U.S. v. Jaca-Nazario

• Citation: 521 F.3d 50
• Decision Date: 27 March 2008
• Docket Number: No. 05-2114.,No. 06-2157.,05-2114.,06-2157.
• Parties: UNITED STATES of America, Appellee, v. Carlos JACA-NAZARIO, Defendant, Appellant. United States of America, Appellee, v. Carlos Jaca-Nazario, Defendant, Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (1st Circuit)

521 F.3d 50

UNITED STATES of America, Appellee, v. Carlos JACA-NAZARIO, Defendant, Appellant.

United States of America, Appellee, v. Carlos Jaca-Nazario, Defendant, Appellant.

No. 05-2114.

No. 06-2157.

United States Court of Appeals, First Circuit.

Heard July 31, 2007.

Decided March 27, 2008.

Maria H. Sandoval, for appellant.

Germán A. Rieckehoff, Assistant United States Attorney, with whom Rosa Emilia Rodríguez-Vélez, United States Attorney, Nelson Pérez-Sosa, Assistant United States Attorney, Chief Appellate Division, Jacqueline D. Novas, Assistant United States Attorney, and Thomas F. Klumper, Assistant United States Attorney, were on brief, for appellee.

Before HOWARD, Circuit Judge, SELYA, Senior Circuit Judge, and DYK,^* Circuit Judge.

HOWARD, Circuit Judge.

Carlos Jaca Nazario ("Jaca") pled guilty to conspiring to transport cocaine in two separate criminal cases. He was sentenced by a different judge for each plea. He makes a variety of claims on appeal, some directed at one sentence, some at the other, and some at both. Because we find that the district court erred in its determination of whether the conduct underlying each case was, in the parlance of the federal sentencing guidelines, "relevant conduct" as to the sentencing of the other, we vacate both sentences and remand for resentencing.

Jaca pled guilty in both proceedings; we therefore recite the facts as contained in the presentence reports (PSRs), sentencing memoranda, and transcripts of the sentencing hearings. See United States v. Marks, 365 F.3d 101, 101 (1st Cir.2004). We reserve discussion of some facts relevant to particular arguments.

Jaca was a taxi driver who had connections among the workers at Marin airport in San Juan, Puerto Rico. He would take bags filled with cocaine and through this network of accomplices ensure that they were put on airplanes bound for the mainland United States. This operation came under scrutiny by two separate investigations at around the same time.

From February to July, 2003, Jaca transported what he believed to be cocaine for a woman named Vanessa. Vanessa was cooperating with authorities; the cocaine was a dummy. Jaca and his crew placed twenty kilos of this sham cocaine on a flight in February, 2003. Federal agents in charge of the investigation contrived to have that shipment "lost," enabling some hardball tactics by Vanessa, about which we will say more later. A "successful" shipment of another twenty kilos followed in March, 2003. In July, Jaca twice handled more "cocaine" for Vanessa; both attempts failed only because an accomplice did not load the sham cocaine on the airplane. For the sake of clarity, we refer to these activities collectively as "the sham cocaine smuggling."

The day after the last attempt to ship cocaine for Vanessa, Jaca and his crew placed thirty kilos of real cocaine on an airplane bound for New York as part of a conspiracy to move a large quantity of cocaine through Puerto Rico to the mainland. Neither Vanessa nor the government were involved. We will refer to this conduct as "the real cocaine smuggling."

An indictment for the real cocaine smuggling issued in September, 2003; it charged some of the other conspirators with moving as much as 153 kilos of cocaine. The indictment for the sham cocaine smuggling issued in March, 2004.

Different district court judges presided over the two cases. Jaca moved to consolidate the cases, but the motion was denied; he was the only defendant common to both. After refusing a plea deal of eleven years for both cases, Jaca eventually made straight guilty pleas. He moved, again unsuccessfully, to consolidate the two sentencing hearings.

Jaca entered a guilty plea for his role in the sham cocaine smuggling three days before trial was to begin. At sentencing, he was found to have participated in the transport of not less than 50 but not more than 150 kilos of cocaine. With acceptance of responsibility and a "safety valve" reduction in offense level, he was sentenced to 121 months, the bottom of the appropriate guideline sentencing range of 121 to 151 months. In issuing this sentence ("the first sentence"), the district court expressly declined to consider the pending charges in the other indictment.

