U.S. v. Cintron-Fernandez

Decision Date03 February 2004
Docket NumberNo. 03-1104.,03-1104.
Citation356 F.3d 340
PartiesUNITED STATES, Appellant, v. Jorge CINTRÓN-FERNÁNDEZ, a/k/a Jorge Cintrón, Jr., Defendant, Appellee.
CourtU.S. Court of Appeals — First Circuit

Appeal from the United States District Court for the District of Puerto Rico, Perez-Gimenez, J Ara B. Gershengorn, United States Department of Justice, with whom H.S. Garcia, United States Attorney, Robert D. McCallum, Assistant Attorney General, Kathleen A. Kane and Michael S. Raab, Civil Division, United States Department of Justice, were on brief for appellant.

Luis F. Camacho for appellee.

Before HOWARD, Circuit Judge, CAMPBELL and STAHL, Senior Circuit Judges.

CAMPBELL, Senior Circuit Judge.

Defendant-Appellee, Jorge Cintron-Fernandez, was convicted in the United States District Court for the District of Puerto Rico on his plea of guilty to charges relating to the adulteration and misbranding of frozen food products. After determining the amount of consumer loss, the court ruled that Cintron-Fernandez had a total offense level of 12 and a criminal history category of I, which would require a minimum sentence of ten months imprisonment under the Sentencing Guidelines. U.S.S.G. § 5A (Table). The district court sentenced Cintron-Fernandez to five months imprisonment but substituted home confinement in lieu of incarceration for that term. The court also imposed three years of supervised release, five months of which were to be served in accordance with the Home Confinement Program. The government appeals, arguing that the district court imposed an illegal sentence. We vacate the sentence and remand for resentencing.

I. BACKGROUND

"Because this appeal involves sentencing issues following a guilty plea, we take the background facts from the presentence report." United States v. Brady, 168 F.3d 574, 576 (1st Cir.1999).

From August of 1991 until at least December of 1997, Jocel Manufacturing Corporation ("Jocel") manufactured and sold frozen desserts, including ones labeled "Caparra Ice Cream" and "Rico," to restaurants and wholesale and retail customers in Puerto Rico. During most of that period, Cintron-Fernandez's father, Jorge Cintron-Renta, was the overall manager of Jocel, and Cintron-Fernandez was Jocel's production manager with responsibility for the production of food products.

In 1991 and 1992, the United States Food and Drug Administration ("the FDA") warned Cintron-Renta and Cintron-Fernandez of the requirement that food labeled as "ice cream" contain not less than ten percent milk fat. 21 C.F.R. § 135.110(a)(2). Notwithstanding this warning, Cintron-Renta and Cintron-Fernandez continued to produce and sell Caparra ice cream with less than ten percent milk fat, and they misled the FDA about the true content and labeling of the product. Thus, while Cintron-Renta promised the FDA that Jocel would revise its formula so that its ice cream would contain at least ten percent milk fat, he and Cintron-Fernandez instructed Jocel's employees to use a mixture of coconut oil and milk fat for the "Caparra Ice Cream" base that contained less than ten percent milk fat. They packed this product into containers with labels that failed to list coconut oil as an ingredient. Ultimately, Jocel sold "Caparra Ice Cream" to the public without notifying customers that it contained less than ten percent milk fat or that it contained coconut oil. This conduct occurred over a period of at least 21 months and is estimated to have resulted in a loss to consumers of at least $107,706.40.

On April 5, 2000, a federal grand jury indicted Cintron-Fernandez, Cintron-Renta, and Jocel Manufacturing Corporation, for conspiracy, adulteration of food, misbranding of food, and false, fictitious, and fraudulent claims against the United States. After discovery, Cintron-Fernandez entered into a plea agreement with the United States in which he agreed to plead guilty to Counts One and Six of the indictment and to adopt the government's version of the facts. Count One charged that he had unlawfully, knowingly, wilfully, and intentionally combined and confederated with others to cause, with the intent to defraud or mislead, food labeled as "ice cream" to be adulterated and misbranded while the food was held for sale, in violation of 21 U.S.C. § 331(k), and that he had knowingly executed a scheme to defraud and obtain money by means of materially false and fraudulent representations and promises through the United States Postal Service, in violation of 18 U.S.C. § 1341, and all in violation of 18 U.S.C. § 371. Count Six charged that he had, with the intent to defraud and mislead, misbranded "ice cream" while held for sale in interstate commerce, in violation of 21 U.S.C. §§ 331(k) and 333(a)(2).

