United States v. Nelson

• Court: Court of Appeals for the First Circuit
• Decided: February 7, 2003
• Docket: 00-1422
• Status: Published

Opinion

United States Court of Appeals For the First Circuit

Nos. 00-1422 Volume II of II 00-1457 00-1534 00-1560 00-1561 00-1628 01-1150 01-1873 01-2248

UNITED STATES, Appellee,

v.

MILTON A. NELSON-RODRIGUEZ; LUIS A. ROMERO-LÓPEZ; MIGUEL A. RODRIGUEZ-RIVERA; EDUARDO ARROYO-MALDONADO; CARLOS BONET-GONZALEZ; ANGEL CHEVERE-GONZALEZ; LUIS CARIBE-GARCIA; RAÚL RIVERA-PÉREZ; VICTOR M. VALLE-LASALLE,

Defendants, Appellants.

APPEALS FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF PUERTO RICO

[Hon. Juan M. Pérez-Giménez, U.S. District Judge]

Before

Boudin, Chief Judge, Lynch, Circuit Judge, and Shadur,* Senior District Judge.

* Of the Northern District of Illinois, sitting by designation. Marlene Aponte Cabrera for appellant Nelson-Rodriguez.

Rafael F. Castro Lang for appellant Romero-López.

Jose A. Suarez-Santa for appellant Rodriguez-Rivera.

Raymond L. Sanchez Maceira for appellant Arroyo-Maldonado.

Mauricio Hernandez Arroyo for appellant Bonet-Gonzalez.

Raymond Rivera Esteves for appellant Chevere-Gonzalez.

Marlene Gerdts for appellant Caribe-Garcia.

Linda George for appellant Rivera-Pérez.

Luz M. Rios Rosario for appellant Valle-Lasalle.

William C. Brown, Attorney, U.S. Department of Justice, with whom H.S. Garcia, United States Attorney, was on brief for appellee.

February 7, 2003 H. Apprendi (Nelson, Rodriguez, Arroyo, Bonet, Chevere, Caribe,

Rivera, and Valle)

All of the appellants except for Romero, who pled guilty,

argue that their sentences were imposed in violation of Apprendi v.

New Jersey, 530 U.S. 466 (2000). Apprendi held that "[o]ther than

the fact of a prior conviction, any fact that increases the penalty

for a crime beyond the prescribed statutory maximum must be

submitted to a jury, and proved beyond a reasonable doubt." Id. at

2362-63. The defendants raise several distinct Apprendi claims,

and we address each in turn.

1. Facial Challenge to 21 U.S.C. § 841

The defendants make a facial challenge to 21 U.S.C. § 841.13

Section 841(a) makes it unlawful for any person to knowingly or

intentionally distribute or possess with intent to distribute a

controlled substance. Section 841(b) lists the penalties for

violation of section 841(a), which vary depending on the drug type

and quantity. Defendants say this renders the statute facially

unconstitutional.

This argument about § 841 is foreclosed by United States v.

Collazo-Aponte, 281 F.3d 320 (1st. Cir. 2002), which held that

"there is nothing in the statutory language that explicitly defies

13 The defendants were convicted under 21 U.S.C. § 846, not 21 U.S.C. § 841, but they challenge § 841 because § 846 makes it unlawful to attempt or conspire to commit the offenses listed in § 841. Therefore, the constitutionality of § 846 is dependent upon the constitutionality of § 841.

-55- Apprendi" because "[t]he statute is silent as to who makes these

findings and under what burden of persuasion." Id. at 325. Our

decision in Collazo-Aponte is consistent with the decisions of all

circuits that have addressed this issue. See, e.g., United States

v. Buckland, 289 F.3d 558, 562 (9th Cir. 2002) (en banc); United

States v. McAllister, 272 F.3d 228, 232 (4th Cir. 2001); United

States v. Brough, 243 F.3d 1078, 1079 (7th Cir.), cert. denied, 534

U.S. 889 (2001).

Collazo-Aponte similarly rejected the claim that § 841(b)

includes a mens rea requirement as to the type and quantity of

drugs. Section 841(a) requires the defendant to "knowingly or

intentionally" possess controlled substances with an intent to

distribute. The defendants argue that this mens rea requirement

applies to all elements of the crime, including those listed in §

841(b). However, as we held in Collazo-Aponte, "The plain language

of § 841(b) requires the government to prove only that the offense

'involved' a particular type and quantity of drugs, not that the

defendant knew that he was distributing that particular drug type

and quantity." 281 F.3d at 326. The presumption in favor of a

scienter requirement does not apply in this case because the

elements in § 841(b) only set the penalty and do not criminalize

otherwise innocent conduct.

2. Vague Allegations in Indictment

Defendants argue that the indictment was inadequate in that it

-56- made only vague allegations as to the type and quantity of the

drugs involved in the conspiracy. It is true that Apprendi

considers any fact (other than a prior conviction) that increases

the penalty for a crime beyond the statutory maximum to be an

element of the crime. But the indictment here easily meets this

requirement. The superseding indictment charged that the

defendants possessed with intent to distribute over 1,000 kilograms

of cocaine, five kilograms of heroin, and 5,000 pounds of

marijuana. Furthermore, it provided the drug type and quantity for

each of the planned importations at issue at trial, stating for

example that Arroyo and Rivera met "two other persons known to the

Grand Jury," CIS Hernandez and Diaz, to discuss the importation of

approximately 1,200 kilograms of cocaine into Puerto Rico in May

1997, and that Rivera, Torres, and Chevere received a shipment of

250 kilograms of cocaine in July 1997. Such detail is more than

sufficient to meet Apprendi's mandate, and we therefore reject

defendants' claim.

3. Lack of Jury Determination of Drug Type and Quantity

Defendants argue that their sentences must be vacated because

the jury did not determine drug type or quantity. In fact, the

jury verdict sheet asked simply whether a particular defendant was

guilty of the one count in the indictment, a copy of which was

provided to the jury. The indictment charged that the defendants

did unlawfully, knowingly, willfully, and intentionally combine, conspire, confederate, and agree together with divers

-57- other persons to the Grand Jury known and unknown, to possess with intent to distribute amounts of cocaine, a Schedule II narcotic drug controlled substance, which amounts of cocaine exceeded One Thousand (1,000) kilograms; heroin, a Schedule I, Narcotic Drug Controlled Substance, which amounts of heroin exceeded Five (5) kilograms; and marijuana, a Schedule I controlled substance, which amounts exceeded Five Thousand (5,000) pounds of marijuana

(emphasis added). It also specified particular amounts and kinds

of drugs for transactions in which those defendants participated.

We understand the argument to have several parts, including

first that the jury, at a minimum, had to decide the drug quantity

and type for the underlying conspiracy (to the extent of

determining a quantity which sets the maximum sentence under § 841

that would be applicable to the conspirators). The argument moves

to another level with the assertion that it was error for the trial

judge to deny the requests of several defendants that the jury make

an individualized determination as to the drug type and quantity

which could be attributed to that defendant. Both arguments have

in common the assertion that Apprendi required these issues to be

submitted to the jury in light of the fact that the defendants

received sentences greater than the default statutory maximum. The

relevant default statutory maximum is based on distribution of less

than 50 kilograms of marijuana, which produces a maximum sentence

of five years for first felony drug convictions and ten years if

there is a prior such conviction. 21 U.S.C. § 841(b)(1)(D).

It is common ground, and the government concedes, that the

-58- defendants were entitled to some form of jury determination as to

quantity -- whether general or individual is a separate question --

before being subject to more than the default statutory maximum.

