United States v. Van

• Court: Court of Appeals for the First Circuit
• Decided: June 18, 1996
• Docket: 95-1919
• Status: Published

Opinion

USCA1 Opinion

UNITED STATES COURT OF APPEALS
                            UNITED STATES COURT OF APPEALS

                                FOR THE FIRST CIRCUIT
                                FOR THE FIRST CIRCUIT



                                 ____________________


No. 95-1919



                                    UNITED STATES,



                                      Appellee,



                                          v.



                                 ANH VAN, A/K/A ANDY,



                                Defendant, Appellant.


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                     APPEAL 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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                            Bownes, Senior Circuit Judge,
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                              and Stahl, Circuit Judge.
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                                 ____________________



               Edward P. Ryan, Jr., with whom O'Connor & Ryan, P.C. was on
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          brief for appellant.

               Michael J. Pelgro, Assistant United States Attorney,
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          Organized Crime Drug Enforcement Task Force, with whom Donald K.
                                                                 _________

          Stern, United States Attorney, was on brief for appellee.
          _____


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                                    June 18, 1996

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Per Curiam.  Anh Van pled guilty to conspiracy to
                      Per Curiam.
                      __________



            deal unlawfully in firearms, 18 U.S.C.   371, unlawful



            dealing in firearms, id.    922(a)(1), and six counts
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            relating to his unlawful possession of firearms, id.   
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            922(g)(1), 922(k); 26 U.S.C.   5861(d).  He appeals to



            challenge a four-level increase imposed under the sentencing



            guidelines on the ground that he was an organizer or leader



            of a criminal activity that involved five or more criminally



            responsible participants or was otherwise extensive. 



            U.S.S.G.   3B1.1(a).  Out of an abundance of caution, we are



            retaining jurisdiction over the case and remanding for



            findings to clarify the district court's basis for its



            decision.



                      Under the guideline, the defendant, in order to



            qualify for the four-level adjustment, must have been an



            organizer or leader of a criminal activity, and the criminal
                                                        ___



            activity must have involved five or more participants



            (including the defendant) or have been "otherwise extensive." 
                                      __



            U.S.S.G.   3B1.1(a).  Because the principal dispute in this



            case concerns the scope rather than the status determination,



            we limit ourselves to the facts pertaining to the scope of



            the criminal activity.



                      Briefly summarized, the undisputed facts in the



            presentence report stated that Van sold six firearms to a



            federal undercover agent over a period of a year.  Prior to


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each sale, the agent contacted Van and asked to buy a



            firearm.  Van made the delivery and collected the money for



            one of the transactions, but sent others to complete the



            other five.  The agent covertly recorded at least some of the



            transactions.  The presentence report initially concluded



            that five or more participants were involved in the



            transactions.  Van did not dispute that a total of eight



            individuals (in addition to himself) were at least present



            for one or more of the transactions. 



                      Van did dispute whether some of these individuals



            were shown to be criminally responsible participants; the



            guideline provides that in order to impose the four-level



            increase on the ground that the activity involved five or



            more participants, four individuals other than the defendant



            must be found to be criminally responsible.  U.S.S.G.  



            3B1.1, comment. (n.1).  The probation officer responded with



            an addendum suggesting that the presence of the eight other



            individuals would show the activity to have been otherwise



            extensive, even if the criminal culpability of any four



            individuals could not be proven.



                      The district judge, after a sentencing hearing,



            imposed the four-level increase and checked the box on the



            judgment form indicating that he was adopting the findings of



            the presentence report.  But the court did not make explicit



            findings of its own, beyond the following statement at the


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hearing:



                      [T]he defendant, Anh Van, was an

                      organizer or leader of a criminal

                      activity that involved five or more

                      participants or was otherwise extensive,

                      and . . . therefore, a four-level

                      increase is warranted. . . .



                      The law governing the district court's obligation



            and our own on review is well-settled and easily stated.  At



            the time of sentencing, the court "shall state in open court



            the reasons for its imposition of the particular sentence." 



