U.S. v. Valencia-Lucena

• Decision Date: 05 November 1992
• Docket Number: LABOY-DELGAD,CARPIO-VELE,Nos. 92-1200,VALENCIA-LUCEN,D,BASTIAN-CORTIJO,s. 92-1200
• Citation: 988 F.2d 228
• Parties: UNITED STATES of America, Appellee, v. Carlosefendant, Appellant. UNITED STATES of America, Appellee, v. Jose Manuel, a/k/a Cheo, Defendant, Appellant. UNITED STATES of America, Appellee, v. Robertoefendant, Appellant. UNITED STATES of America, Appellee, v. Edwinefendant, Appellant. to 92-1203. . Heard
• Court: U.S. Court of Appeals — First Circuit

Page 228

988 F.2d 228

UNITED STATES of America, Appellee, v. Carlos VALENCIA-LUCENA, Defendant, Appellant.

UNITED STATES of America, Appellee, v. Jose Manuel BASTIAN-CORTIJO, a/k/a Cheo, Defendant, Appellant.

UNITED STATES of America, Appellee, v. Roberto LABOY-DELGADO, Defendant, Appellant.

UNITED STATES of America, Appellee, v. Edwin CARPIO-VELEZ, Defendant, Appellant.

Nos. 92-1200 to 92-1203.

United States Court of Appeals First Circuit.

Heard Nov. 5, 1992.

Decided March 2, 1993.

Carlos Lopez-de Azua, with whom Lou Ann Delgado, was on brief, for appellant Valencia-Lucena.

Julia M. Garriga, by Appointment of the Court, for appellant Bastian-Cortijo.

Lydia Lizarribar-Masini, for appellant Laboy-Delgado.

Thomas M. Dawson, for appellant Carpio-Velez.

Jorge E. Vega-Pacheco, Asst. U.S. Atty., with whom Daniel F. Lopez-Romo, U.S. Atty., and Jose A. Quiles-Espinosa, Sr. Litigation Counsel, were on brief, for appellee.

Before TORRUELLA and STAHL, Circuit Judges, and SKINNER, ^* District Judge.

TORRUELLA, Circuit Judge.

In a previous appeal we affirmed the convictions of Carlos Valencia-Lucena, Edwin Carpio-Velez, and Jose Bastian-Cortijo under 21 U.S.C. § 846 for conspiring to possess with intent to distribute 137.2 kilograms of cocaine and under 21 U.S.C. § 963 for conspiring to import into the United States 137.2 kilograms of cocaine and we affirmed the conviction of Roberto Laboy-Delgado on the latter offense. However, we vacated the sentences and remanded for resentencing because the district court failed to determine the amount of cocaine involved for the purpose of sentencing. In so doing, we directed the district court to conduct an evidentiary hearing on that issue. United States v. Valencia-Lucena, 925 F.2d 506 (1st Cir.1991).

On remand, the parties stipulated that the evidence would be the same as heard at trial. The district court determined that the amount of cocaine for the purpose of setting the base offense level was 137.2 kilograms of cocaine and resentenced the defendants. This appeal followed.

Appellants claim that the new factual finding constitutes clear error. They argue that the district court is bound by its prior determination that the evidence was insufficient and unreliable to sentence on the basis of 137.2 kilograms since the government offered no new evidence as to amount. Appellants Bastian-Cortijo, Laboy-Delgado, Carpio-Velez argue that the district court failed to give specific reasons for its finding that the amount of cocaine was foreseeable, and further that the evidence was insufficient to support such a finding. Finally, appellants maintain that the district court improperly denied appellant Valencia-Lucena's document request at the resentencing hearing, given the court's new determination on the amount involved. We affirm the district court's findings with respect to the amount of cocaine used to determine the base offense level as well as its denial of further document discovery, but remand for specific findings on foreseeability.

I. FACTUAL BACKGROUND

As this appeal concerns the district court's findings upon resentencing, we provide only a summary of the facts; our earlier opinion recounts the history more fully. See Valencia-Lucena, 925 F.2d 506. The four appellants participated with others not part of this appeal in a scheme to fly cocaine via private aircraft from Colombia, South America to the United States through the Virgin Islands. Valencia-Lucena piloted the aircraft from Puerto Rico to Colombia, returning with the cocaine to the drop point in the Virgin Islands. Bastian-Cortijo was the "kicker"; he acted as the bombardier, allegedly dropping ten (10) igloo coolers containing twenty (20) kilograms of cocaine to retrieval boats waiting below. Carpio-Velez appeared at various times during the conspiracy; he apparently repaired some wiring on one of the retrieval boats and was alleged to have owned the cocaine at one point. Laboy-Delgado repaired mechanical problems with the boats. The government foiled the plot with the assistance of a coconspirator turned confidential informant.

