution conspiracy); United States v. Sostre, 967 F.2d 728,

733 (1st Cir. 1992) (a finding that defendant played an "essential

role" in drug conspiracy insufficient to warrant enhancement under

 3B1.1).

     Although the sentencing transcript and the PSR provide

inadequate direction, we could affirm if the reasons for the

judge's choice are obvious or if the record as a whole provides an

explanation.  See United States v. Quinones, 26 F.3d 213, 219 (1st

Cir. 1994).  In this case, however, the voluminous record adds

little clarity.  The Murphy affidavit details the minutiae of the

government's surveillance and Medina's drug transactions, but

neither it nor anything else in the record furnishes an obvious

basis for the court's decision that Medina exercised control over

others in the conspiracy.

     In fact, the murkiness of the record is evident by the

government's own arguments.  In its brief, the government suggested

that Medina managed his cousin Johnny.  At oral argument, the

government argued that, should the case be remanded, it would

produce evidence that Medina managed Edubin.  This contradiction

itself highlights the confusion surrounding this issue, and

suggests that the government might be reaching to justify an

enhancement which, while perhaps supportable, was not inevitable

based on this record.

     The decision that another participant in the crime was

managed or supervised by Medina is a determination, in the first

instance, to be made by the district court.  We refuse to engage in

the speculation that would be required to determine what Medina was

doing to manage someone else, and who that someone was. 

Consequently, we will remand for resentencing and allow the

district court to redetermine whether Medina's sentence should be

enhanced due to his role in the offense, and, if so, why.

B. Drug Volume Attributed to Medina

     Medina also challenges the sentencing court's finding

that he was responsible for between 15 and 50 kilograms of cocaine. 

     Noting again that the district court did not make

explicit findings, Medina argues that, in order to reach the 15

kilogram minimum threshold, the court must have attributed to him

either the undelivered 50 kilograms or the 40 kilogram transaction

for which Velasquez was arrested in Tampa.  He claims that neither

transaction should be included.  With respect to the unconsummated

50 kilogram transaction, he contends that he lacked the intent and

capacity to deliver that amount.  If that were true, under the

guidelines and our caselaw that amount could not be used to

calculate his sentence.  See U.S.S.G.  2D1.1, Application Note 12;

United States v. Wihbey, 75 F.3d 761, 777 (1st Cir. 1996).  In his

challenge to the 40 kilograms in Tampa, Medina maintains that the

government had minimal evidence connecting him to that shipment,

and has not shown by a preponderance of the evidence that he was

involved.

     The government, in response, claims that Medina's

challenge misses the mark.  The government concedes that it was not

relying on the 50 kilogram transaction in calculating drug

quantity, but it suggests that it tied Medina to the Tampa sting by

a preponderance of the evidence.  It goes on to insist that, even

if the 40 kilograms are excluded, the unchallenged portions of the

PSR firmly support the district court's finding that the 15

kilogram minimum threshold has been surpassed.  Adding all the

transactions in those paragraphs of the PSR, it correctly asserts

that they total 15.956 kilograms.

     Consequently, the dispute about the 40 kilogram sting is

irrelevant.  The unchallenged portions of the PSR provide us with

an independent ground on which to justify our decision.  See United

States v. Rosales, 19 F.3d 763, 770 (1st Cir. 1994) (noting that a

court may accept, as true and accurate, any unchallenged facts

contained in the PSR).  Although we vacate Medina's sentence due to

insufficient findings regarding his managerial role, we affirm the

court's finding that Medina was responsible for between 15 and 50

kilograms of cocaine.

     Accordingly, Medina's sentence is vacated and the action

is remanded for resentencing.