Here, there was no jury determination of either sort. One might

suppose from the indictment quoted above that the jury necessarily

found the quantities there specified, but in fact review of the

jury instructions confirms that the jury was asked only to

determine whether there was a conspiracy as charged, not whether it

covered any specific amounts of drugs. The government does not

claim otherwise.

However, the jury's failure to determine drug type and amount

is not fatal if the evidence overwhelmingly establishes the amount.

United States v. Cotton, 535 U.S. 625 (2002). In this instance,

our review shows that this is so as to all defendants, whether the

test is plain error or harmless error and whether the figure

relates to the overall conspiracy or to the individual defendant.

We will return to these calculations in due course. But for the

sake of future litigation, it is useful to say something more about

both the requirements for preservation of Apprendi claims and the

problem of general versus specific findings as to amount of drugs.

We begin with the latter.

In United States v. Derman, 298 F.3d 34, 42-44 (1st Cir.

2002), this court ruled that it was sufficient to satisfy Apprendi

if the jury found that the conspiracy charged was to distribute, or

-59- possess with intent to distribute, a specific quantity (assuming

that this figure triggered the higher maximum sentence at issue).

If the defendant were convicted of participating in such a

conspiracy, this necessarily meant that he was liable, for Apprendi

purposes, for the quantity of the overall conspiracy. We therefore

held that there was no Apprendi error where a jury

has determined that the conspiracy involved a type and quantity of drugs sufficient to justify a sentence above the default statutory maximum and has found a particular defendant guilty of participation in the conspiracy[.] [In this situation,] the judge lawfully may determine the drug quantity attributable to that defendant and sentence him accordingly (so long as the sentence falls within the statutory maximum made applicable by the jury's conspiracy-wide drug quantity determination).

Derman, 298 F.3d at 43.

A number of other circuits have taken the same view as to the

issue required to be decided by the jury if the default maximum is

to be exceeded. See United States v. Thomas, 274 F.3d 655 (2d Cir.

2001); United States v. Patterson, 241 F.3d 912 (7th Cir. 2001);

United States v. Nance, 236 F.3d 820 (7th Cir. 2000). Of course,

such a jury determination by itself merely establishes a new

statutory maximum under Apprendi; it does not set the defendant's

guideline sentence, which will often be less than the statutory

maximum and which depends on numerous determinations specific to

the individual defendant, including role in the offense, attributed

relevant conduct, past criminal history, and the like.

Derman thus answers in this circuit the defendants' claim that

-60- they are entitled under Apprendi to a defendant-specific finding by

the jury as to the amount of drugs properly attributed to an

individual defendant in a conspiracy case. But we recognize that

this is not necessarily the last word on the subject. Conceivably,

borrowing from related doctrines, one could construct a

foreseeability test of some kind -- attributing to each defendant

the amount that the individual agreed upon, actually handled, and

reasonably could have foreseen that others would handle -- and

could ask the jury by special interrogatories to identify such an

amount.

Derman itself involved a relatively simple conspiracy:

growing marijuana in an underground greenhouse, first on Derman's

property, then on another's. See 298 F.3d at 37. In such cases,

it would be a simple matter for the government to indict on the

charge that a particular defendant joined an agreement to possess

the quantity of drugs grown in the greenhouse, with the intent to

distribute that quantity, and to seek a special verdict to that

effect. That simple approach may break down for more complex

conspiracies involving multiple transactions of different amounts

of drugs imported at different times, with a shifting cast of

actors. A series of problems implicating sentencing then arises.

A particular defendant, for example, may have agreed to import

seven kilograms of a drug, but not agreed to import ten, although

it was reasonably foreseeable to him that his coconspirators would

-61- import ten. Or a particular defendant may have gone in and then

out of a conspiracy. See Edwards v. United States, 523 U.S. 511

(1998). There may be one conspiracy; there may be multiple

conspiracies. Or a defendant may raise Pinkerton issues. See

Pinkerton v. United States, 328 U.S. 640 (1946). Some of these

problems might be solved by more specificity in indictments, by

tailored instructions, and by special verdicts.

Such an endeavor would pose issues of its own too numerous to

recount in full. It would implicate the instructions that define

conspiracy, itself a tangled subject with built-in tension. It

could also have practical disadvantages for some defendants by

compromising later arguments they might otherwise make to the judge

concerning the application of the sentencing guidelines. But

Apprendi itself is a recent innovation; it is too early to expect

all of its implications to be worked out, and only the Supreme

Court can provide final guidance. It is enough here that Derman

provides provisional guidance for the circuit and that the outcome

for the defendants in this case would not change even if Derman

were overturned.

In explaining this last determination, we consider first the

level of review to which each defendant is entitled and then

examine separately the evidence bearing on drug quantity

attributable to each individual defendant.

-62- a. Preservation of Objection

Valle's appeal raises the question, new to us, of what must be

done at trial to preserve an Apprendi objection. Valle was

convicted at the second trial, after the Apprendi decision.14 In

our only case holding an Apprendi objection preserved, the

objection was raised both at trial and at sentencing. United

States v. Bailey, 270 F.3d 83, 88-90 (1st Cir. 2001). Apprendi is

primarily about sentencing, but it also has implications for

indictment and trial, at least in relation to a sentence which

rests on facts which elevate the sentence above the statutory

minimum.

For future cases, we think it sufficient if the defendant

raises the issue at sentencing. The defendant, of course, has no

interest in being sentenced above the maximum and no incentive to

request that the jury specifically determine those facts which

would carry him above that level. The government, on the other

hand, does have an interest in going above the maximum, so it

should bear the burden of requesting submission of the issue to the

jury. Further, a defendant will not know whether there is an

14 Apprendi was decided on June 26, 2000. We have been asked here to evaluate whether there was Apprendi error in two trials, one of which took place before Apprendi was decided and the other of which began after Apprendi. These cases were indicted in 1998, and the first trial came to verdict in October 1999. Five of the six appellants convicted at this first trial were also sentenced before the Apprendi decision; Caribe, the sixth, was sentenced on December 15, 2000. Valle and Rivera were convicted at the second trial, which began in September 2000, after Apprendi.

-63- Apprendi error until sentencing, and then only if the court

considers a sentence above the maximum. An objection from

defendant at the point of sentencing will be timely.

Rivera requested before the jury was charged that the district

court submit the question of drug quantity and type to the jury in

a special verdict. Valle joined in this initial objection. Rivera

renewed his objection at sentencing, but Valle did not. The

government argues that Valle waived his Apprendi claim by failing

to renew his objection after the jury was charged or at sentencing.

The district court denied Rivera and Valle's request, presumably

because this court had not yet held that Apprendi applied to § 846

prosecutions; under prior circuit law, the drug quantity and type

determination for sentencing purposes was for the judge to decide.

See, e.g., United States v. Lindia, 82 F.3d 1154, 1160-61 (1st Cir.

1996). It was not until January 2, 2001, some three months after

the trial judge acted here, that this circuit decided that Apprendi

applied to §§ 841 and 846. United States v. Baltas, 236 F.3d 27,

40-41 (1st Cir. 2001).

Thus, this case may be viewed as a transition case to a new

post-Apprendi regime, before this court applied Apprendi to

prosecutions under §§ 841 and 846. In this transition context,

where the defendant did raise the issue and ask for a special

verdict, we have sympathy for the argument that this is enough to

preserve the Apprendi objection. Still, given Bousley v. United

-64- States, 523 U.S. 614 (1998), the waiver analysis is very

complicated and we prefer to assume rather than decide that the

issue was preserved in these circumstances.

b. Valle

Valle's sentence of 360 months exceeds the default statutory

maximum for cocaine offenses of twenty years and so raises a valid

claim of Apprendi error.