Initially the government indicted appellants based on the coconspirator, confidential informant's estimate that the object of the conspiracy was the importation of 200 kilograms of cocaine. A first superseding indictment reduced the amount to 173.2 kilograms. A second superseding indictment further reduced the amount to 137.2 kilograms, the amount of cocaine recovered by the government some days after the arrests. At trial, the district court refused to admit into evidence the amount of cocaine involved in the conspiracy because it viewed the links between the seized cocaine and the defendants as weak, and believed admission of the evidence would unfairly prejudice the defendants. The district court understood that determining the actual amount was not necessary to convict on the conspiracy charges.

The district court sentenced codefendant Jose Llado-Ortiz first. ¹ The district judge subsequently clarified the findings made at that hearing in its opinion and order of December 28, 1989. The district court then applied these findings to appellants.

It was unclear to us how the district court arrived at his initial sentences. When challenged by the government, the district court adopted the government's position that 137.2 kilograms were to be used for calculation of the base offense level, but then proceeded to depart downward based "on the government's failure to adequately prove that the 137.2 kilograms of cocaine, found in coolers the government seized, was the cocaine the defendants conspired to import." United States v. Jose Llado-Ortiz, Crim. No. 89-002, slip op. at 5 (D.P.R. Dec. 28, 1989). The district court further supported the downward departure by stating that the government's case agent falsely testified before the grand jury. This latter reason was in the manner of punishment. The court concluded that "[u]pon reviewing the evidence at trial, we do not find it sufficient to sentence the defendants according to a quantity based on the 137.2 figure." Id.

Under the applicable United States Sentencing Guidelines at the time of sentencing, the base offense level for 137.2 kilograms of cocaine was 36. United States Sentencing Guidelines, Guidelines Manual, §§ 2D1.4 & 2D1.1(a)(3) (Nov. 1, 1989) (Drug Quantity Table). The district court increased the total offense level of Valencia-Lucena to 38 for his use of a special skill in piloting the aircraft, U.S.S.G. § 3B1.3, and reduced the offense levels of Carpio-Velez, Bastian-Cortijo and Laboy-Delgado to 34 for their minor roles in the conspiracy, U.S.S.G. § 3B1.2(b). As a result of the downward departure, the district court sentenced all appellants to 120 months imprisonment.

In the previous appeal we rejected the district court's departure based on its "perceived need to reprimand the government," holding that departure is not warranted by the conduct of third parties. More important to this appeal, we remanded for resentencing because the district court purported to accept the government's contention that 137.2 kilograms were involved for purposes of determining the base offense level, but then departed downward because it deemed the evidence an insufficient basis upon which to sentence. We said that the district court

expressly stated that it did not believe the government's contention that 137.2 kilograms was involved, which clearly indicates that the court was never convinced of the reliability of the government's evidence. The amount set by the government should not, therefore, have been adopted by the court in the first instance without having conducted an evidentiary hearing in order to reach a reliable determination as to the amount of cocaine.

Valencia-Lucena, 925 F.2d at 516.

On remand, the district court held a hearing on September 10, 1991 to determine the amount of cocaine involved in the conspiracy to be used to set the base offense level. The parties stipulated that the evidence was to be the same as that given at trial. On October 28, 1991, appellants jointly filed a pro se motion requesting the district court to subpoena a number of items relating to the amount. ² On October 30, 1991, the district court found that the government had sustained its burden of proving that 137.2 kilograms were involved on the basis of the testimony of the confidential informant and because evidence not admissible at trial may be considered for the purpose of sentencing.

Apparently this finding took appellants by surprise. At the January 15, 1992 sentencing hearing, the attorneys for appellants argued that the district court was bound by its prior determination that the evidence as to amount was insufficient and unreliable for the purpose of sentencing. Alternatively, they requested that resentencing be postponed and that the renewed discovery request be granted to enable appellants to offer more evidence rebutting the government's evidence on the amount of cocaine.

The district court denied the motion and resentenced the appellants based on a finding that 137.2 kilograms of cocaine were involved in the conspiracy. Under the applicable Sentencing Guidelines the base offense level was 36. Valencia-Lucena received a two level increase for the use of his skill as a pilot. The Guidelines provide a term of imprisonment ranging from 235 to 293 months for that offense level. He was resentenced to 235 months imprisonment. Bastian-Cortijo, Carpio-Velez, and Laboy-Delgado had their base offense level reduced to 34 for their minor roles in the offense. The range of terms of imprisonment was 151 to 181 months. They were resentenced to 151 months.

II. DISCUSSION

A. Base Offense Level

The crux of appellants' argument is that the district court was bound by its prior determination that the evidence as to the amount was insufficient and unreliable, and therefore, the district court should have based the base offense level on the...