USCA1 Opinion
United States Court of Appeals
For the First Circuit
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No. 95-1511
UNITED STATES OF AMERICA,
Appellee,
v.
YESID F. JIMENEZ MARTINEZ,
Defendant, Appellant.
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No. 95-1569
UNITED STATES OF AMERICA,
Appellee,
v.
ALVARO MORENO,
Defendant, Appellant.
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APPEALS FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Nathaniel M. Gorton, U.S. District Judge]
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Before
Boudin, Circuit Judge,
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Coffin, and Rosenn,* Senior Circuit Judges.
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*Of the Third Circuit, sitting by designation.
Lenore Glaser, by appointment of the court, for appellant
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Yesid F. Jimenez Martinez.
Raymond E. Gillespie, by appointment of the court, for
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appellant Alvaro E. Moreno.
Michael J. Pelgro, Assistant United States Attorney, with
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whom Donald K. Stern, United States Attorney, was on brief for
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appellee.
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April 24, 1996
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COFFIN, Senior Circuit Judge. Defendant-appellants Yesid F.
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Jimenez Martinez and Alvaro E. Moreno pled guilty to narcotics
offenses under 21 U.S.C. 841(a)(1) & 846 arising from their
participation in a cocaine conspiracy. At issue in this appeal
are their claims of sentencing errors.
Both defendants challenge the district court's decision to
hold them responsible for over five kilograms of cocaine
(implicating the ten year minimum sentence under 21 U.S.C.
841(b)(1)(A)(ii)), and the court's refusal to conduct an
evidentiary hearing. Jimenez also contests the court's
determination that his disclosure to a probation officer did not
satisfy the requirements of the "safety valve" provision
contained in U.S.S.G. 5C1.2, which permits a judge to impose a
sentence below the statutory minimum. Finally, Moreno asserts
that the evidence was insufficient to warrant a two-level
enhancement for obstruction of justice. Having concluded that
the court considered insufficiently reliable evidence in
determining the quantity of cocaine attributable to Jimenez, we
vacate his sentence and remand for resentencing. As to all other
issues, we affirm.
BACKGROUND1
Facts
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1 We set forth the facts as derived from the uncontested
portions of the Presentence Report (PSR), the transcripts of the
sentencing hearings, see United States v. Dietz, 950 F.2d 50, 51
___ _____________ _____
(1st Cir. 1991), and the evidence adduced at trial, see United
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States v. Hanono-Surujun, 914 F.2d 15, 19 (1st Cir. 1990).
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Defendants' involvement in the conspiracy began in the fall
of 1993, with co-conspirator Christopher Fazio's efforts to
broker a five-kilogram cocaine deal with an undercover agent. In
an attempt to secure a source for the cocaine, Fazio contacted
Moreno, who responded that he "would come through with the deal."
A meeting ensued between Moreno, Fazio and the agent, where in
contemplation of the five-kilogram deal, the parties agreed to a
preliminary one-kilogram purchase to take place on November 10,
1993. On November 9, Moreno introduced Fazio to Jimenez, the
"man who worked for him, that delivers coke for him, and . . .
[who] was the transporter." On November 10, Jimenez, accompanied
by Fazio, delivered one kilogram of cocaine to the agent.
On December 30, further negotiations between Fazio, Moreno
and the agent took place. Moreno proposed splitting the five-
kilogram transaction into two separate sales. After two more
meetings, the five-kilogram deal, to be broken up into two
separate transactions, was scheduled for February 2, 1994.
On the morning of February 2, Moreno spotted surveillance
agents outside his home, and cancelled the deal. Upon hearing of
the cancellation, the agents left their positions outside
Moreno's and Jimenez's homes, but returned a short time later.
At that time, Jimenez was observed entering his home, followed
shortly thereafter by co-conspirator Gabriel Uroujo Perez, who
was carrying an empty shoulder bag. Uroujo exited with a full
shoulder bag, later found to contain just over 2 kilograms of
cocaine. A search of Jimenez's home uncovered an additional
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123.8 grams of cocaine. The three kilograms that would have
completed the transaction were never found.
Jimenez pled guilty to conspiracy to distribute cocaine,
distribution of cocaine, and possession of cocaine with intent to
distribute. Moreno went to trial, but, after the government
rested its case, pled guilty to conspiracy to distribute cocaine,
and distribution of cocaine.