            18 U.S.C.   3553(c).  This requires the court to make



            "reasonably specific findings" and to "explain, generally,



            how it computed the applicable guideline range."  United
                                                              ______



            States v. McDowell, 918 F.2d 1004, 1012 (1st Cir. 1990).  We
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            have found minimal compliance with section 3553(c) when we



            could determine that the court relied on the presentence



            report, and the presentence report provided a sufficient



            basis for meaningful appellate review.  See United States v.
                                                    ___ _____________



            Cruz, 981 F.2d 613, 617-18 (1st Cir. 1992); United States v.
            ____                                        _____________



            Schultz, 970 F.2d 960, 963 n.7 (1st Cir. 1992), cert. denied,
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            113 S. Ct. 1020 (1993); cf. United States v. Catano, 65 F.3d
                                    __  _____________    ______



            219, 230 (1st Cir. 1995); McDowell, 918 F.2d at 1011-12.  The
                                      ________



            government bears the burden of proving the facts material to



            the application of the guidelines by a preponderance of the



            evidence, and the requirements of Fed. R. Crim. P. 32,



            dealing solely with fact findings, are somewhat more



            demanding than the general directive of section 3553(c). 


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United States v. Osorio, 929 F.2d 753, 764 n.5 (1st Cir.
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            1991).  Fed. R. Crim. P. 32 allows the court to adopt the



            facts set forth in the presentence report "[e]xcept for any



            unresolved objection" noted in the addendum submitted by the



            probation officer as required by the rule.  Fed. R. Crim. P.



            32(b)(6)(C), (D).  The court must resolve any outstanding



            disputed facts or determine that they will not be taken into



            account, and must append a written record of its findings and



            determinations to the presentence report.  Fed. R. Crim. P.



            32(c)(1).  Although explicit resolution of disputed material



            facts is preferable, we have found that the court implicitly



            resolved the facts when the court's statements and the



            sentence imposed showed that the facts were decided in a



            particular way.  See, e.g., Cruz, 981 F.2d at 618-19; United
                             ___  ____  ____                      ______



            States v. Wells Metal Finishing, Inc., 922 F.2d 54, 58 (1st
            ______    ___________________________



            Cir. 1991); cf., e.g., United States v. Geer, 923 F.2d 892,
                        __   ____  _____________    ____



            898 (1st Cir. 1991); United States v. Levy, 897 F.2d 596, 599
                                 _____________    ____



            (1st Cir. 1990).  In the absence of legal error, the district



            court's ruling will be sustained so long as the information



            upon which it relied is sufficient to support the findings



            under a clearly erroneous standard.  United States v.
                                                 _____________



            Morillo, 8 F.3d 864, 872-73 (1st Cir. 1993).  Of course, we
            _______



            have to be able to determine what the district court found



            and the basis for the findings to the extent necessary to



            permit effective appellate review.  McDowell, 918 F.2d at
                                                ________


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1012.



                      In this instance, what may have been a slip of the



            tongue by the district court has complicated matters.  If the



            district court had held squarely that the activity involved



            four criminally responsible participants plus the defendant,



            the court's findings would be adequate for us to conclude



            that it implicitly resolved the material disputed facts.  As



            to three of the other participants, Van does not dispute that



            they were criminally responsible.  Two pled guilty to



            firearms charges and a third (who was indicted but fled the



            jurisdiction) was involved in transporting and handing over a



            weapon to the government agent during a transaction arranged



            by Van.  The principal remaining factual dispute concerns the



            criminal culpability of a man referred to in the presentence



            report as "Michael."



                      The presentence report stated that Michael was



            present in a car with Hieu Minh Nguyen, whose criminal



            responsibility Van does not dispute, during a sale of heroin



            and a gun to the government agent.  The agent purchased a



            gram of heroin, then asked about the gun.  Nguyen said



            something to Michael in Vietnamese; Michael then retrieved a



            paper bag which contained a semiautomatic pistol, and the



            agent purchased the weapon.  The agent said he would be



            interested in purchasing more guns, and according to the



            probation officer, Michael responded that he would contact


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the agent as soon as he had more guns to sell. 



                      In his objections to the presentence report, Van



            contended that transcripts of the tape of the conversation



            showed that it was Nguyen, not Michael, who discussed the



            procurement of more guns.  But Van does not dispute that



            Michael retrieved the paper bag containing the gun and was



            present during the transaction.  There is no finding by the



            district court as to who made the statement, but it is not



            clear that it matters because the district court could



            rationally have found that Michael was more likely than not



            criminally responsible even if he merely retrieved the



            weapon.  Of course, in the abstract, it is possible that



            Michael was an unknowing dupe who understood nothing of the



            transaction and thought he was handing over a box of candy. 