The jury found Valle guilty beyond a reasonable doubt of

participating in a drug conspiracy. The only transaction in which

Valle was alleged to be a participant was the planned importation

of 1,100 kilograms of cocaine in the summer of 1997. Therefore the

jury must have found that Valle participated in this transaction.

The only issue is the type and amount of drugs involved in this

transaction, an issue that appears to have been undisputed at

trial. See, e.g., United States v. Swatzie, 228 F.3d 1278, 1283

(11th Cir. 2000) (affirming where there was no evidentiary basis

for the jury to find that the defendant had possessed cocaine with

intent to distribute but that the quantity of cocaine involved was

less than five grams).

CI Hernandez testified on direct examination at the second

trial that the transaction involved 1,100 kilograms of cocaine. CI

Diaz also testified that the transaction was to involve between

1,000 and 1,200 kilograms of cocaine. The drug type and quantity

was not the subject of any questions on cross-examination; indeed,

-65- defense counsels' questions appear to take the drug type and

quantity as a given. Nor did defense counsel raise the issue in

closing arguments. Finally, Valle does not point to any evidence

on appeal that would cast doubt on the alleged drug type or

quantity involved in this transaction. See, e.g., United States v.

Martinez-Medina, 279 F.3d 105, 122 (1st Cir. 2002) (dismissing

defendants' Apprendi claims under harmless error review in part

because neither defendant seriously denied that the conspiracy

involved at least five kilograms of cocaine). We thus conclude

that the Apprendi error as to Valle was harmless.

c. Rivera

Any Apprendi error against Rivera was also harmless. Rivera

was sentenced to life imprisonment, while the default statutory

maximum for a defendant with a prior felony drug conviction (such

as Rivera) is ten years. The government concedes that Rivera

preserved his Apprendi claim because he raised it at trial and at

sentencing. The only issue, therefore, is whether the jury must

have found Rivera guilty of conspiring to possess at least half a

kilogram of cocaine with an intent to distribute. The trial judge

can sentence a defendant with a prior felony drug conviction to

life imprisonment based on that amount of cocaine. See 21 U.S.C.

§ 841(b)(1)(B).

At trial, the government produced overwhelming evidence that

the transactions in which Rivera participated involved at least

-66- half a kilogram of cocaine. CI Hernandez and CI Diaz testified as

to the amounts involved in two planned cocaine importations of

1,100 kilograms and 700 kilograms. Torres, the cooperating

defendant, testified that Rivera was involved in the successful

importation of 250 kilograms of cocaine. Their testimony was

supported by evidence from wiretaps and other surveillance.

Rivera's counsel did not contest the type or amount of drugs

involved in any of these importations at trial. Rivera argues on

appeal that the jury could not have been sure of the drug type or

quantity involved because these were "dry" conspiracies, which

means that the government did not seize any drugs. The amount of

the drugs was clear, nonetheless. There is simply no serious

argument that the jury could have convicted Rivera believing that

he participated in a conspiracy involving less than half a kilogram

of cocaine.

Rivera also relies on our decision in Collazo-Aponte to argue

that an Apprendi error can never be harmless. That case does not

stand for this proposition. The defendant in Collazo-Aponte did

not preserve his Apprendi error at trial, which means that this

court normally would have reviewed his claim under plain error

review and, as part of that inquiry, examined the evidence against

him. We did not do so, however, because the government conceded

that the error was plain. Collazo-Aponte, 281 F.3d at 324. Thus

there was no reason for the court to go through the plain error

-67- analysis. Had the government not made this concession, we would

have reviewed the evidence presented at trial to determine whether

the defendant's Apprendi claim survived plain error review.

d. Arroyo

Arroyo's sentence of 324 months was also contrary to Apprendi

because it exceeded the ten-year default statutory maximum for

prior offenders. Arroyo did not raise an Apprendi claim before the

district court, and review is for plain error. Arroyo, who was

replaced as Rivera's lieutenant when he demanded a million dollars,

was connected only to the first planned importation, involving

1,100 kilograms of cocaine. The jury could have convicted him only

on this basis. Arroyo did not dispute at trial the drug type or

amount involved in this planned importation, nor does he dispute

these facts on appeal. Moreover, no jury could have failed to find

beyond a reasonable doubt that the conspiracy involved some amount

of cocaine, triggering a maximum sentence of thirty years. CI

Hernandez testified in great detail about their plans to import

1,100 kilograms of cocaine, and CI Diaz testified to some of the

same facts. There was no plain error.

e. Caribe

We review Caribe's Apprendi claim for harmless error because

he raised the claim at sentencing. Caribe was sentenced to 420

months, which was above the applicable five-year statutory maximum.

This sentence would be authorized by 21 U.S.C. § 841(b)(1)(B) if

-68- the conspiracy involved at least half a kilogram of cocaine or more

than 100 kilograms of marijuana. Caribe argues that the error was

not harmless because the evidence linking him to the drug

conspiracy was slim and relied primarily on the testimony of

government informants of dubious credibility. The evidence against

Caribe was much stronger than his re-telling of it; but he has

simply focused on the wrong target. The jury did convict him of

conspiring to possess drugs with an intent to distribute them; the

only remaining issue is the type and quantity of the drugs

involved.

The jury could not have convicted Caribe without finding that

he was involved in the conspiracy's final planned importation.

Caribe did not dispute the type or quantity of drugs involved in

that plan at trial and does not do so on appeal. CI Diaz testified

that the importation involved 700 kilograms of drugs. There is

less evidence about the type of drugs involved. Diaz testified

only that there were "700 kilos" involved; he never explicitly said

what type of drugs the conspirators planned to import, although one

question during his cross-examination referred to cocaine, and he

did not correct defense counsel. Nonetheless, it does not matter

for Apprendi purposes what type of drug was involved. The only

drugs charged in the indictment were cocaine, heroin, and

marijuana. Under § 841(b)(1)(B), Caribe's sentence was permissible

regardless of what type of drugs were involved, as long as the

-69- conspiracy involved at least 700 kilograms of any of these types of

drugs.

f. Bonet

Bonet's sentence of 360 months was contrary to Apprendi

because it exceeded the ten-year default statutory maximum for

prior offenders. His sentence would be valid under 21 U.S.C.

§ 841(b)(1)(D) as long as he conspired to possess with intent to

distribute any amount of cocaine or at least fifty grams of

marijuana. He argues that we should review his claim for harmless

error because his co-defendant Nelson made an Apprendi objection.

However, the trial judge required each defense counsel to make

their own objections, and Bonet's counsel did not join in Nelson's

Apprendi objection. We review Bonet's claim for plain error.

Like Caribe, the evidence tied Bonet to the conspiracy's final

planned importation in the fall of 1997. The same analysis that

applied to Caribe also applies to Bonet: there was overwhelming

evidence of a quantity of "700 kilos," and that quantity of drugs

is sufficient to justify his sentence regardless of whether the

type of narcotic was cocaine, heroin, or marijuana. See 21 U.S.C.

g. Nelson

Nelson's sentence of 293 months raises a potential Apprendi

issue because it exceeded the ten-year default statutory maximum

for prior offenders. His sentence would be permissible if the

-70- conspiracy involved at least 50 kilograms of marijuana or any

amount of cocaine. See 21 U.S.C. § 841(b)(1)(D). Nelson made an

Apprendi objection only during trial; we review his claim for

harmless error.