Sentencing: Jimenez
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The probation department determined that Jimenez was
accountable for 3.2615 kilograms of cocaine -- the one kilogram
sold on November 10, 1993 and the cocaine recovered on February
2, 1994. The government objected, contending that Jimenez should
be liable for the whole five kilograms negotiated. On January
24, 1995, in response to the government's objections, Jimenez
requested an evidentiary hearing and order to the Government "to
present any witnesses it intends to use in support of its
objections." This motion was denied.
Jimenez's sentencing hearing took place on April 3, 1995.
In support of its position, the government relied on
circumstantial evidence and one piece of direct evidence, an
affidavit from co-defendant Ramin Mojabi, prepared on February 6,
1995, which stated that Jimenez was present during a December 30,
1993 meeting with Moreno and Fazio, and took part in discussions
concerning the five-kilogram deal.
Notwithstanding Jimenez's challenges to the affidavit's
reliability, the court found that Jimenez was aware of the object
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of the conspiracy, the five-kilogram deal, and was, therefore,
responsible for the whole five kilograms. In addition, the court
denied Jimenez the benefit of U.S.S.G 5C1.2, which permits a
court to impose punishment without regard to the statutory
minimum sentence. While Jimenez had provided information to the
probation department, he did not apprise the United States
Attorney's Office, and the court, therefore, found that he had
not informed the "Government" as required by 5C1.2(5).
Consequently, Jimenez was subject to the 10 year minimum sentence
-- not the applicable guideline range of 70-87 months -- and was
sentenced accordingly to 120 months incarceration.
Sentencing: Moreno
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Moreno's sentencing hearings took place on March 23 and
April 6, 1995. On March 13, the court denied Moreno's motions
for an evidentiary hearing and for issuance of subpoenas to co-
conspirators Jimenez and Uroujo to appear as witnesses at his
sentencing. At the first hearing, Moreno testified that his role
in the conspiracy was limited to playacting the role of a drug
dealer in order to assist Fazio. He further contended that
because he did not have the capability to produce the additional
three kilograms of cocaine on February 2, he could not be held
responsible for the total negotiated amount of five kilograms.
The court rejected these arguments, finding Moreno responsible
for over five kilograms, and increasing his offense level by two
in accordance with his role as a manager and supervisor in the
conspiracy. See U.S.S.G. 3B1.1(c).
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The court further found that Moreno had phoned Fazio, and
Moreno's wife had visited Fazio, in an effort to influence
Fazio's testimony at Moreno's trial. Accordingly, the court
enhanced Moreno's offense level another two levels for
obstruction of justice. Moreno was sentenced to 188 months
incarceration.
DISCUSSION
A. Sentencing Issues: Jimenez
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1. Quantity of Drugs
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As we have often recognized, sentencing calculations for
drug trafficking offenses are largely quantity-driven. See
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United States v. Sepulveda, 15 F.3d 1161, 1196 (1st Cir. 1993).
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In the conspiracy context, a defendant is accountable for "all
reasonably foreseeable acts and omissions of others in
furtherance of the jointly undertaken criminal activity." United
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States v. Ovalle-Marquez, 36 F.3d 212, 223 (1st Cir. 1994)
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(quoting U.S.S.G. 1B1.3(a)(1)(B)). See also Sepulveda, 15 F.3d
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at 1197; United States v. O'Campo, 973 F.2d 1015, 1026 (1st Cir.
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1992) ("[T]he base offense level of a co-conspirator at
sentencing should reflect only the quantity of drugs he
reasonably foresees it is the object of the conspiracy to
distribute after he joins the conspiracy."). We review quantity
determinations for clear error. See United States v. St. Cyr,
___ _____________ _______
977 F.2d 698, 701 (1st Cir. 1992).
Jimenez admits agreeing to store two kilograms of cocaine,
but denies having any knowledge whatsoever of the secondary three
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kilogram transaction. He advances three related arguments
against the court's decision holding him accountable for the
whole five kilograms negotiated. First, he claims that the
Mojabi affidavit was unreliable and should not have been
considered by the court. Second, he argues that, at the very
least, the court should have staged an evidentiary hearing.
Finally, he contends that, without the affidavit, the court's
determination was clearly erroneous.
