U.S. v. Camilo

• Court: U.S. Court of Appeals — First Circuit
• Writing for the Court: Before TORRUELLA, Chief Judge, and CYR and LYNCH; TORRUELLA
• Citation: U.S. v. Camilo, 71 F.3d 984 (1st Cir. 1995)
• Decision Date: 04 October 1995
• Docket Number: No. 95-1565,95-1565
• Parties: UNITED STATES, Appellee, v. Blas CAMILO, Defendant-Appellant. . Heard

Page 984

71 F.3d 984

UNITED STATES, Appellee, v. Blas CAMILO, Defendant-Appellant.

No. 95-1565.

United States Court of Appeals First Circuit.

Heard Oct. 4, 1995.

Decided Dec. 18, 1995.

Michael J. Iacopino, Manchester, N.H., with whom Timothy I. Robinson, Concord, N.H., and Brennan, Caron, Lenehan & Iacopino, Manchester, N.H., were on brief for appellant.

Jean B. Weld, Assistant United States Attorney, with whom Paul M. Gagnon, United States Attorney, was on brief for appellee.

Before TORRUELLA, Chief Judge, and CYR and LYNCH, Circuit Judges.

TORRUELLA, Chief Judge.

Defendant-appellant Blas Camilo ("Camilo") appeals his sentence of 96 months given at his resentencing hearing of May 2, 1995. In United States v. Camilo, 30 F.3d 126 (1st Cir.1994), this court affirmed his convictions for violations of 21 U.S.C. Sec. 841(a) and Sec. 846 pursuant to a final judgment entered on January 3, 1994 by the district court, and remanded for the resentencing that is the origin of this appeal. For the reasons set forth below, we affirm.

BACKGROUND

The facts, which are derived from the presentence investigation reports as well as the oral and documentary evidence introduced at the sentencing and resentencing hearings, are as follows.

Camilo was indicted with two co-defendants on July 2, 1993. He was charged in count one with conspiracy to distribute cocaine base (or "crack") in violation of 21 U.S.C. Sec. 846, and in counts two and three with distributing cocaine base on April 22, 1993 and May 12, 1993, in violation of 21 U.S.C. Sec. 841(a)(1). ¹ On October 4, 1993, Camilo pled guilty to count three pursuant to a written plea agreement, and counts one and two were dismissed. For count three, Camilo was sentenced on January 3, 1994 to ten years of imprisonment and five years of supervised release. Camilo appealed this sentence, and on August 8, 1994, the Court remanded this case for resentencing pursuant to the agreement of both parties at oral argument, based primarily on a change in the sentencing recommendation policy of the United States Probation Office pertaining to Sec. 841(b) penalties. See 21 U.S.C. Sec. 841(b) (specifying penalties for 21 U.S.C. Sec. 841(a) violations). In the wake of United States v. Darmand, 3 F.3d 1578, 1581 (2d Cir.1993), the Probation Office accordingly recommended that the mandatory minimum sentences under 21 U.S.C. Sec. 841(b)(1) be based only on the drug quantities involved in the offenses of conviction.

At Camilo's resentencing hearing on May 2, 1995, the district court assessed Camilo with two additional criminal history points because, at the time that he committed the instant offense, he had an outstanding Massachusetts warrant for a probation violation. Camilo challenges this decision as error. Additionally, Camilo argues that because cocaine powder and crack are scientifically identical, the United States Sentencing Guidelines' ("the Guidelines' ") distinction between the two forms of cocaine produces statutory ambiguity. Therefore, argues Camilo, under the rule of lenity, ² he should receive the lighter penalty for cocaine powder rather than the heavier penalty for crack, the substance which he was in fact convicted of distributing.

DISCUSSION

A. The Criminal History Computation

We review a district court's legal interpretation of the Guidelines de novo, United States v. Fontana, 50 F.3d 86, 87 (1st Cir.1995); United States v. Ovalle-Marquez, 36 F.3d 212, 221 (1st Cir.1994), cert. denied, --- U.S. ----, 115 S.Ct. 1322, 131 L.Ed.2d 202 (1995), and its fact-bound determinations of defendant's actions with respect to the offense for clear error. Fontana, 50 F.3d at 87; Ovalle-Marquez, 36 F.3d at 225. Furthermore, the government carries the burden of showing the facts necessary to justify additional criminal history points. United States v. Roberts, 39 F.3d 10, 13 (1st Cir.1994).

The Guidelines specify that, in determining the Criminal History Category, the sentencing court shall add two points to a defendant's criminal history category "if the defendant committed the instant offense while under any criminal justice sentence, including probation." United States Sentencing Commission, Guidelines Manual, Sec. 4A1.1(d) (1994). Section 4A1.2(m) defines the effect under Sec. 4A1.1(d) of an outstanding warrant for a probation violation as follows:

For the purposes of Sec. 4A1.1(d), a defendant who commits the instant offense while a violation warrant from a prior sentence is outstanding (e.g., a probation, parole, or supervised release violation warrant) shall be deemed to be under a criminal justice sentence for the purposes of this provision if that sentence is otherwise countable, even if that sentence would have expired absent such a warrant.