In accordance with the agreement, Cintron-Fernandez entered a guilty plea. A presentence report was prepared and given to the parties, which calculated consumer loss to be $107,706.40. Cintron-Fernandez filed an objection to the amount of consumer loss. The district court referred the issue to Magistrate Judge Gustavo A. Gelphi, who, after an evidentiary hearing concluded that $107,706.40 was an appropriate figure.

On November 13, 2002, the district court held a sentencing hearing. As Cintron-Fernandez had violated two closely related counts, the district court grouped the two counts into a combined offense level. Applying the 1997 Sentencing Guidelines,1 the court determined that the Count One offenses were governed by § 2X1.1, which applies to conspiracies not covered by a specific offense Guideline. Rather than providing its own offense level, § 2X1.1(a) states that courts should apply the base offense level from the Guideline for the substantive offense. Accordingly, the district court determined that both substantive offenses in Count One were governed by § 2F1.1.2 The district court further determined that the Count Two sentences were also governed by § 2F1.1.3

Based on § 2F1.1, the district court concluded that the base offense level was six. Since § 2F1.1 provides for increases in the offense level according to the amount of loss resulting from a crime if those losses are above $2,000, the district court, using the consumer loss figure of $107,706.40, increased Cintron-Fernandez's total offense level six levels. U.S.S.G. § 2F1.1b(1). Accordingly, it assessed Cintron-Fernandez's total guideline sentence at twelve.4 The district court further determined that Cintron-Fernandez had a criminal history category of I.

Applying this offense level and criminal history to the sentencing table, the district court then determined that the applicable guideline imprisonment range was from ten to sixteen months (Zone C) with a fine range of $3,000 to $30,000 plus a term of supervised release of at least two but not more than three years. U.S.S.G. § 5A (Table). The district court imposed a fine of $3,000 for each of the two counts and stated that appellee was to be:

committed to the custody of the Bureau of Prisons to be imprisoned for a term of five months and pursuant to guideline [5C1.1(d)(2)] the Court will substitute one day of home confinement for one day of incarceration and said term of imprisonment is to be served concurrently as to counts one and six. In other words, the Court, although it imposes a term of imprisonment of five months, which is at the lower end of the guideline range of ten, pursuant to guideline [5C1.1(e)(3)] substitutes one day of home detention for one day of imprisonment. Upon completion of said term of five months he shall be placed on supervisory release for a term of three years as to each count to be served concurrently under the following conditions ... He shall be placed in home detention and comply with the conditions of the home confinement program for a period of five months.

When asked for clarification of the sentence by the government's counsel, the district court explained:

And that is a type of sentence that I impose when I am in Zone C at 12. You are correct ... [5C1.1(d)(2)] provides that if the Court must sentence the defendants to imprisonment provided that at least one half of the minimum term is satisfied by imprisonment. I have imposed a term of imprisonment of five months as to each count concurrently then I move on to [5C1.1(e)(3)] which states that, that is the schedule of substitute punishment and I have substituted one day of home detention for one day of imprisonment so although he has been sentenced to a term of imprisonment as to each count, five months, it is half of the minimum of the guideline, nevertheless the Court substitutes one day of home confinement for one day of imprisonment.

The government objected, without avail, that the substitution provision of § 5C1.1(e) could not be used to override the Guidelines' minimum sentence requirements.

On November 20, 2002, the district court entered the announced sentence. The government filed a timely notice of appeal. Several months later, on April 13, 2003, under the jurisdiction of the Probation Office of the United States District Court for the District of Puerto Rico, Cintron-Fernandez began serving the five months of home detention associated with his three-year term of supervised release, wearing an electronic monitoring device as required. On September 11, 2003, his home detention ended, the electronic monitoring device was removed, and Cintron-Fernandez proceeded with the balance of his three-year term of supervised release.

II. ANALYSIS
A. Jurisdiction

On appeal, the government argues that the district court, in imposing a total of ten months of home confinement in lieu of incarceration, failed to comply with the requirements of § 5C1.1 of the Sentencing Guidelines, which requires that at least one-half of the minimum term of imprisonment, here ten months, be satisfied by imprisonment rather than by home detention.5

Cintron-Fernandez argues that we lack jurisdiction to consider the government's...

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