U.S. v. Muniz

• Decision Date: 10 February 1995
• Docket Number: No. 94-1806,94-1806
• Citation: 49 F.3d 36
• Parties: UNITED STATES of America, Appellant, v. Fabian Carlos MUNIZ, Defendant, Appellee. . Heard
• Court: U.S. Court of Appeals — First Circuit

Page 36

49 F.3d 36

UNITED STATES of America, Appellant, v. Fabian Carlos MUNIZ, Defendant, Appellee.

No. 94-1806.

United States Court of Appeals First Circuit.

Heard Feb. 10, 1995.

Decided March 8, 1995.

Geoffrey E. Hobart, Asst. U.S. Atty., with whom Donald K. Stern, U.S. Atty., Boston, MA, was on brief, for United States.

John C. Doherty, Andover, MA, for appellee.

Before SELYA and BOUDIN, Circuit Judges, and CARTER, ^* District Judge.

SELYA, Circuit Judge.

For better or worse, the days are long since past when federal district judges wielded virtually unfettered discretion in sentencing criminal defendants. The sentencing guidelines are controversial--but they have the force of law and, therefore, command the allegiance of the courts. Judges, who enforce the laws when others transgress them, must be sensitive to their own responsibility not to be seen as placing themselves above the law. This case exemplifies the importance of that principle.

I. THE ROAD TO ARREST

Because the underlying conviction resulted from a guilty plea, we draw the facts from the uncontested portions of the Presentence Investigation Report (PSI Report) and the transcript of the sentencing hearing. ¹ See United States v. Garcia, 954 F.2d 12, 14 (1st Cir.1992); United States v. Dietz, 950 F.2d 50, 51 (1st Cir.1991).

All the events mentioned, including court proceedings, occurred in 1994 unless otherwise specifically indicated. Early that year, agents of the federal Drug Enforcement Administration (DEA) arrested a married couple, Omer and Camille Belle, in the course of a narcotics investigation. The Belles soon began to peal; they told the federal agents that they had purchased kilogram quantities of cocaine from defendant-appellee Fabian Carlos Muniz on a steady basis for two years (most recently in December of 1993), and that Muniz also had made similar sales to at least two other individuals.

The Belles agreed to cooperate in a sting operation directed against Muniz. On February 4, Camille Belle called Muniz and informed him that a friend was interested in acquiring three to four kilograms of cocaine. Muniz replied that the quantity was "no problem" and quoted a price of $23,500 per kilogram. When Camille sought reassurance that the drugs would be forthcoming, Muniz reiterated that "as long as they got [the funds], it's not a problem."

Later that evening, Omer Belle called and told Muniz that the would-be buyer wanted to purchase five kilograms of cocaine. Muniz scheduled the transaction for the following day, but voiced some uncertainty about whether he could fill the full order in one fell swoop, telling Omer: "I don't know if I can get ... as many sets for tomorrow." Asked how many sets (a code word for kilograms of cocaine) he definitely could provide, and when, Muniz replied: "Two or three maybe and the rest for the next day." At a subsequent point in the conversation, Omer again inquired about how many kilograms would be delivered the following day, and Muniz responded, "Two ... or three maybe, I don't know, I'm not sure." The two men agreed to meet the next afternoon, February 5, at an inn in Sturbridge, Massachusetts. Muniz reaffirmed that although five sets might not be immediately available, he would fill the entire order with reasonable celerity: "It could be two or three [kilograms] tomorrow and do the rest the next day."

On February 5, the men spoke again by telephone. In this conversation, Muniz emphasized that the customer needed to bring enough money to pay for as many as three sets. At approximately 8:00 p.m. on the same date, Muniz and a confederate, Juan Carlos Villar, met Omer Belle at the appointed place. The trio proceeded to a room where the customer (in reality an undercover agent) waited. Once inside, Muniz handed the agent two kilograms of cocaine. When the agent said, "I thought it was three," Muniz replied, "No, two today, three tomorrow," and volunteered: "If you want three tomorrow, I can bring three tomorrow, no problem." Following a further discussion regarding prices and possible future transactions, Muniz again assured the agent that his sources had "promised three for tomorrow, no problem." At that point, law enforcement officers arrested both Muniz and Villar. ²

II. THE ROAD TO SENTENCING

On March 2, a federal grand jury charged Muniz with possessing cocaine, intending to distribute it, 21 U.S.C. Sec. 841(a)(1), conspiracy to distribute, 21 U.S.C. Sec. 846, and aiding and abetting, 18 U.S.C. Sec. 2. Shortly thereafter, the government filed a notice memorializing its position that, for the purpose of determining Muniz's offense level under the federal sentencing guidelines, the prosecution would seek to hold him accountable for five to fifteen kilograms of cocaine, thus triggering a ten-year minimum mandatory sentence on the conspiracy count under 21 U.S.C. Sec. 841(b)(1)(A)(ii). The notice also admonished that a five-year minimum mandatory sentence applied to the other count under 21 U.S.C. Sec. 841(b)(1)(B)(ii).