The Mojabi Affidavit
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The Mojabi affidavit was the only piece of direct evidence
linking Jimenez to the five-kilogram deal.2 In order to place
the affidavit in context, we first provide in detail the
circumstantial evidence before the court that, according to the
government, demonstrated Jimenez's awareness of the deal:
1. Jimenez was introduced to Fazio as the person who
worked for, and transported cocaine for, Moreno.
2. Moreno told the undercover agent that he intended
to use Jimenez in connection with the five-kilogram
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2 Mojabi's affidavit, in pertinent part, provided:
On the evening of December 30, 1993, Christopher
Fazio took me to Moreno's home. "Fernando" [Jimenez]
was also there. Moreno, Fazio, and "Fernando" were
discussing the sale of five kilograms of cocaine to the
undercover agent; they were talking about how many
kilograms to sell at one time. Moreno stated that he
could get as much as they wanted in New York and
"Fernando" stated that he would deliver the cocaine and
take the money. "Fernando" stated that he had done
this before, that he was not afraid, and that he did
not need a gun. "Fernando" also stated that he had
previously lived in New York and that the people who
owned the cocaine trusted him and had used him as a
courier in the past. . . .
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sale, and Jimenez stored the first installment of two
kilograms in his home.
3. Moreno told the agent that Jimenez had modified an
automobile to transport up to ten kilograms; such an
automobile was parked in Jimenez's driveway on February
2, 1995.
4. Moreno told the agent that his "friend" would
deliver the five kilograms from New York; the
automobileinJimenez's drivewayhadaNew Yorkregistration.
5. The kilogram recovered in November was wrapped in a
bag from a store from Queens, New York; the automobile
in Jimenez's driveway was registered to a man who lived
in Queens; and the two kilograms recovered in February
were wrapped in bags containing the logo of the New
York Times -- suggesting that the cocaine had a common
origin.
6. Pen register information revealed that between
January 6, 1994 and February 2, 1994, 59 calls were
placed from Jimenez's residence to Moreno's. Nineteen
of these calls occurred during January 29 and February
2, the days leading up to the deal.
7. Additional quantities of cocaine were found inside
Jimenez's home -- suggesting that larger quantities of
cocaine had been stored there.
8. Jimenez and/or Moreno had ample opportunity to
discard or remove the three kilograms of cocaine.
The government contends that Mojabi's affidavit was just one
of many factors considered by the court, and that, even in its
absence, there was sufficient evidence to support the court's
finding. While we make no determination whether the
circumstantial evidence considered alone could have supported the
court's finding -- i.e., whether it would survive clear error
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review -- we do not consider the evidence so substantial as to
make consideration of the affidavit, if erroneous, harmless.
Three factors inform our conclusion. First, the court's
question to the government during sentencing -- "Don't I have to
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rely on Mr. Mojabi's affidavit in order to come to that
conclusion [that Jimenez is responsible for the five kilograms]"
-- indicates that Mojabi's affidavit was the key piece of
evidence. Second, the probation department, considering the same
circumstantial evidence, refused to deem Jimenez responsible for
more than the recovered cocaine. Third, the evidence, though
clearly confirming Jimenez's involvement in the conspiracy, is as
consistent with Jimenez's participation in only the first stage
of the transaction as his awareness of the whole transaction.
Thus, because the affidavit appears to have been the crucial
piece of evidence in the district court's finding of drug
quantity, we must assess whether it was properly considered by
the court.
At sentencing, the "court may consider relevant information
without regard to its admissibility under the rules of evidence
applicable at trial, provided that the information has sufficient
indicia of reliability to support its probable accuracy."
U.S.S.G. 6A1.3(a); United States v. Tardiff, 969 F.2d 1283,
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1287 (1st Cir. 1992). The court has wide discretion in
determining whether sentencing information is reliable. United
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States v. Shrader, 56 F.3d 288, 294 (1st Cir. 1995); Tardiff, 969
______ _______ _______
F.2d at 1287.
In challenging the affidavit's reliability, Jimenez
complains of 1) the lack of corroboration; 2) Mojabi's self
interest to implicate Jimenez; and 3) the improbability that
Mojabi could relate a discussion involving Jimenez, given that,
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purportedly, Mojabi did not speak Spanish and Jimenez did not
speak English. We will address each of these in turn.