The primary evidence against Nelson at trial concerned the

planned importations of 36 kilograms of cocaine and approximately

6,000 pounds of marijuana. The jury could not have convicted

Nelson without finding that he was involved in at least one of

these ventures. The Apprendi error was harmless because evidence

establishing the amount and type of drugs involved in both of these

plans was overwhelming and undisputed at trial. CI Hernandez and

cooperating defendant Torres both testified that Nelson had

attempted to bring 36 kilograms of cocaine into Puerto Rico. There

was some dispute as to Nelson's motivations for participating in

the transaction, but he never disputed the type or quantity of

drugs involved. As to marijuana, the government at trial played a

recording of a conversation between Rivera and Nelson in which they

discussed importing 6,000 pounds of marijuana. Nelson offered no

evidence to rebut this point, and at sentencing did not dispute the

contention that the plan involved 6,000 pounds of marijuana.

h. Chevere

Chevere's sentence of 540 months raised a potential Apprendi

issue because it exceeded the five-year default statutory maximum.

The sentence would be permissible under 21 U.S.C. § 841(b)(1)(A) as

-71- long as he was involved in a conspiracy involving at least five

kilograms of cocaine or 1,000 kilograms of marijuana. Chevere

argues that his claim should be reviewed for harmless error because

he says his counsel raised an Apprendi claim at sentencing. The

transcript of his sentencing hearing shows that his counsel

challenged only Chevere's involvement in the conspiracy and the

base level calculation, not the amount or type of drugs. We review

his claim for plain error.

Although there was not evidence that Chevere conspired to

import marijuana, the evidence did tie him to the successful

importation of 250 kilograms of cocaine. Torres, the cooperating

defendant, testified that Chevere was in charge of security for

that importation. There was no dispute about the type or quantity

of drugs involved. Torres was directly involved in the importation

and testified that he and the other conspirators imported 250

kilograms of cocaine. He described in detail how he and Rivera

split the load and how Rivera planned to send his share to New York

for distribution. CI Hernandez also testified that Rivera told him

that he successfully imported 250 kilograms of cocaine into Puerto

Rico.

Chevere claims that the transaction never took place despite

Torres and Hernandez's testimony to the contrary. To support this

claim, he points to the fact that the FBI, which had Rivera's

organization under surveillance, did not see the delivery of

-72- cocaine. However, the jury necessarily found that the transaction

did occur, whether or not it was observed by investigators

directly. There was no evidence that this importation involved a

smaller amount of cocaine.

i. Rodriguez

Rodriguez's sentence of 151 months was contrary to Apprendi

because it exceeded the default statutory maximum of five years.

The sentence would be permissible as long as Rodriguez participated

in a conspiracy involving any amount of cocaine. We review his

claim for plain error because he did not raise it at trial.

The only evidence at trial relating to Rodriguez tied him to

the successful importation of 250 kilograms of cocaine. Taped

telephone conversations played at trial showed that Rodriguez

delivered the cocaine imported in that transaction to New York,

where it was distributed by Figueroa, Caribe's brother-in-law. The

jury could not have convicted Rodriguez without believing that he

was involved in this aspect of the conspiracy. The amount and type

of drugs in the successful importation were undisputed at trial,

and thus we reject Rodriguez's Apprendi claim.

I. Substantial Assistance Departure (Romero)

Romero pled guilty and presents one issue, a sentencing issue,

on his appeal. He argues that the sole reason the government

failed to move that he be given a Section 5K1.1 sentence reduction

for substantial assistance was an impermissible one: it was in

-73- retaliation for his telling the truth in his third debriefing, a

truth which was exculpatory as to codefendant Ortiz.

U.S.S.G. § 5K1.1 provides: "Upon motion of the government

stating that the defendant has provided substantial assistance in

the investigation or prosecution of another person who has

committed an offense, the court may depart from the guidelines."

See also 18 U.S.C. § 3553(e) ("Upon motion of the Government, the

court shall have the authority to impose a sentence below a level

established by statute as minimum sentence so as to reflect a

defendant's substantial assistance in the investigation or

prosecution of another person who has committed an offense.").

Romero's plea agreement stated that "[t]he United States reserves

its option to seek any departure from the applicable sentencing

guidelines, pursuant to Section 5K1.1 . . . if in its discretion

the United States determines that such a departure is appropriate."

The agreement further specified that "[t]he defendant agrees that

the decision whether to file such motion rests in the sole

discretion of the United States."

The district court, after hearing proffers from both counsel,

rejected the argument and declined to take testimony from Agent

Plichta, who conducted the debriefings at issue here. Romero

argued that there was error in not holding an evidentiary hearing

and in not compelling the government to file such a motion.

Our review of questions of law is de novo; our review of the

-74- fact-based conclusion of the district court as to the substantial

assistance question is for clear error. See United States v. Doe,

233 F.3d 642, 643-44 (1st Cir 2000).

Implicit in the question presented is an issue of law:

assuming Romero's claims were true, whether it is permissible for

the government to decline to seek a substantial assistance

departure in retaliation for a cooperating defendant's truthful

disclosure of exculpatory information about codefendants. In this

area, the government acts under two constraints. First, the law is

clear that the government may not base its decision on an

unconstitutional motive, such as racial prejudice. See Wade v.

United States, 504 U.S. 181, 185-86 (1992). Second, because the

government entered into a plea agreement with Romero, it had to

carry out in good faith the obligations it assumed under the

agreement. See United States v. Alegria, 192 F.3d 179, 186-87 (1st

Cir. 1999); see also United States v. Davis, 247 F.3d 322, 325 (1st

Cir. 2001). This good-faith requirement applies even though the

plea agreement specifies that the "government retains absolute

discretion with respect to the filing of a section 5K1.1 motion."

Alegria, 192 F.3d at 186-87.

Whether viewed as part of the Wade obligation or the Alegria

obligation, the government may not base its refusal to seek a

substantial assistance departure on a defendant's truthful

disclosure of exculpatory information. We can think of few things

-75- more corrosive to the criminal justice system than prosecutorial

retaliation against a witness for telling the truth. If these were

the government's grounds, they would both be impermissible and have

no rational relationship to a legitimate government end. Cf.

Davis, 247 F.3d at 326.

The district court held that Romero had not made a threshold

showing of improper motivation by the government. See Alegria, 192

F.3d at 187. In explaining to the district court its reasons for

not filing a Section 5K1.1 motion, the government used language

that was likely to arouse suspicion. It complained that, because

of Romero's statements and writings produced at the third of his

four debriefings, the prosecution was forced to provide defense

counsel with Brady and Jencks material. Appropriately concerned by

these statements, the district judge investigated further and took

proffers from both counsel.

In the end, the district court was satisfied that the

government had reason to think Romero was not truthful at the last

two debriefings and, while he had given assistance, he had not

given substantial assistance. Romero's untruthfulness was shown by

the fact that he did not disclose certain information helpful to

Ortiz and Nelson until his third debriefing, and that this newly-

disclosed information appeared to be inconsistent with information

provided by another cooperating witness. As the trial judge noted,

the government had told the court it intended to use Romero as a

-76- prosecution witness at trial but then did not do so. This decision

not to call Romero as a witness was entirely consistent with the

government's view, expressed at sentencing, that Romero was not

truthful. And, as the district court aptly noted, substantial

assistance is a higher standard for a defendant to meet than mere

cooperation. Romero's failure to be forthcoming in earlier

debriefings evidenced his failure to meet this higher standard.

