U.S. v. Saro

• Citation: 306 U.S. App. D.C. 277,24 F.3d 283
• Decision Date: 23 August 1994
• Docket Number: CABRERA-BAE,A,91-3225,Nos. 91-3208,s. 91-3208
• Parties: UNITED STATES of America v. Carlos SARO, Appellant. UNITED STATES of America v. Cornelioppellant.
• Court: U.S. Court of Appeals — District of Columbia Circuit

Page 283

24 F.3d 283

306 U.S.App.D.C. 277

UNITED STATES of America v. Carlos SARO, Appellant.

UNITED STATES of America v. Cornelio CABRERA-BAEZ, Appellant.

Nos. 91-3208, 91-3225.

United States Court of Appeals, District of Columbia Circuit.

Argued Feb. 10, 1994.

Decided May 31, 1994.

Rehearing Denied Aug. 23, 1994.

Appeal from the United States District Court for the District of Columbia (90cr00449-03 and -05).

Allen H. Orenberg (appointed by the court) argued the cause and filed the briefs, for appellant Saro.

Allen E. Burns, Asst. Federal Public Defender, argued the cause, for appellant Cabrera-Baez. With him on the briefs was A.J. Kramer, Federal Public Defender.

Catherine C. Pisaturo, Asst. U.S. Atty., argued the cause, for appellee. With her on the brief were J. Ramsey Johnson, U.S. Atty. at the time the brief was filed, John R. Fisher, Elizabeth Trosman, and John P. Dominguez, Asst. U.S. Attys.

Before: BUCKLEY, WILLIAMS and GINSBURG, Circuit Judges.

Opinion for the Court filed by Circuit Judge WILLIAMS.

STEPHEN F. WILLIAMS, Circuit Judge:

Appellants Carlos Saro and Cornelio Cabrera-Baez raise a variety of challenges to their convictions for various drug offenses. Except for the attacks on their sentences, all are insubstantial. Because of apparent error in the calculation of Cabrera-Baez's "base offense level", we remand his case for further consideration. We affirm Saro's conviction in all respects.

In their joint trial, Saro and Cabrera-Baez faced three charges common to both; Saro also was charged with four additional counts by himself. The jury convicted both defendants on two of the joint counts: distributing cocaine base, or "crack", on or about September 17, 1990, see 21 U.S.C. Sec. 841, and conspiring among themselves and with others to distribute crack between July 1989 (or thereabouts) and September 1990, see id. Sec. 846. It acquitted both on the third joint count, a charge of attempting to distribute crack on or about July 20, 1989. The jury convicted Saro of three other distribution offenses with which he alone was charged; it acquitted him on one count of possession with intent to distribute in connection with 80-odd grams of crack found in an apartment linked to him.

Under the federal Sentencing Guidelines, the "base offense level" for drug crimes varies with the type and amount of drugs in question. U.S.S.G. Sec. 2D1.1(c) (November 1, 1990). Purporting to follow the guidelines' standards, the appellants' pre-sentence reports--whose findings and calculations the district court adopted--held each appellant responsible for 7266.08 grams of crack. ¹ This sum earned both appellants a base offense level of 40. See id. Sec. 2D1.1(c)(2) (covering amounts between 5 and 15 kilograms of crack). The reports then proposed for each appellant a 3-level increase pursuant to Sec. 3B1.1(b) of the guidelines, which applies "[i]f the defendant was a manager or supervisor (but not an organizer or leader) and the criminal activity involved five or more participants or was otherwise extensive". ² Saro, who had taken the stand in his own defense, also got a 2-level increase for obstructing justice by lying under oath. See id. Sec. 3C1.1. Since the guideline "range" for offense levels 43 and above is life imprisonment, id. Sec. 5A, the district court sentenced both appellants to life.

The only substantial question is whether the pre-sentence reports adopted by the district court correctly calculated the appellants' base offense level. For Saro, in fact, even this question turns out not to matter. As long as his base level is at least 38, his total offense level will be at least 43, and the guidelines will call for him to receive a life sentence. Base level 38, in turn, applies as long as at least 1.5 kilograms of crack are attributed to him. See id. Sec. 2D1.1(c)(3) (covering amounts between 1.5 and 5 kilograms). As about four kilograms that the district court attributed to him are beyond question, ³ any error in its treatment of the remaining amounts was harmless. See Fed.Rule Crim.Proc. 52(a).

Cabrera-Baez, by contrast, would benefit if he could reduce his base offense level to 38. Since he did not receive Saro's 2-level increase for obstruction of justice, such a reduction would lower his total offense level to 41, corresponding to a guideline range of 324 to 405 months (rather than life). U.S.S.G. Sec. 5A. But unlike Saro, Cabrera-Baez did not raise a timely objection to the findings or analysis of his pre-sentence report. See Receipt and Acknowledgement of Presentence Investigation Report (filed July 18, 1991) (attesting that pre-sentence report and worksheet computations contain "no material factual inaccuracies"); Sentencing Transcript (July 18, 1991) at 2-3. As Cabrera-Baez concedes, the district court's decision to adopt the findings and analysis of that report, see id. at 13, is therefore reviewable only for plain error. See, e.g., United States v. Foster, 988 F.2d 206, 209 (D.C.Cir.1993); Fed.Rule Crim.Proc. 52(b).