Corroboration. The affidavit, prepared on February 6, 1995,
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contained information that was not contained in the PSR, the
government's objections to the PSR, witness testimony at Moreno's
trial, or any contemporaneous document, despite the fact that
Mojabi had been cooperating with the government since shortly
after his arrest in February, 1994. Nor is the information in
the affidavit corroborated by any of the circumstantial evidence
delineated above. Indeed, the only substantiation the government
can muster is that, on the day the meeting described in the
affidavit took place, the agent observed Moreno, Fazio and Mojabi
arriving together at the restaurant, supporting an inference,
perhaps, that Moreno, Fazio and Mojabi met together prior to
their arrival. Jimenez, however, was not seen with the others.
Self-Interest. At sentencing, Jimenez contended that given
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the plea negotiations between the government and Mojabi, and even
independent of any rewards or inducements relating to a plea
agreement, Mojabi may have believed that it was in his interest
to help the government convict Jimenez of a higher amount of
cocaine. In response, the government stated that there was no
written, signed agreement with Mojabi, but that any agreement
reached would be breached by the proffering of dishonest
information. In addition, the government asserted that Mojabi
was seeking a 5K1.1 departure, which applies only if the
defendant provides truthful assistance. In other words,
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according to the government, Mojabi had an obligation, and every
incentive, to tell the truth.
Alternatively, the government argued that by placing himself
at the scene of the negotiations, Mojabi was subjecting himself
to potentially greater criminal liability -- demonstrative of
credibility as a "statement against interest." Countering this
assertion, Jimenez responded that, under U.S.S.G. 1B1.8(a), any
self-incriminating information could not be used against Mojabi.
Language Barrier. Finally, Jimenez contended that Mojabi
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and Jimenez do not share a common language, Jimenez speaking
Spanish and having only minimal understanding of English and
Mojabi speaking only English. As such, Jimenez argued that the
affidavit was "ambiguous on its face." The government did not
respond at sentencing to this point, which identifies a
discrepancy not easily ignored. Mojabi did not refer merely to a
simple remark. The affidavit purports to cover Jimenez's
comments on the following subjects: the amount of kilograms to
sell, his plan to deliver the cocaine and receive payment, his
prior experience in delivery, his lack of fear, his lack of need
of a gun, his prior residence in New York, the trust others had
in him and their prior employment of him.
Separately, these types of complaints are unlikely to carry
the day. As we have previously indicated, courts may consider
even uncorroborated affidavits. See Shrader, 56 F.3d at 294-95
___ _______
(refusing to adopt a per se rule of unreliability for
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uncorroborated affidavits of cooperating co-conspirators).
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Moreover, a co-defendant's cooperation with the government does
not make his statements inherently suspect. Finally, the
resolution of factual discrepancies is especially within the
court's domain.
We are nonetheless convinced that in this case the district
court erred in relying on the Mojabi affidavit. Most
significantly, Jimenez's claim, uncontested by the government at
sentencing, that he and Mojabi shared no common language raised
an important doubt about the reliability of the affidavit. Faced
with this challenge to Mojabi's credibility, and with little
other probative evidence of Jimenez's involvement with the latter
transaction, the court should not have chosen simply to credit
the affidavit without looking into the matter further.
We are also influenced, though to a lesser extent, by two
other considerations: 1) there was little basis here on which to
premise a credibility determination -- the affiant had never
appeared before the court or grand jury nor did anyone ever
attest to his veracity; and 2) there was no corroboration
whatsoever of the content of Mojabi's statement.3
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3 The presence of these factors, whether alone or in
conjunction, has often been significant in other cases where we
have rejected challenges to the consideration of hearsay evidence
at sentencing. See, e.g., United States v. Shrader, 56 F.3d 288,
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294-95 (1st Cir. 1995) (witness vouched for the credibility of
co-conspirators); United States v. Williams, 10 F.3d 910, 914-15
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(1st Cir. 1993) (hearsay testimony given in formal grand jury
proceeding); United States v. Montoya, 967 F.2d 1, 3 (1st Cir.
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1992) (witness providing hearsay testimony cross-examined);
United States v. Zuleta-Alvarez, 922 F.2d 33, 37 (1st Cir. 1990)
______________ ______________
(testimony relied upon given at trial and before the grand jury
and corroborated by many witnesses).