When faced with such Section 5K1.1 claims where there is a

plea agreement, the government bears the modest burden of

production, not persuasion. Alegria, 192 F.3d at 187. The

government must offer "facially adequate reasons." Id. at 188. It

did so here. The judge, who sat through a lengthy trial and

inquired into this matter, found nothing impermissible about the

government's reasons for declining to seek a substantial assistance

departure. Given the judge's extensive exploration of the issue

with counsel, no separate evidentiary hearing was required.

J. Supervised Release Terms (Bonet and Rodriguez)

Bonet and Rodriguez challenge the length of their terms of

supervised release. The district judge sentenced Bonet to twenty

years of supervised release and Rodriguez to fifteen years. Both

defendants claim that these terms were invalid because they were

disproportionately longer as a percentage of their total years of

imprisonment than their codefendants' terms. This argument is

foreclosed by 18 U.S.C. § 3742(a), which establishes the limited

-77- circumstances in which a defendant can seek review of his sentence.

As the Seventh Circuit held in United States v. Rios-Calderon, 80

F.3d 194, 198 (7th Cir. 1996), "nothing in § 3742(a) allows review

of a sentence imposed in conformity with the Guidelines on the

ground that a codefendant was treated differently." See also

United States v. Youngpeter, 986 F.2d 349, 356 (10th Cir. 1993)

("Sentencing differences due to individual conduct as considered by

the Sentencing Guidelines does not make a sentence

disproportionate.").

Rodriguez also argues that his supervised release term is

barred by U.S.S.G. § 5D1.2. We note at the outset that this claim

was nearly forfeited because of the skeletal manner in which it was

raised. See Mass. Sch. of Law v. Am. Bar Ass'n, 142 F.3d 26, 43

(1st Cir. 1998) (claim is forfeited if it is raised in a

perfunctory manner unaccompanied by developed argumentation). But

we will give Rodriguez the benefit of the doubt and find that the

claim was not forfeited. Rodriguez's counsel also failed to object

to the length of the supervised release term at sentencing, which

would normally mean that his claim could be reviewed only for plain

error. But we will again give Rodriguez the benefit of the doubt

because he was not given advance notice in the presentence report

or by the judge or prosecutor that he could be sentenced to more

than five years of supervised release, the maximum term specified

in the guidelines.

-78- We now turn to the merits of Rodriguez's claim. U.S.S.G. §

5D1.2 states that supervised release terms for Class A or B

felonies shall be "at least three years but not more than five

years." The relevant statute, 21 U.S.C. § 841(b)(1)(A), provides

that the defendant shall be sentenced to a term of supervised

release of "at least five years." This court's recent decision in

United States v. Cortes-Claudio held that these provisions should

be read together to mean that a defendant convicted under 21 U.S.C.

§ 841(b)(1)(A) can be sentenced to only five years of supervised

release unless the judge makes a permissible upward departure from

the guidelines. 312 F.3d 17, 18-19 (1st Cir. 2002). The judge can

make such a departure if he finds that there are aggravating

circumstances "of a kind, or to a degree, not adequately taken into

consideration by the Sentencing Commission," and if the parties are

given advance notice that the judge is contemplating making such a

departure and of the grounds on which the judge is contemplating

departing. Id. at 24; see also United States v. Burns, 501 U.S.

129, 138-39 (1991).

The district judge in this case did not anticipate this

court's decision in Cortes-Claudio and mistakenly concluded that

the guidelines did not apply to the length of a supervised release

term imposed under 21 U.S.C. § 841. Thus he did not give the

parties notice of a possible upward departure or make the required

findings of aggravating circumstances to support the departure. We

-79- accordingly vacate Rodriguez's fifteen-year supervised release term

and remand to the district court for re-sentencing as to the length

of the term of supervised release. On remand, should the district

court find that there are aggravating circumstances of a kind, or

to a degree, not adequately taken into consideration by the

Sentencing Commission, it must still give the parties advance

notice that it is contemplating departing and the grounds of the

possible departure and give them an opportunity to respond.

K. Other Sentencing Guidelines Issues

1. Drug quantities (Caribe, Bonet, Valle, Chevere, Arroyo, Nelson, Rodriguez)

In sentencing, the district court took into account the amount

of drugs that could be attributed to each defendant. Several

defendants challenge these determinations, which are distinct from

claims that the determination of quantity by the judge rather than

the jury violated Apprendi.15 We review the trial court's factual

determinations at sentencing for clear error. United States v.

Damon, 127 F.3d 139, 141 (1st Cir. 1997). Legal interpretations of

the sentencing guidelines are reviewed de novo. United States v.

15 As we noted above, Apprendi only requires the jury to determine the drug type and quantity involved in the conspiracy. After the jury has made this determination, the judge can make individualized determinations about the amount of drugs attributable to each defendant. Even though the jury did not make its initial determination, we found no reversible error as to any defendant, so that the judge could still determine the amount of drug attributable to each defendant.

-80- Ranney, 298 F.3d 74, 80 (1st Cir. 2002).

a. Caribe

Caribe argues that the court erred in setting his base offense

level at 38, which is applicable to a quantity of 150 kilograms or

more of cocaine. The court set the base offense level after

determining that 745 kilograms of cocaine could be attributed to

Caribe. The court held that Caribe was directly involved in the

conspiracy to import 700 kilograms of cocaine in the fall of 1997.

This determination was consistent with the testimony of CI Diaz,

who testified that Caribe was a key player in several meetings to

plan the details of this importation. It also attributed to Caribe

45 kilograms of cocaine out of the successful 250 kilogram

importation, which he sent to his brother-in-law in New York for

distribution. Torres had testified that Caribe was in charge of

moving some amount of cocaine up to New York, and that he believed

the amount to be "about forty-five" kilograms. It was not clear

error for the court to conclude that Caribe was responsible, at

least in part, for distributing 45 kilograms of cocaine. This

total quantity of 745 kilograms of cocaine supports the court's

decision to set Caribe's base offense level at 38.

b. Bonet

The court found Bonet responsible for at least 150 kilograms

of cocaine, based on Bonet's involvement with the planned

importation of 700 kilograms of cocaine. This determination was

-81- not clear error considering Bonet's role in planning this

importation.

Bonet argues that the court should have reduced the amount of

cocaine attributed to the defendants because of the intensive

involvement of CIS Hernandez and Diaz in the conspiracy. This is

a type of improper sentencing factor manipulation argument, for

which Bonet has the burden. As stated in United States v. Montoya,

"garden variety manipulation claims are largely a waste of time."

62 F.3d 1, 4 (1st Cir. 1995). It is insufficient to say that the

idea of the conspiracy originated with undercover agents, or that

conduct was encouraged by the government, or that the crime

exceeded in degree or kind what the defendant had done before.

Instead the defendant must show that elements like these were so

extensive that "the government's conduct must be viewed as

extraordinary misconduct." Id. (internal quotations omitted).

This standard is high in part because the defendant has the

opportunity to raise an entrapment defense at trial.

Bonet has fallen far short of this standard; he offers nothing

more than conclusory allegations. Furthermore, Hernandez testified

that the Colombians, not he or Diaz, set the amount involved in the

cocaine importations. For example, in the 700 kilogram

importation, Hernandez testified that the Colombians wanted the

organization to import 700 kilograms of cocaine as a test to

determine whether its members had the capability to import larger

-82- quantities of drugs in the future. Bonet also bragged to Diaz that

he and his team had been drug trafficking for years. It is

unlikely, therefore, that government agents encouraged Bonet or his

coconspirators to engage in conduct in which they would otherwise

have been unwilling to participate.

c. Valle

Valle argues that the judge erred in attributing at least 150

kilograms of cocaine to him. He did not raise this claim at

sentencing, and therefore it is waived. United States v. Shattuck,

961 F.2d 1012, 1015 (1st Cir. 1992) ("We do not review sentencing

guideline disputes which were not preserved before the district

court."). We have discretion to review waived guidelines claims in

"horrendous cases where a gross miscarriage of justice would

occur." United States v. Haggert, 980 F.2d 8, 11 (1st Cir. 1992).

