U.S. v. Fontana

• Court: U.S. Court of Appeals — First Circuit
• Writing for the Court: Before TORRUELLA, Chief Judge, ALDRICH, Senior Circuit Judge, and CYR; BAILEY ALDRICH
• Citation: U.S. v. Fontana, 50 F.3d 86 (1st Cir. 1995)
• Decision Date: 06 February 1995
• Docket Number: No. 94-1989,94-1989
• Parties: UNITED STATES of America, Appellee, v. N. John FONTANA, II, Defendant, Appellant. . Heard

Page 86

50 F.3d 86

UNITED STATES of America, Appellee, v. N. John FONTANA, II, Defendant, Appellant.

No. 94-1989.

United States Court of Appeals First Circuit.

Heard Feb. 6, 1995.

Decided March 28, 1995.

James L. Sultan with whom Rankin and Sultan, Boston, MA, was on brief, for appellant.

Jean L. Ryan, Asst. U.S. Atty., with whom Paul M. Gagnon, U.S. Atty., Concord, NH, was on brief, for appellee.

Before TORRUELLA, Chief Judge, ALDRICH, Senior Circuit Judge, and CYR, Circuit Judge.

BAILEY ALDRICH, Senior Circuit Judge.

Appellant, N. John Fontana, is one of a number of persons charged under 18 U.S.C. Secs. 471, 473 and 474 with the manufacture, possession and delivery of counterfeit United States currency. Fontana waived indictment and pled guilty pursuant to a plea agreement. He appeals from his sentence.

Following execution of the plea agreement, Fontana cooperated fully with federal authorities. At sentencing, the government did not object to his requesting a three-level downward adjustment for prompt acceptance of responsibility, and it filed a motion for a four-level downward departure for his substantial assistance in further uncovering the scheme, pursuant to United States Sentencing Guidelines ("U.S.S.G.") Sec. 5K1.1. The court granted these motions, and they are not before us. However, the government recommended a three-level enhancement for a managerial or supervisory role under U.S.S.G. Sec. 3B1.1(b), and the court, in sentencing defendant, agreed. Fontana timely challenges the enhancement as a violation of U.S.S.G. Sec. 1B1.8, that he alleges protects him from the use of information he provided pursuant to his plea agreement.

We review a district court's legal interpretation of the sentencing guidelines de novo, United States v. Ovalle-Marquez, 36 F.3d 212, 221 (1st Cir.1994), and its fact-bound determinations of defendant's role in the offense for clear error. Id. at 225; United States v. Jadusingh, 12 F.3d 1162, 1169 (1st Cir.1994).

The sentencing guidelines mandate a three level upward adjustment if the government demonstrates that (1) the defendant was a supervisor or manager, and (2) the criminal scheme involved five or more persons, or was otherwise extensive. Ovalle-Marquez, 36 F.3d at 225. See U.S.S.G. Sec. 3B1.1(b). Neither "supervisor" nor "manager" is defined under Sec. 3B1.1, but it is sufficient that a defendant recruited, instructed or supervised at least one other person. United States v. Rodriguez Alvarado, 985 F.2d 15, 20 (1st Cir.1993). The court's so finding here was clearly warranted. Fontana does not dispute that he recruited and directly supervised a Mr. Aquire. The issue is whether the participation of Aquire, and Fontana's supervision of him, was properly available to the district court to consider in calculating his sentence.

In his plea agreement, Fontana promised to cooperate in all government investigations and prosecutions of others involved in the counterfeiting operation. In turn, the government made three specific promises:

In exchange for his plea and cooperation, the Government agrees: (1) that it will not object to an appropriate reduction for acceptance of responsibility ...; (2) that it will file a Motion pursuant to U.S.S.G. Sec. 5K1.1 on the defendant's behalf at the time of sentencing if the defendant provides substantial assistance in the investigation and prosecution of others....; (3) that it is not aware of more than 1.5 million dollars in counterfeit U.S. currency in the instant case and that under U.S.S.G. Sec. 1B1.8 if the defendant provides information which leads to the discovery of more, it will not be used against him to determine his adjusted offense level.

Defendant challenges the three-level enhancement on the ground, inter alia, that the court could not find five participants as "counters." Since the court agreed that it could not count Fontana's wife, it must have considered Aquire in order to meet 3B1.1(b)'s requirements. (The government contended that there were five who had not been disclosed, but, on the record, it is mistaken.) The court, accordingly, in order to find five, may have interpreted the plea agreement as not standing in the way because of Fontana's identifications. In any event, without comment, it found five.

We think this interpretation accords with the plain reading of the agreement. Examination shows no promise by the...