            But the surrounding circumstances make this unlikely, and the



            district court was certainly entitled to draw the inference



            that Michael knowingly participated.  Cf. United States v.
                                                  ___ _____________



            Kirvan, 997 F.2d 963, 966-67 (1st Cir. 1993).
            ______



                      The difficulty here is that there is no clear



            finding by the district judge that he found five criminally



            responsible participants.  Although the judge checked the box



            indicating he was adopting the presentence report's findings,



            the cross-reference remains ambiguous because the addendum



            does not explicitly state which ground the probation officer



            adopted, saying alternatively that there were "at least nine


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participants," but that even if there were not at least five



            criminally responsible participants, the total of nine



            persons involved would support an extensiveness finding.  The



            district court added (or did not dispel) uncertainty by



            phrasing its own finding in the disjunctive.  While there



            might be reason to guess that the court meant to find there



            were five criminally responsible participants, there is no



            unequivocal finding.



                      The problem is exacerbated to the extent that the



            court may have relied upon the alternative ground that Van's



            criminal activity was "otherwise extensive."  Again, given



            the disjunctive, we are not even sure the district court made



            the "otherwise extensive" finding, and the only circumstance



            articulated in the presentence report as supporting such a



            finding was that a total of nine individuals, whether



            criminally responsible or not, were present during the six



            transactions.  An "otherwise extensive" finding, however,



            must be warranted by "the totality of the circumstances,



            including not only the number of participants but also the



            width, breadth, scope, complexity, and duration of the



            scheme."  United States v. Dietz, 950 F.2d 50, 53 (1st Cir.
                      _____________    _____



            1991); see also United States v. Graciani, 61 F.3d 70, 76 n.7
                   ___ ____ _____________    ________



            (1st Cir. 1995).



                      All this might not matter if the undisputed facts



            required a finding either that Michael was a criminally
            ________


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responsible participant or that the activity was otherwise



            extensive.  But even the government does not argue this in so



            many words.  And such findings would require factual



            inferences and characterizations as to which the district



            court has considerable latitude.  Graciani, 61 F.3d at 75. 
                                              ________



            Thus, we are hesitant to find that the district court was



            compelled to impose the four-level increase and that the



            omission of findings is harmless.



                      Accordingly, we think the best solution, and one we



            have used in previous cases, e.g., Geer, 923 F.2d at 898, is
                                         ____  ____



            to ask the district court to specify which of the two grounds



            (five or more participants, otherwise extensive, or both) it



            relied upon and to make brief findings, either by



            incorporating pertinent portions of the presentence report or



            otherwise, as to each ground relied upon.  Cf. Fed. R. Crim.
                                                       ___



            P. 32(c)(1).  The district court is requested to advise us of



            its findings by supplemental order within 45 days.  When we



            receive the findings, we will determine whether any further



            briefing or proceeding is required.



                      Determinations in connection with sentencing are an



            odd hybrid in the law.  Based on a tradition of discretionary



            sentencing, the burden of proof and other procedural



            safeguards are rather relaxed in this realm.  See Nichols v.
                                                          ___ _______



            United States, 114 S. Ct. 1921, 1928 (1994); United States v.
            _____________                                _____________



            Tucker, 404 U.S. 443, 446 (1972).  On the other hand, the
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mandatory character of the guidelines (subject to departures)



            and the significant sentences they entail make guideline



            determinations considerably important to defendants, as



            reflected in the requirements of 18 U.S.C.   3553(c) and Fed.



            R. Crim. P. 32.  Our judgment as to whether an error or



            ambiguity is harmless has to take account of both of these



            somewhat divergent attitudes toward sentencing.



                      In this instance, we think that the ambiguity in



            the findings is patent (even though it may rest on a slip of



            the tongue) and is not unequivocally harmless.  Given the



            stakes for the defendant and the simplicity of obtaining a



            clarification, we think the limited remand order is



            appropriate.  If the district court concludes on



            reexamination that the four-level increase should not be



            applied, it can so state in its supplemental findings and we



            will remand the case for resentencing.  This court therefore



            retains jurisdiction but remands for supplemental findings.
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                      It is so ordered.
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