This is not one of those cases. The evidence overwhelmingly tied

Valle to the planned importation of 1,100 kilograms of drugs. CI

Hernandez testified extensively about Valle's involvement in this

transaction and the amount and type of drugs involved.

d. Chevere

Chevere argues that the district court erred in finding that

he was involved in the importation of 250 kilograms of cocaine.

Torres testified that Chevere was in charge of security for this

successful transaction. Chevere argues that the district court

should not have used this transaction to set Chevere's base offense

-83- level, because an FBI agent who was watching the delivery location

testified that he did not actually see the drugs being delivered.

Whether the FBI agent saw it or not, there was ample additional

evidence at trial that the transaction took place, and that Chevere

was involved in it. There was no clear error.

e. Arroyo

Arroyo argues error in the attribution of 1,200 kilograms of

cocaine to him because the government did not show that he had the

capability to transport such a large amount of cocaine. Arroyo

argues that the government never proved that Arroyo owned a boat

that could be used to bring the cocaine to Puerto Rico. Under the

sentencing guidelines, if a planned drug transaction does not take

place, the sentencing court should base the defendant's drug-

quantity finding on the negotiated amount of drugs, in this case

1,200 kilograms. See U.S.S.G. § 2D1.1, cmt. n.12. However, the

court can use a lower amount if "the defendant establishes that he

or she did not intend to provide, or was not reasonably capable of

providing, the agreed-upon quantity of the controlled substance."

Id. Thus the burden is on Arroyo to show that he was not capable

of transporting 1,200 kilograms of cocaine. Arroyo has not met his

burden in this case and there was no clear error.

f. Nelson

Nelson argues that the district court erred in attributing

99.5 kilograms of cocaine to him. The court found that he was

-84- involved in the successful importation of 250 kilograms of cocaine

and had a role in distributing 50 kilograms from that shipment.

Torres testified that Rivera gave Nelson some unknown percentage of

Rivera's own share of the cocaine from this shipment. Rivera also

gave a percentage of his share to Caribe and to Chevere, but Torres

did not know exactly how much each of the three defendants

received; he only knew that together they received 50 kilograms.

Nelson and Rivera, in recorded conversations, discussed the price

at which they would be able to sell the cocaine. The court also

found that he had a role in the attempted importation of 36

kilograms of cocaine and the transaction involving 6,000 pounds of

marijuana. It also could have based its overall findings on

Nelson's more general involvement in distributing Rivera's share of

the cocaine. We see no clear error in the court's conclusion.

g. Rodriguez

Rodriguez argues that the district court erred in determining

that his base offense level was 34, which is applicable when the

judge attributes at least 15 kilograms of cocaine to the defendant.

The government alleged that Rodriguez was involved in delivering to

Figueroa in New York approximately 45 kilograms of cocaine from the

250 kilogram shipment. The government introduced taped

conversations in which Rivera told Figueroa that he had arranged

for someone to deliver the cocaine to Figueroa. The day before,

Rodriguez had flown to New York from San Juan. The government also

-85- introduced a recording of a conversation in which Rodriguez and

Rivera discussed the price of cocaine. At trial, Rodriguez

disputed that he had been involved in the cocaine delivery, but the

jury could not have convicted Rodriguez otherwise. The only

remaining issue is the amount of drugs that Rodriguez brought to

New York; Torres testified that Rivera sent "about 45" kilograms

there. It was not clear error for the judge to attribute at least

fifteen of those kilograms of cocaine to Rodriguez.

2. Minor Participant Adjustment (Bonet)

Bonet argues that the court erred in not granting him a two-

level reduction under U.S.S.G. § 3B1.2(b) for being a minor

participant in the conspiracy. The commentary to this section

states that "a minor participant means any participant who is less

capable than most other participants, but whose role could not be

described as minimal." U.S.S.G. § 3B1.2(b) cmt. n.5. In seeking

a § 3B1.2 adjustment, a defendant "has the burden of proving that

he is both less culpable than most others involved in the offense

of conviction and less culpable than most other miscreants

convicted of comparable crimes." United States v. Ortiz-Santiago,

211 F.3d 146, 149 (1st Cir. 2000). The court did not err in

refusing to grant this adjustment. The testimony at trial showed

that Bonet participated in several of the meetings in which the

conspirators planned the importation of 700 kilograms of cocaine.

Bonet was also responsible for testing the radio equipment that

-86- would be used. Finally, Bonet told CI Diaz that he had been part

of Rivera's drug trafficking team for many years. It was entirely

reasonable to conclude that Bonet was no minor participant.

3. Special Skills Enhancements (Valle and Bonet)

Section 3B1.3 of the sentencing guidelines provides that the

district court can increase the offense level two levels if the

defendant "used a special skill, in a manner that significantly

facilitated the commission or concealment of the offense." The

commentary to this section states, "'Special skill' refers to a

skill not possessed by members of the general public and usually

requiring substantial education, training or licensing. Examples

would include pilots, lawyers, doctors, accountants, chemists, and

demolition experts." U.S.S.G. § 3B1.3 cmt. n.3. We review the

district court's legal interpretation of the term "special skill"

de novo and its factual application for clear error. United States

v. Noah, 130 F.3d 490, 499 (1st Cir. 1997).

The district court increased Valle's offense level by two

levels because it found that Valle was going to be the boat captain

for the first planned importation of 1,100 kilograms of cocaine,

thus exercising a special skill. Valle did not object to this

enhancement at his sentencing hearing, and therefore he waived the

claim. Haggert, 980 F.2d at 10-11. Even if this claim were not

waived, the record amply supports the determination.

The district court enhanced Bonet's offense level by two

-87- levels because it found that his coconspirators were "counting on

his skills as a person knowledgeable with communication equipment."

The record establishes that Bonet had a special skill. CI Diaz

testified that on October 30, 1997, Bonet conducted a test of the

20/40 radio that the conspirators were planning to use to

communicate with the Colombians in order to complete the planned

importation of 700 kilograms of cocaine. A 20/40 radio is one that

can be used to communicate with any part of the world. Bonet

showed Diaz the antenna he had put on a tree outside his house.

Bonet then set up the radio and tried to contact the Colombians;

unbeknownst to him, the transmission was intercepted by the FBI.

Bonet conducted the test over high and low frequency channels and

had given the Colombians the same list of frequencies so that the

two groups could communicate. This evidence shows that Bonet had

a special skill within the meaning of § 3B1.3. Accord United

States v. Malgoza, 2 F.3d 1107, 1110 (11th Cir. 1993) (term

"special skills" applies to an "advanced level of radio operating

ability").

A defendant does not need to have formal education or

professional stature to have a special skill within the meaning of

§ 3B1.3. Noah, 130 F.3d at 500. Instead "a special skill can be

derived from experience or from self-tutelage." Id. Nonetheless,

the defendant must possess skills that members of the general

public would not have. Bonet's knowledge was more extensive than

-88- merely turning on a radio and speaking; he also knew how to

assemble the radio and its antenna and understood how to determine

and locate the frequencies necessary to communicate with the

Colombians.

The issue remains whether Bonet's skill "significantly

facilitated the commission . . . of the offense." U.S.S.G.