On March 29, Muniz pled guilty to both counts of the indictment. In the plea contract, the parties agreed to disagree anent length of sentence; the government continued to advocate a ten-year sentence, while Muniz asserted that only a five-year minimum applied because his case involved well under five kilograms of cocaine. At the change-of-plea hearing, both parties stuck to their guns. The government reiterated that Muniz should be held responsible for at least five kilograms of cocaine because he agreed to deliver that amount to the undercover agent. Muniz, however, dismissed any statements he had made about undelivered quantities as mere "puffing or exaggerating," and urged that he should only be held accountable for the amount of contraband actually delivered.

The Probation Department sided with the government. In espousing this view, the PSI Report alluded not only to the events occurring on February 4 and 5 but also to the post-arrest statements of Muniz, Camille Belle, and Villar intimating that they had dealt with each other on a regular basis in the past. Muniz filed a number of objections to the PSI Report. He continued to debunk statements he had made about his ability to procure the full five kilograms of cocaine as unfounded rodomontade, and argued that he had no means of obtaining so huge a quantity. In respect to past dealings, Muniz admitted that he had delivered 125 grams of cocaine to Camille Belle in late 1993 but denied having sold drugs on any other occasion. Not to be outdone, the government filed an affidavit signed by a DEA agent, Steven Story, corroborating many of the facts recited in the PSI Report.

III. THE IMPOSITION OF SENTENCE

In the typical narcotics case, the sentencing guidelines link drug quantity to sentence length. See, e.g., United States v. Sepulveda, 15 F.3d 1161, 1196 (1st Cir.1993) ("In drug-trafficking cases under the sentencing guidelines, sentences are largely quantity-driven."), cert. denied, --- U.S. ----, 114 S.Ct. 2714, 129 L.Ed.2d 840 (1994). But ascertaining drug quantity is not always a simple matter of weighing and sorting. When the district court sentenced Muniz on June 15, 1994, ³ the parties waged a pitched battle concerning the three kilograms of cocaine that Muniz had agreed to supply but had not delivered. A five-year difference in the minimum mandatory sentence depended on whether these three kilograms did or did not figure in the drug quantity attributable to Muniz. ⁴

The parties agree for purposes of this appeal that the key to unlocking the drug quantity puzzle here can be found in an application note that states in pertinent part:

In an offense involving negotiation to traffic in a controlled substance, the weight under negotiation in an uncompleted distribution shall be used to calculate the applicable amount. However, where the court finds that the defendant did not intend to produce and was not reasonably capable of producing the negotiated amount, the court shall exclude from the guideline calculation the amount that it finds the defendant did not intend to produce and was not reasonably capable of producing.

U.S.S.G. Sec. 2D1.1, comment., n. 12 (Nov.1993). We have interpreted application note 12 as directing that the amount of drugs under negotiation must be considered in determining the applicability of a minimum mandatory penalty unless the sentencing court supportably finds both that the defendant did not intend to produce the additional quantity of narcotics, and that he lacked the capacity to do so. See United States v. Pion, 25 F.3d 18, 25 (1st Cir.), cert. denied, --- U.S. ----, 115 S.Ct. 326, 130 L.Ed.2d 286 (1994). Phrased another way, if the court finds by a preponderance of the evidence in regard to an aborted narcotics transaction that the defendant had either the intent or the capacity to deliver the full amount of the drugs under negotiation, then that amount must be included in the drug quantity calculation.

Here, Muniz contended that the evidence failed to show either intent or capacity. In an effort to glean the material facts, the district court asked Agent Story to testify, questioned him sua sponte, and allowed defense counsel to cross-examine him. Near the end of the disposition hearing, the court and the Assistant United States Attorney (AUSA) discussed the holding in Pion and its relevance to Muniz's case:

[AUSA]: But even if the Court were to find that [Muniz] wasn't reasonably capable of producing [the three additional kilograms], in this case because he intended to produce it, under Pion, the minimum mandatory still applies.

THE COURT: So you only need one of those factors?

[AUSA]: That's correct, your Honor.

THE COURT: Well, ... I'm not enthusiastic about this type of a sentence, because I grew up in an era where you sentence under the specific terms of the indictment. But I'm constrained to find, unless [defense counsel] can persuade me to the contrary, that there is...