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Finally, in light of these circumstances, we are somewhat
concerned by the court's failure to articulate any reason why the
affidavit was reliable. After hearing counsel debate Mojabi's
credibility, the court announced:
I've considered the arguments of counsel and the
submissions that were made to the Court before oral
argument. And as a result thereof, the Court finds
that the defendant . . . was aware of negotiations
between the other codefendants and the undercover agent
to sell at least five kilograms of cocaine . . . .
Despite the clear dispute over reliability, the court did
not mention the affidavit, or any other evidence, at all. While
we assume that the "arguments" and "submissions" referred to
included, inter alia, the Mojabi affidavit, indicating that the
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court found that the affidavit was reliable,4 the court's
conclusory pronouncement diminishes our confidence that it fully
considered this important issue.
Most likely, doubts about the Mojabi affidavit could have
been resolved by holding an evidentiary hearing, as Jimenez
requested.5 Such hearings may be burdensome, but the stakes
here were high: the affidavit provided the crucial evidence of
the amount of drugs that could be attributed to Jimenez, and as
much as four years in prison were riding on the issue. While the
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4 The government does not contest that the court considered
the affidavit.
5 On January 24, 1995, Jimenez requested an evidentiary
hearing. Though Jimenez did not formally renew this request at
his sentencing hearing, both parties address the merits of the
court's denial of his request. This is appropriate since
Jimenez's challenge to the reliability of the affidavit is
inexorably intertwined with his claim concerning the court's
failure to hold an evidentiary hearing.
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district court has considerable discretion in deciding whether it
has sufficient evidence upon which to make a finding at
sentencing, here the district court's decision to rely on the
affidavit without an evidentiary hearing was error.
The government contends that the court adequately dealt with
the reliability issue by taking a full proffer from Jimenez of
facts in support of his position. Such an opportunity may often
be sufficient to allay reliability concerns. See Shrader, 56
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F.3d at 295. But in this case, Jimenez's proffer raised an
important doubt about the reliability of Mojabi's affidavit --
the language discrepancy -- that the government did not refute
and that the court did not resolve; the affidavit was by far the
most important evidence on the issue of drug quantity, and the
stakes for defendant were extremely high.
We therefore vacate Jimenez's sentence and remand to the
district court for resentencing in a manner consistent with this
opinion.
2. The Safety Valve Exception
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In 1994, Congress enacted 18 U.S.C. 3553(f), which, in
certain cases, limits the application of mandatory minimum
sentences. Pursuant to this provision, when a convicted
defendant meets five delineated requirements,6 the district
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6 The provision and its guideline counterpart demand that
(1) the defendant does not have more than 1 criminal
history point, as determined under the sentencing
guidelines;
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court "shall" impose a sentence in accordance with the guidelines
without regard to any statutory minimum sentence. 18 U.S.C.
3553(f); U.S.S.G. 5C1.2. The parties agree that Jimenez meets
the first four requirements, but dispute whether Jimenez's
disclosure to a probation officer, but not the United States
Attorney, constitutes providing information to the "Government"
as understood under 5C1.2(5). We review this question of legal
interpretation under the guidelines de novo. United States v.
__ ____ _____________
Gary, 74 F.3d 304, 315 (1st Cir. 1996).
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Neither the United States Code nor the Sentencing Guidelines
contains a specific definition of "government." Jimenez thus
advances a generic conception derived from a dictionary: "the
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(2) the defendant did not use violence or credible
threats of violence or possess a firearm or other
dangerous weapon (or induce another participant to do
so) in connection with the offense;
(3) the offense did not result in death or serious
bodily injury to any person;
(4) the defendant was not an organizer, leader,
manager, or supervisor of others in the offense, as
determined under the sentencing guidelines and was not
engaged in a continuing criminal enterprise, as defined
in 21 U.S.C. 848; and
(5) not later than the time of the sentencing hearing,
the defendant has truthfully provided to the Government
all information and evidence the defendant has
concerning the offense or offenses that were part of
the same course of conduct or of a common scheme or
plan, but the fact that the defendant has no relevant
or useful other information to provide or that the
Government is already aware of the information shall
not preclude a determination by the court that the
defendant has complied with this requirement.