§ 3B1.3. Diaz did not testify that Bonet would be the person

operating the radios on the day the shipment was delivered. Two

reasonable inferences support a determination that Bonet's special

skill substantially facilitated commission of the crime. We review

both possible determinations for clear error.

First, Bonet's radio test in and of itself aided the

conspiracy. He was responsible for making sure that Rivera's

organization had the necessary radio equipment to handle such a

large importation of drugs. The Colombians would not be willing to

entrust Rivera's organization with the shipment if it could not

make this showing. Even though Bonet was unable to contact the

Colombians during his radio test, it did show Diaz (who, as an

intermediary, acted as the Colombians' representative) that

Rivera's organization had at least some of the necessary equipment

and skills.

Second, an inference that Bonet would be the one operating the

radios the day of the shipment could not be clear error. Bonet

played an integral part in the meetings. He told Diaz that he was

-89- skilled as a boat captain, but that he would not be the boat

captain for this shipment. Bonet argues that he never got a chance

to use his special skills to the full extent contemplated by his

conspirators. However, U.S.S.G. § 2X1.1(a) also covers intended

offense conduct that can be established with "reasonable

certainty." It was not clear error to conclude with reasonable

certainty that Bonet intended to use his special skill to

facilitate the crime. See United States v. Downing, 297 F.3d 52,

65 (2d Cir. 2002).

4. Firearm Enhancement (Caribe)

The district court increased Caribe's offense level by two

levels because the court determined that Rivera had a weapon in

Caribe's presence during part of the planning of the 700 kilogram

importation. U.S.S.G. § 2D1.1(b)(1) provides that the judge can

increase the offense level by two levels "if a dangerous weapon

(including a firearm) was possessed." The comment to this section

states that the enhancement applies if a weapon was present, unless

it is clearly improbable that the weapon was connected with the

offense. See U.S.S.G. § 2D1.1(b)(1), cmt. n.3.

The judge found that Caribe was present when Rivera gave CI

Diaz a gun to give to CI Hernandez. Diaz testified that he met

with Caribe and Rivera on August 16, 1997. At the end of the

meeting, Rivera gave Diaz a gun that he asked Diaz to give to

Hernandez. Rivera told Diaz that Hernandez could use the gun if he

-90- had to because it was "clean." Caribe claims that he left the

meeting before Rivera gave Diaz the gun, but this claim is not

supported by the record. Caribe was the last person to arrive at

the meeting, but Rivera gave Diaz the gun at the end of the meeting

as they were saying good-bye. It was not clear error for the judge

to determine that Caribe remained at the meeting at this point.

Caribe next argues that the government did not establish the

required nexus between the gun and the conspiracy. The prosecution

must show that the defendant (or in a conspiracy case, one of his

coconspirators) possessed a weapon during the offense. United

States v. McDonald, 121 F.3d 7, 10 (1st Cir. 1997); United States

v. Thornton, 306 F.3d 1355, 1358 (3rd Cir. 2002). The prosecution

does not have to show that the defendant or his coconspirators

actually used the gun in perpetrating the offense or intended to do

so. McDonald, 121 F.3d at 10. Once the prosecution has made this

showing, the burden shifts to the defendant to establish that a

connection between the weapon and the crime was clearly improbable.

Id. Caribe argues that the prosecution did not make its required

showing because it relied on the uncorroborated testimony of CI

Diaz. It is routine, and certainly not clear error, for the trial

judge to credit a witness's testimony in making sentencing

determinations, even if the testimony is not corroborated by other

evidence. Nor did the judge err in determining that Caribe's

coconspirator possessed the gun in connection with the conspiracy.

-91- 5. Leadership Enhancement (Caribe)

Caribe next argues that the court erred in increasing his

offense level by three levels after determining that Caribe was a

manager or supervisor in the organization. Section 3B1.1(b)

permits the court to enhance the sentence if "the defendant was

manager or supervisor (but not an organizer or leader) and the

criminal activity involved five or more participants or was

otherwise extensive." The court based its determination on CI

Diaz's testimony about Caribe's role in planning the importation of

700 kilograms of cocaine in the fall of 1997. For example, Diaz

testified that Caribe "controlled all of the beaches and the group

from Humacao, including the captain and the boats." Caribe also

told Diaz that Ortiz, who was supposed to captain the boat that

would bring the drugs into Puerto Rico, worked for him. According

to Diaz, Caribe said that "they [Rivera and Caribe] had the

captains, the boats, and the personnel that was needed to carry out

the job." This evidence is sufficient to support the court's

determination.

6. Downward Departure Requests (Valle and Nelson)

The district court denied motions by Valle and Nelson for

downward departures in their sentences. Valle argues that the

district judge abused his discretion by failing to depart from the

sentencing guidelines because of a claimed disparity between his

sentence and the sentence of some of his coconspirators. The

-92- argument fails; a court cannot depart from the sentencing

guidelines in order to correct a disparity between the sentences of

coconspirators. See United States v. Ortiz-Santiago, 211 F.3d 146,

150 (1st Cir. 2000) ("Disparity in sentencing amongst

coconspirators, without more, is not enough to justify a downward

departure.").16 Nelson argues for a downward departure based on his

necessity defense that he participated in the conspiracy only to

save his kidnapped nephew. This was committed to the non-

reviewable discretion of the district court. See United States v.

Romero, 32 F.3d 641, 653 (1st Cir. 1994).

L. Procedural Errors at Sentencing (Caribe)

1. Right to Speedy Sentencing

Caribe claims that his right to a fair trial was violated

because of excessive delay in his sentencing. Caribe was convicted

on October 1, 1999. All objections to the Presentence

Investigation Report were submitted by April 25, 2000, but he was

not sentenced until December 15, 2000. Thus, over fourteen months

passed between the date of conviction and the date of sentencing.

The Sixth Amendment provides that "[i]n all criminal

prosecutions, the accused shall enjoy the right to a speedy and

public trial." U.S. Const. amend. VI. The Supreme Court has not

16 It is far from clear that there was any disparity. Valle's sentence of 360 months was greater than four coconspirators' sentences and equal to or less than four other coconspirators' sentences.

-93- definitively held that this right extends to the sentencing phase.

See Pollard v. United States, 352 U.S. 354, 361 (1957) (assuming

without deciding that the sentence is part of the trial for

purposes of the Sixth Amendment). However, most circuits that have

addressed this issue have held that the right to a speedy trial

extends to this phase. See, e.g., United States v. Yelverton, 197

F.3d 531, 535-39 (D.C. Cir. 1999); Burkett v. Cunningham, 826 F.2d

1208, 1220 (3d Cir. 1987); United States v. Reese, 568 F.2d 1246,

1252-53 (6th Cir. 1977). Several other circuits, including this

one, have assumed without deciding that the right extends to

sentencing. See, e.g., Katz v. King, 627 F.2d 568, 576 (1st Cir.

1980); United States v. Rothrock, 20 F.3d 709, 711 (7th Cir. 1994).

No circuit has held that the right to a speedy trial does not apply

at this phase.17

We assume for the purposes of this appeal that the right to a

speedy trial extends to sentencing. We analyze the defendant's

claim under the four factors that the Supreme Court set out in

Barker v. Wingo, 407 U.S. 514, 530 (1972): the length of the

delay; the reason for the delay; the defendant's assertion of his

right; and prejudice to the defendant. None of these factors is a

necessary or sufficient condition to the finding of a deprivation

17 A judge is also required under Fed. R. Crim. P. 32(a) to sentence a defendant "without unnecessary delay." Caribe has not argued that the delay in his case violated this rule, and therefore we do not address whether he would have a possible claim thereunder.