One could conceivably argue that 18 U.S.C. Sec. 3742(f)(1), which declares that the courts of appeals "shall" remand cases for resentencing if the sentence "was imposed in violation of law or imposed as a result of an incorrect application of the sentencing guidelines", mandates reversal even in the absence of objection whenever an appellate court finds any potentially harmful error, whether or not "plain". Though the Supreme Court did not address the question in Williams v. United States, --- U.S. ----, 112 S.Ct. 1112, 117 L.Ed.2d 341 (1992), its discussion of Sec. 3742(f)(1) did not rule out the possibility. But the plain-error doctrine was well entrenched as a background legal principle when Congress acted, and we think it fanciful to suppose that Congress intended Sec. 3742(f)(1) to override that doctrine. Cf., e.g., Fogerty v. Fantasy, Inc., --- U.S. ----, ----, 114 S.Ct. 1023, 1033, 127 L.Ed.2d 455 (1994); United States v. Giovannetti, 928 F.2d 225, 226 (7th Cir.1991). In keeping with this understanding, our sister circuits also apply the plain-error doctrine to sentencing.

As its name suggests, "plain error" exists only when the error is "obvious". United States v. Olano, --- U.S. ----, ----, 113 S.Ct. 1770, 1777, 123 L.Ed.2d 508 (1993). Obviousness is assessed from the perspective of the trial court; the error must be "so 'plain' the trial judge and prosecutor were derelict in countenancing it, even absent the defendant's timely assistance in detecting it". United States v. Frady, 456 U.S. 152, 163, 102 S.Ct. 1584, 1592, 71 L.Ed.2d 816 (1982); accord United States v. Davis, 974 F.2d 182, 190 (D.C.Cir.1992); see also United States v. Merlos, 8 F.3d 48, 51 (D.C.Cir.1993) (denying rehearing) (saying that obviousness is assessed "under current law at the time of trial"). But cf. Olano, --- U.S. at ----, 113 S.Ct. at 1777 (reserving judgment on "the special case where the error was unclear at the time of trial but becomes clear on appeal because the applicable law has been clarified").

In addition to being obvious, the error generally must also have been "prejudicial". The relevant question for gauging "prejudice" is whether the error "affected the outcome of the District Court proceedings", and, in contrast with the rule that applies when a timely objection was made, it is the defendant who bears the burden of persuasion. Id. at ----, 113 S.Ct. at 1778. But the Supreme Court has not specified exactly what a defendant must show in order to carry this burden.

At least in the context of trial errors, some circuits have indicated that defendants must prove it more likely than not that they would have been acquitted but for the errors. See, e.g., United States v. Kessi, 868 F.2d 1097, 1103 (9th Cir.1989); United States v. Silverstein, 732 F.2d 1338, 1349 (7th Cir.1984). If this standard is taken literally, it clearly is too high. The Supreme Court has declared that the showing of "prejudice" necessary under the "cause and prejudice" standard of habeas law "is significantly greater" than that necessary under the plain-error doctrine. Murray v. Carrier, 477 U.S. 478, 494, 106 S.Ct. 2639, 2648, 91 L.Ed.2d 397 (1986). Yet we know of no area of habeas law in which a petitioner would fail to establish "prejudice" if he showed, by a preponderance of the evidence, that the outcome of his trial would have been different but for the errors in question. Cf., e.g., Frady, 456 U.S. at 170, 102 S.Ct. at 1595.

At the other extreme are the standards of harmless error, controlling on direct appeal when a defendant did raise a timely objection to the asserted error. For most constitutional errors, an appellate court is to reverse if it entertains a "reasonable doubt" about whether the error affected the outcome below, Chapman v. California, 386 U.S. 18, 24, 87 S.Ct. 824, 828, 17 L.Ed.2d 705 (1967), while nonconstitutional errors are reviewed under some laxer standard not authoritatively captured in a formula (assuming a formula would genuinely clarify such a probabilistic inquiry), see United States v. Lane, 474 U.S. 438, 446 n. 9, 106 S.Ct. 725, 730 n. 9, 88 L.Ed.2d 814 (1986); cf. Kotteakos v. United States, 328 U.S. 750, 764-65, 66 S.Ct. 1239, 1247-48, 90 L.Ed. 1557 (1946). In any event, unless we are to eradicate the need for a timely objection, in plain violation of Rule 52's distinctions, we must be materially more reluctant to find "prejudice" in the absence of a timely objection than when the error was properly raised. United States v. Harrison, 931 F.2d 65, 70 (D.C.Cir.1991).

Claims of relief for ineffective assistance of counsel provide another point of comparison. There the defendant, to establish prejudice, "must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Strickland v. Washington, 466 U.S. 668, 694, 104 S.Ct. 2052, 2068, 80 L.Ed.2d 674 (1984). This test does not...