18 U.S.C. 3553(f); U.S.S.G. 5C1.2.
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executive branch of the United States Federal Government."
Jimenez asserts that this characterization includes the probation
department. For additional support, Jimenez contends, correctly,
that aspects of the sentencing procedures contemplate some
disclosure to the probation officer. See U.S.S.G. 6A1.1.
___
In resolving this issue, we are guided by the use of the
word "government" in other relevant provisions, and by
legislative history. Section 5C1.2 provides that "prior to its
determination, the court shall afford the government an
opportunity to make a recommendation" and cites Fed. R. Crim. P.
32(a)(1).7 Section 5C1.2 comment. (n.8.). Under this
procedural rule, "government" implicitly identifies the
prosecutorial authority. See United States v. Rodriguez, 60 F.3d
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193, 196 & n.3 (5th Cir. 1995) (relying on, inter alia, the
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doctrine of in pari materia in holding that statements to a
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probation officer do not satisfy 5C1.2).8
We also think that 5C1.2 is properly understood in
conjunction with 5K1.1, which authorizes downward departure
upon the government's motion that the defendant has provided
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7 The November 1994 Guidelines Manual refers to Fed. R.
Crim. P. 32(a)(1). Pursuant to a 1994 amendment, Rules 32(c)(1)
and (3) now address the sentencing hearing and contain material
previously located in Rule 32(a)(1). Reflecting this change, the
November 1995 Guidelines Manual cites Rules 32(c)(1) and (3).
8 Jimenez argues that if 5C1.2 only contemplates
communication with the prosecution, then the language of note 8
is surplusage. The language merely illustrates, however, that
the court is not dependent on the recommendation of the
prosecution, as it is with a 5K1.1 departure, which requires a
motion from the government.
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substantial assistance to authorities. The second clause of
5C1.2(5) -- securing the benefit of the "safety valve" even if
the fully disclosing defendant "has no useful other information"
or the "Government is already aware" -- seems specifically
designed to reward forthcoming defendants who cannot satisfy
5K1.1. It seems evident that section 5K1.1's reference to the
"government" and to "substantial assistance in the investigation
or prosecution of another person" contemplates the defendant's
provision of information useful in criminal prosecutions.
The house report accompanying the 1994 bill reinforces the
notion that the provision requires disclosure of information of a
type that would aid prosecutors' investigative work. It states
that, "by the time of sentencing, the defendant must have fully
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assisted the Government by providing all relevant information
________
regarding the offense." H.R. Rep. No. 460, 103d Cong., 2d Sess.
(1994) (emphasis added). We think this contemplates more than
the summary of the crime typically provided by a defendant to a
probation officer. Our conclusion is further buttressed by the
timing component of 5C1.2(5) -- requiring provision of all
information to the Government "not later than the time of the
sentencing hearing" -- which necessarily anticipates
communication that could occur after the creation of the
presentence report, indicating that something other than ordinary
disclosure to a probation officer is intended.
While full disclosure to the probation officer may assist
the officer in preparing the defendant's presentence report, we
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do not believe that 5C1.2 was meant to extend so far. The
probation officer does not create a presentence report with an
eye to future prosecutions or investigations. Indeed, in that
context, the disclosure of one's role is the domain of
"acceptance of responsibility." Section 5C1.2, like 5K1.1,
requires more affirmative involvement in the prosecutorial
function. Cf. United States v. Wrenn, 66 F.3d 1, 3 (1st Cir.
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1995) (requiring an affirmative act of cooperation). See also
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United States v. Ivester, 75 F.3d 182, 185 (4th Cir. 1996);
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United States v. Acosta-Olivas, 71 F.3d 375, 378 (10th Cir. 1995)
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(stating that the defendant must disclose "everything he knows
about his own actions and those of his co-conspirators.").
In sum, we conclude that "government" in 5C1.2(5) refers
to the prosecutorial authority. Accordingly, we affirm the
district court's holding that Jimenez did not satisfy the
requirements of the "safety valve" provision.9
B. Sentencing Issues: Moreno
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1. Quantity of Drugs
_________________
At the time of Moreno's sentencing, the sentencing
guidelines provided:
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9 We can conceive of circumstances where the objectives of
the provision would arguably be met even though the defendant did
not communicate directly with the government. For example, the
defendant might advise a probation officer of his intent to
reveal all relevant details as required by the provision and then
disclose this information, which in turn is passed on to the
government. We need not decide whether such unusual
circumstances would satisfy 5C1.2(5) because this is not such a
case.