Sec. 4A1.2(m) (emphasis added); see also Sec. 4A1.1(d), comment. (n. 4) (explaining the effect of a violation warrant "[f]or the purposes of [Sec. 4A1.1(d) ]" in language almost identical to the above block quote).

We conclude, and Camilo does not dispute, that the sentence of two years' probation which the evidence shows was imposed on him on June 28, 1989 was "otherwise countable" under Sec. 4A1.1(d). ³ Section 4A1.1(d) specifically includes "probation" as a "criminal justice sentence" triggering the additional two points. Furthermore, Sec. 4A1.2(m) clearly indicates that, for Sec. 4A1.1(d) purposes, an outstanding violation warrant is to be considered the equivalent of the criminal justice sentence under which it issued, even if that sentence would otherwise have expired absent such warrant.

Given the clarity of the relevant Guidelines, the issue would seem to hinge simply on whether an outstanding warrant existed, and the evidence supports the district court's finding that it did. Sufficient evidence supports the district court's conclusion that the outstanding warrant in question was issued on May 2, 1991, almost two months before Camilo's probation would have expired. However, Camilo argues that the required inquiry is not so simple. First, citing precedents from other circuits, he contends that the government must show that, under the law of the prior sentence's origin (here, Massachusetts), the warrant is not stale and the issuing court retains jurisdiction to revoke the defendant's probation. See United States v. Lee, 941 F.2d 571, 572-73 (7th Cir.1991) (discussing Missouri law); United States v. Baty, 931 F.2d 8, 10-11 (5th Cir.1991) (discussing Texas law). Second, Camilo asserts that, under Massachusetts law, the outstanding warrant was invalid for the purpose of additional criminal history points, because the government failed to present evidence that it made reasonable attempts to execute the warrant.

We reject Camilo's proposition, which he contends to be the law in the Fifth and Seventh Circuits, that the Guidelines' otherwise unambiguous direction is necessarily qualified by an additional showing under state law. We decline to follow the cited cases because both cases were decided before the effective date of Amendment 381 to the Guidelines, November 1, 1991, which added both Sec. 4A1.2(m), discussed above, and Sec. 4A1.1, comment. (n. 4). ⁴ See USSG App. C, pp. 261-62, 264 (Nov. 1994); Lee, 941 F.2d at 571 (decided August 26, 1991); Baty, 931 F.2d at 8 (decided April 26, 1991). Not surprisingly, neither case mentions either Sec. 4A1.2(m) or Sec. 4A1.1, comment. (n. 4), which were to become effective on November 1 of 1991, the year in which both cases were decided. Lee, 941 F.2d at 571; Baty, 931 F.2d at 8.

Instead, we follow the reasoning of a case not cited by either party, United States v. Renfrew, 957 F.2d 525 (8th Cir.1992). In that case, the Eighth Circuit stated that whether a defendant was under a criminal justice offense was ultimately a matter of federal law:

Although we agree that state law is relevant to the question before us, our ultimate task is to determine whether [the defendant] was 'under' a criminal justice sentence for purposes of Sec. 4A1.1(d). That is a question of federal law.

Id. at 526-27 (affirming the addition of two points to defendant's criminal history category based on either or both Minnesota law and Sec. 4A1.1(d), comment. (n. 4)). In Renfrew, the Eighth Circuit determined that regardless of whether it focused on Minnesota state law or on a Sentencing Commission "postsentence clarifying amendment," see Sec. 4A1.1(d), comment. (n. 4), the defendant was under a criminal justice sentence for the purposes of Sec. 4A1.1(d). ⁵

Unlike the defendant in Renfrew, however, Camilo's sentencing date, as well as his offending conduct, was subsequent to November 1, 1991, the effective date of both Secs. 4A1.1(d), comment. (n. 4) and 4A1.2(m). As we have previously noted, the language of Sec. 4A1.2(m) that is relevant to our analysis almost perfectly replicates that of Sec. 4A1.1(d), comment. (n. 4), which was relied upon by the court in Renfrew. Unlike the court in Renfrew, we face no ex post facto problem in following Sec. 4A1.2(m) rather than the Sec. 4A1.1(d), comment. (n. 4). ⁶ See 18 U.S.C. Sec. 3553(a)(4) (courts should consider the kinds of sentence and sentencing range specified by the Guidelines "that are in effect on the date the defendant is sentenced"); U.S.S.G. Sec. 1B1.11(a) (courts are to use "the Guidelines Manual in effect on the date that the defendant is sentenced"). Most importantly, Sec. 4A1.2(m) is not an application note but a Guideline definition; as such it is not merely persuasive, but is in fact binding authority for our interpretation of Sec. 4A1.1(d).

Given that the plain language of Sec. 4A1.2(m) is mandatory for our purposes, and that both federal and state law analyses lead us to the same conclusions, we therefore need not determine here which analysis--federal or state--is indeed required. Thus, as the court in Renfrew did before us, we follow both lines of analysis without determining whether the state law inquiry is mandatory.

We turn first to federal...