-94- of the right to a speedy sentencing. See id. at 533.

Applying these factors to the case at hand, we conclude that

any right to speedy sentencing was not violated. A fourteen-month

delay between the date of conviction and the date of sentencing is

long enough to trigger an inquiry into the other Barker factors.

See Perez v. Sullivan, 793 F.2d 249, 254 (10th Cir. 1986) (finding

a fifteen-month delay long enough to provoke an inquiry into the

remaining three factors); see also Barker, 407 U.S. at 530 ("Until

there is some delay which is presumptively prejudicial, there is no

necessity for inquiry into the other factors that go into the

balance"); Katz, 627 F.2d at 577 (finding that a four-month delay

is "not unreasonable and certainly not of constitutional

dimensions").

Caribe does not make a persuasive showing on any of the other

factors. It took approximately seven months for the probation

officer to complete the presentence report and for the parties to

submit their objections. This time was not excessive given the

length of the trial, the number of defendants, and the complexity

of the evidence, and indeed Caribe has not challenged this portion

of the delay. Much of the later delay can be attributed to

Caribe's own motions. He filed a series of motions to continue his

sentencing: the first such motions were filed on December 17, 1999

and February 1, 2000 and were denied on January 13, 2000 and

February 4, 2000, respectively; the court acceded to later requests

-95- from Caribe's counsel to postpone the sentencing, which had been

scheduled for February 25, 2000; the court eventually denied

Caribe's December 6, 2000 motion to continue his sentencing on

December 13, 2000 and sentenced Caribe on December 15, 2000.

Caribe also filed a motion for a new trial, which the court denied

on December 15, 2000.

Finally, and most importantly, Caribe has not shown he

suffered any prejudice as a result of the fourteen-month delay. The

prejudice resulting from a delay between indictment and trial is

obvious: the accused must live with the anxiety and concern of

facing trial; he may have to spend an extended length of time in

custody; and his defense may be impaired if witnesses' memories

fade. However, "[m]ost of those interests diminish or disappear

altogether once there has been a conviction." Perez, 793 F.2d at

256. Thus, the courts have great reluctance to find a speedy trial

deprivation where there is no substantial and demonstrable

prejudice. Id. Caribe argues that the delay made it more

difficult for him to challenge the contested factual allegations in

the presentence report, but he does not explain which allegations

or how he was prejudiced. He also claims that the delay gave the

government more time to persuade the probation officer to include

unwarranted enhancements in the presentence report, but as

discussed below, Caribe was not prejudiced by these communications.

Caribe may have been anxious about the length of the sentence the

-96- judge would impose, but such anxiety is present in every sentencing

and cannot be sufficient to meet the prejudice requirement.

2. Ex Parte Communications Between Prosecution and Probation Officer

Caribe also argues that the prosecution violated Fed. R. Crim.

P. 32(b)(6)(B) by having ex parte communications with the probation

officer who wrote the presentence report. Caribe apparently wants

this court to eliminate the two enhancements added to his offense

level and remand the case to the district judge for re-sentencing.

Rule 32(b)(6)(B) provides:

Within 14 days after receiving the presentence report, the parties shall communicate in writing to the probation officer, and to each other, any objections to any material information, sentencing classifications, sentencing guideline ranges, and policy statements contained in or omitted from the presentence report. After receiving objections, the probation officer may meet with the defendant, the defendant's counsel, and the attorney for the Government to discuss those objections. The probation officer may also conduct a further investigation and revise the presentence report as appropriate.

The probation officer issued her initial presentence report to both

parties on February 3, 2000. This report did not recommend an

enhancement for Caribe's leadership role in the conspiracy or

possession of a gun during the conspiracy. Caribe alleges that

Agent Plichta then met with the probation officer and reviewed the

evidence about Caribe's role in the conspiracy. The probation

officer then amended her report to recommend a four-level

enhancement for a leadership role and a two-level enhancement for

firearm possession. Caribe's counsel was not given a chance to

-97- rebut Agent Plichta's statements before the amended report was

released, although he was able to file formal objections pursuant

to Rule 32 and to raise his objections directly to the district

court during the sentencing hearing. Caribe filed a motion

objecting to the ex parte communications and demanding disclosure

of all documents that the probation officer used in preparing the

presentence report. The defendant also asked to be able to call

the probation officer as a witness at the sentencing hearing to

examine the extent of the communications.

In a published opinion, United States v. Caribe Garcia, 125 F.

Supp. 2d 19 (D.P.R. 2000), the district judge denied the motion.

The court held that there was no prosecutorial misconduct because

"disclosing information to the probation officer [is] the

functional equivalent of disclosing information to the court

itself." Id. at 21. The court also stated that Caribe failed to

show that he was entitled to a downward departure given that the

presentence report only recommends a sentence and the final

sentencing determination is made "after the Court hears arguments

and objections to the presentence report in open court." Id. We

agree with the second basis for the court's opinion but not the

first.

The first issue is difficult because of the discrepancy

between the fairly formal procedure contemplated by Rule 32 and the

more informal reality. It is common for one side to speak with the

-98- probation officer, either before or after the report is released.

One district court has stated that, in that court's experience, ex

parte communications between the government and the probation

officer preparing the report are "appropriate and regular."

Roccisano v. United States, 936 F. Supp. 96, 103 (S.D.N.Y. 1996).

But we could not fully embrace such informality without reading

Rule 32(b) out of the Federal Rules; Rule 32(b) does require a more

structured process, at least in the fourteen-day period following

the release of the presentence report.

Rule 32(b) is literally read as permitting ex parte

communications initiated by either party both before and after this

fourteen-day period. During the fourteen-day period, however,

while the parties are preparing their written objections to the

presentence report, the parties, under the rule, should communicate

with the probation officer only in writing, and all communications

must be disclosed to the other party. This reading of the rule

permits most of the present informality, while allowing both sides

to know the scope of the objections. See Fed. R. Crim. P.

32(b)(6)(B) advisory committee notes to 1994 Amendments (the

parties should have a "fair opportunity . . . to review, object to,

and comment upon, the probation officer's report in advance of the

sentencing hearing"). There are benefits to informality, but the

parties should at least know what issues are on the table

concerning the presentence report so they can present counter-

-99- arguments if they desire.

Even if contact with Agent Plichta did inadvertently violate

Rule 32, Caribe has failed to show that he has suffered any harm as

a result. First, he does not explain what he hoped to accomplish

by additional discovery or by calling the probation officer to

testify at the sentencing hearing. The revised presentence report

apparently sets forth the additional evidence the probation officer

relied upon in amending her recommendations, and all other facts

appear to be undisputed. Second, as the district court noted, the

report is only a recommendation to the court; the court is not

bound to accept these recommendations. The district court in this

case had notice that the second report was prepared after the

prosecution's alleged ex parte contact and gave Caribe's counsel

ample opportunity at sentencing to dispute the report's

recommendations. The court then found that the enhancements were

appropriate and sentenced the defendant accordingly. Thus Caribe

fails to show what harm he suffered as a result of the ex parte

communications. See, e.g., Montoya, 62 F.3d at 3 (1st Cir. 1995)

("[T]he sentencing court has ample power to deal with

[prosecutorial misconduct impacting the judge's sentencing options]

by excluding the tainted transaction from the computation of

relevant conduct or by departing from the [recommendation].").

-100- M. Conclusion

We affirm the judgments and the sentences and reject each of

the defendant's claims, except that we remand, in accordance with

this opinion, the issue of the term of supervised release for

Rodriguez and vacate that aspect only of his sentence. So ordered.

-101-