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In an offense involving negotiation to traffic in a
controlled substance, the weight under negotiation in
an uncompleted distribution shall be used to calculate
the applicable amount. However, where the court finds
that the defendant did not intend to produce and was
not reasonably capable of producing the negotiated
amount, the court shall exclude from the guideline
calculation the amount it finds the defendant did not
intend to produce and was not reasonably capable of
producing.
U.S.S.G. 2D1.1 comment. (n.12).10
The court found that Moreno "intended to produce . . . and
was reasonably capable of producing for sale such five kilograms
of cocaine." It added, "part of the evidence supporting . . .
capability . . . is the two kilograms that were seized . . . on
February 2, 1994." As a result, the court attributed six
kilograms of cocaine to Moreno -- the five negotiated and the one
delivered in November -- a quantity carrying a base offense level
of 32. Moreno concedes his intent to produce five
kilograms of cocaine, but contends that there is insufficient
evidence that he was capable of producing the three kilograms
that would have consummated the deal. We review factbound
matters in sentencing for clear error, mindful that such factual
findings need only be supported by a preponderance of the
evidence. United States v. Martinez-Martinez, 69 F.3d 1215, 1224
_____________ _________________
(1st Cir. 1995).
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10 The Sentencing Commission amended note 12, effective
November, 1995, by, inter alia, replacing the "and" in the last
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sentence with "or." See 1995 Guidelines Manual, App. C, Amend.
___
518. Nonetheless, we consider Moreno's claim in the context of
the guidelines in effect in April, 1995, the time of his
sentencing. See U.S.S.G. 1B1.11(a).
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Despite Moreno's efforts to distance himself from the two-
kilogram seizure, it is a reasonable conclusion that the
recovered cocaine constituted the first stage of the five-
kilogram deal. In turn, it is entirely plausible to conclude
that Moreno, having the capability to produce the first part of
the deal, had the capability to consummate the deal, particularly
when the two stages were to take place in close succession. See
___
United States v. Legarda, 17 F.3d 496, 501 (1st Cir. 1994)
______________ _______
("entirely plausible . . . that defendant, having delivered
eleven kilograms of cocaine one week, was capable of delivering
ten kilograms the following week"). At the very least, we do not
discern clear error.
The government also argues, in the alternative, that under
our recent precedent, Moreno's concession of intent is sufficient
alone to render him liable for the whole negotiated amount. We
agree. In United States v. Pion, 25 F.3d 18, 25 (1st Cir. 1994),
_____________ ____
we concluded that the conjunctive phrasing of note 12 requires
the sentencing court to include the weight negotiated unless the
defendant establishes both lack of intent and incapability. In a
subsequent case, we stated "if the court finds by a preponderance
of the evidence in regard to an aborted narcotics transaction
that the defendant had either the intent or the capacity to
deliver the full amount of the drugs under negotiation, then that
amount must be included in the drug quantity calculation," United
______
States v. Muniz, 49 F.3d 36, 39 (1st Cir. 1994). Very clearly,
______ _____
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then, Moreno's concession of intent also disposes of this
issue.11
2. Obstruction of Justice
______________________
Enhancement for obstruction of justice can be based on
conduct "threatening, intimidating, or otherwise unlawfully
influencing a co-defendant, witness, or juror, directly or
indirectly, or attempting to do so." U.S.S.G. 3C1.1 comment.
(n.3(a)). The court found that Moreno "attempted to influence a
witness in this case by actions of his own and through actions of
his common law wife" and increased his offense level by two
levels. We review the court's determination for clear error.
See United States v. Gonzales, 12 F.3d 298, 299 (1st Cir. 1993).