The indictment for the real cocaine smuggling likewise ended in a guilty plea. The district court declined to consider the sham cocaine smuggling as "relevant conduct" in calculating the total quantity of drugs for sentencing purposes. The court, however, did give Jaca the benefit of the "safety valve" reduction, sentencing him ("the second sentence") to eighty-seven months. The court also exercised its discretion to pronounce a partially concurrent sentence. See U.S.S.G. § 5G1.3. In order to credit Jaca for time already served, the second sentence was deemed to have run concurrently with the first sentence from the date of Jaca's incarceration until the date of the second sentencing — around eleven months. The remainder of the second sentence was to run consecutively to the first sentence. The second sentence therefore would start, run for around eleven months concurrently with the first, and then stop for a little more than nine years only to start again when the first sentence was finished.

Jaca contends: (1) that the district court erred by not considering the sham cocaine smuggling to be "relevant conduct" in the second sentence; (2) that because the sham cocaine smuggling was "relevant conduct" in the second sentence, the district court erred in not imposing a fully concurrent sentence as required by U.S.S.G. § 5G1.3(b); (3) that the second sentence constitutes a "suspended sentence" expressly forbidden by 21 U.S.C. § 841(b)(1)(A); (4) that the district court erred in not considering a sentencing entrapment argument, or that, to the extent it did consider the argument, the district court erred in not finding sentencing entrapment; and (5) that the government refused to move for a one-level reduction in bad faith, and therefore the district court should have granted the reduction without the motion.¹ We will examine these in turn.

I. Relevant Conduct

On appeal, Jaca maintains that the sham cocaine smuggling was "relevant conduct" to the second sentence, and therefore the second sentence should run entirely concurrent with the first. This argument necessarily has two parts: first, that the conduct was "relevant" under U.S.S.G. § 1B1.3; and second, that concurrent sentencing was mandated under U.S.S.G. § 5G1.3(b). The first part of this argument has independent force and requires remand for resentencing. We decline to reach the second question, noting only that the second part of this argument may depend on which version of the Guidelines is used for sentencing.

The threshold question is whether Jaca's conduct in the sham cocaine smuggling was relevant to the second sentence in the required sense. Since Jaca raised the argument below we review for clear error. United States v. Joost, 133 F.3d 125, 132 (1st Cir.1998).

In sentencing Jaca for the real cocaine smuggling, the district court treated the sham cocaine smuggling as "relevant conduct" for some purposes but not for others. We cannot accept this approach. The district court granted a dispensation from the mandatory minimum sentence under the "safety valve" provision, U.S.S.G § 5C1.2. But that provision benefits only defendants who have "not more than 1 criminal history point." U.S.S.G. § 5C1.2(a)(1). Jaca's prior sentencing in the sham cocaine smuggling would have yielded more than one criminal history point; he could not then be treated as a first offender in the second sentencing. This apparent incongruity is resolved, however, by the PSR for the real cocaine smuggling. It recommended that Jaca receive the safety valve provision for the second sentence as well as the first, because the sham, cocaine smuggling was "conduct that is part of relevant conduct for this offense." Indeed, the district court could only grant the safety valve a second time if it considered this "relevant conduct" under § 1B1.3.² But § 1B1.3 requires that all relevant conduct be taken into account in sentencing, so the drug quantities should have been aggregated.³ In fact, the government made this argument, unsuccessfully, in its objection to the second PSR, requesting that the amounts be aggregated and the Base Offense Level thereby increased. Because the district court evidently considered the sham cocaine smuggling to be "relevant conduct" for the purposes of granting the second "safety valve," but did not consider it "relevant conduct" for the purposes of calculating offense level, we must vacate Jaca's second sentence.

The parties have also briefed the underlying question of whether the sham cocaine smuggling is indeed "relevant conduct" to the second sentence. We conclude that the two offenses do relate to the same course of conduct, and therefore vacate both sentences and remand so that each can properly account for this relevant conduct under U.S.S.G. § 1B1.3.

Determining whether the sham cocaine smuggling is "relevant conduct" for the purposes of the second sentence takes us on a hopscotch path through the Guidelines. Section 1B1.3 of the Guidelines defines "relevant conduct." Subsection (a)(2) applies to "offenses ... for which § 3D1.2(d) would require grouping of multiple counts" and makes relevant conduct "all acts and omissions ... that were part of the same course of conduct or common scheme or plan." U.S.S.G. § 1B1.3(a)(2) (2002). Section 3D1.2(d) includes a list of provisions to which it applies.⁴ Section 2D1.1 of the Guidelines, under which Jaca was sentenced, is included in this list. The sham cocaine smuggling, then, is relevant conduct if it is part of the same course of conduct or a common scheme or plan. Closer inspection reveals that Jaca's various crimes are part of the same course of conduct.

For offenses to qualify as the same course of conduct, they must be ...