___ _____________ ________
The PSR reported that Moreno, from prison, and his
girlfriend contacted Fazio several times in an effort to induce
him to testify that Moreno had a subordinate role in the
conspiracy. Moreno, in his objections to the PSR and at his
sentencing hearing, did not deny that he or his girlfriend had
contacted Fazio but contended that he was trying to "urge him to
tell the truth." In contrast, Fazio's testimony during Moreno's
____________________
11 Moreno cites the following language from an earlier
case: "Our case law has followed the language of this Commentary
Note in a rather faithful fashion, requiring a showing of both
intent and ability to deliver in order to allow the inclusion of
negotiated amounts to be delivered at a future time." United
______
States v. Legarda, 17 F.3d 496, 500 (1st Cir. 1994). While this
______ _______
language supports Moreno's position, we are bound by the on point
holdings of Pion and Muniz. See United States v. Graciani, 61
____ _____ ___ ______________ ________
F.3d 70, 75 (1st Cir. 1995).
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trial indicates that Moreno attempted to script his
testimony.12
Credibility determinations at sentencing are the province of
the court, and are scrutinized only for clear error. United
______
States v. Webster, 54 F.3d 1, 5 (1st Cir. 1995). Here, Moreno
______ _______
concedes that the communication took place. He admits to the
basic content of the communication: asking Fazio to testify that
his [Moreno's] role in the conspiracy consisted of acting the
part of a drug dealer. Moreno's only offered justification is
that he was encouraging Fazio to tell the truth. In our view,
after presiding over Moreno's trial, and having extensive
opportunity to observe Fazio and Moreno, the court's rejection of
Moreno's version of events easily survives clear error review.
Moreno argues, further, that the court made no specific
findings of the "words used, the speaker's meaning, or what a
listener's reasonable interpretation would be." At sentencing,
the judge is required to "state in open court the reasons for
____________________
12 The following exchange took place during a voir dire
hearing relating to another matter:
Q. [by government] What was the phone call conversation
about?
A. [by Fazio] What Moreno was telling me.
Q. What was he telling you?
A. Well, he was telling me to not testify against him, not
to drown him and to try to save him.
Q. How did he want you to try to save him.
A. By not testifying against him.
Q. Did he tell you anything he wanted you to say?
A. Yes, he did.
Q. What was that?
A. To say that I was the big man and he was just a friend
trying to help me out trying to find somebody.
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[the] imposition of the particular sentence." 18 U.S.C.
3553(c). Here, the court stated its finding that Moreno
attempted to influence a witness, a clear example of obstruction
of justice. See U.S.S.G. 3C1.1 comment. (n.3(a)). The narrow
___
scope of the issue in dispute, the specific findings in the PSR,
which were adopted by the district judge as evidenced by the
judgment form, and the extensive discussion at sentencing
sufficiently enable effective appellate review. This was enough
to satisfy 3553(c). See United States v. Catano, 65 F.3d 219,
___ _____________ ______
230 (1st Cir. 1995); United States v. Schultz, 970 F.2d 960, 963
_____________ _______
& n.7 (1st Cir. 1992); United States v. McDowell, 918 F.2d 1004,
_____________ ________
1012 (1st Cir. 1990).13
3. Evidentiary Hearing
___________________
Moreno's final challenge is to the court's refusal to compel
Jimenez and Uroujo to appear as witnesses at his sentencing
hearing. We review the court's denial of an evidentiary hearing
for abuse of discretion. United States v. Garcia, 954 F.2d 12,
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19 (1st Cir. 1992).
At trial, the judge observed the government's case-in-chief,
including recordings and videotapes of Moreno discussing the
five-kilogram deal with Fazio and the undercover agent. Moreno
had an opportunity to cross-examine Fazio and the agent, and
succeeded in introducing Fazio's possible bias. And, at his
____________________
13 Moreno argues that the court should have made specific
findings in accordance with United States v. Dunnigan, 507 U.S.
_____________ ________
87 (1993). Since the obstruction of justice finding was not
premised on perjury, Dunnigan does not govern.
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sentencing hearing, Moreno testified extensively in support of
his version of events. In sum, Moreno had a more than adequate
opportunity to present information on any factor reasonably in
dispute. See U.S.S.G. 6A1.3(a). Further testimony from
___
Jimenez and Uroujo would have served no purpose. Accordingly, we
see no error in the court's refusal to issue subpoenas to these
witnesses.
The sentence of Jimenez is vacated, and the case is remanded
____________________________________________________________
for further proceedings consistent with this opinion and
_________________________________________________________________
resentencing. Moreno's sentence is affirmed.
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