Filed: Mar. 12, 1993
Latest Update: Feb. 21, 2020
Summary: United States v. Sims, 975 F.2d 1225, 1242-43 (6th Cir. We think that the appellants fare better under 3553(c), as Rule 32(c)(3)(D) only requires that the court make a finding.7 The guidelines established a base offense level of 36 for in, excess of 50 kilograms at the date of sentencing, U.S.S.G.
UNITED STATES COURT OF APPEALS
For The First Circuit
No. 92-1200
UNITED STATES OF AMERICA,
Appellee,
v.
CARLOS VALENCIA-LUCENA,
Defendant, Appellant.
No. 92-1201
UNITED STATES OF AMERICA,
Appellee,
v.
JOSE MANUEL BASTIAN-CORTIJO, a/k/a CHEO,
Defendant, Appellant.
No. 92-1202
UNITED STATES OF AMERICA,
Appellee,
v.
ROBERTO LABOY-DELGADO,
Defendant, Appellant.
No. 92-1203
UNITED STATES OF AMERICA,
Appellee,
v.
EDWIN CARPIO-VELEZ,
Defendant, Appellant.
ERRATA SHEET
The opinion of this Court issued on March 2, 1993, is
ammended as follows:
Page 16, footnote 6, line 5, should read: ". . . fare better
. . ." instead of " . . . fair better . . ."
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March 2, 1993 UNITED STATES COURT OF APPEALS
For The First Circuit
No. 92-1200
UNITED STATES OF AMERICA,
Appellee,
v.
CARLOS VALENCIA-LUCENA,
Defendant, Appellant.
No. 92-1201
UNITED STATES OF AMERICA,
Appellee,
v.
JOSE MANUEL BASTIAN-CORTIJO, a/k/a CHEO,
Defendant, Appellant.
No. 92-1202
UNITED STATES OF AMERICA,
Appellee,
v.
ROBERTO LABOY-DELGADO,
Defendant, Appellant.
-1-
No. 92-1203
UNITED STATES OF AMERICA,
Appellee,
v.
EDWIN CARPIO-VELEZ,
Defendant, Appellant.
APPEALS FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Jaime Pieras, Jr., U.S. District Judge]
Before
Torruella and Stahl, Circuit Judges,
and Skinner,* District Judge.
Carlos L pez-de Azua, with whom Lou Ann Delgado, was on
brief for appellant Valencia-Lucena.
Julia M. Garriga, by Appointment of the Court, for appellant
Basti n-Cortijo.
Lydia Lizarr bar-Masini for appellant Laboy-Delgado.
Thomas M. Dawson for appellant Carpio-V lez.
Jorge E. Vega-Pacheco, Assistant United States Attorney,
with whom Daniel F. L pez-Romo, United States Attorney, and Jos
A. Quiles-Espinosa, Senior Litigation Counsel, were on brief for
appellee.
March 2, 1993
* Of the District of Massachusetts, sitting by designation.
TORRUELLA, Circuit Judge. In a previous appeal we
affirmed the convictions of Carlos Valencia-Lucena, Edwin Carpio-
V lez, and Jos Basti n-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 Basti n-Cortijo, Laboy-Delgado, Carpio-V lez
argue that the district court failed to give specific reasons for
its finding that the amount of cocaine was foreseeable, and
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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. Basti n-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-V lez 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.
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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 Jos Llad -
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
1 Llad -Ortiz is not part of this appeal.
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of cocaine, found in coolers the government seized, was the
cocaine the defendants conspired to import." United States v.
Jos Llad -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-V lez, Basti n-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
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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
2 The documents requested included the following: (1) Certified
logbook from U.S. Coast Guard; (2) certified logbook from British
Virgin Islands police vessel St. Ursula; (3) certified logbook
from Tortola Harbor; and (4) certified logbook from Spanish Town
Harbor from December 31, 1988 to January 10, 1989; (5) a copy of
DEA Form 473 describing the government's agreements with
confidential informant Rafael Manuel V zquez, a/k/a Robert Victor
("V zquez"); (6) FBI and NCE reports on V zquez; (7) all criminal
complaints and records on V zquez in Puerto Rico, St. Thomas, and
the United States; (8) Drug rehabilitation services and centers
-7-
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. Basti n-Cortijo, Carpio-
V lez, and Laboy-Delgado had their base offense level reduced to
34 for their minor roles in the offense. The range of terms of
attended by V zquez; and (9) any polygraph test taken by V zquez
and related data.
-8-
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
minimum amount. We disagree.
We thought our earlier ruling rather straight-forward
and clear. We held that the district court never made a factual
determination as to the amount involved in the conspiracy.
Valencia-Lucena, 925 F.2d at 515-16. Consequently, we directed
the district court to hold an evidentiary hearing on that issue.
The district court followed our mandate. It held a hearing at
which the parties stipulated that the evidence would be the same
as at trial. That stipulation was appellants' fatal mistake.
They assert on appeal that the district court is bound by its
previous finding on the same evidence. But there simply was no
finding by which the district court could be bound. We plainly
said so in the previous appeal: "[t]he district court failed to
determine the reliability of the evidence as to the quantity of
cocaine which was used." Id. at 515.
When the quantity of drugs used for the base offense
level is in dispute, the district court must make an independent
finding at an evidentiary hearing as to the reliability of the
-9-
evidence. Valencia-Lucena, 925 F.2d at 515-16; United States v.
Zuleta-Alvarez, 922 F.2d 33, 36 (1st Cir. 1990), cert. denied,
111 S. Ct. 2039 (1991); U.S.S.G. 6A1.3(a). In Zuleta-Alvarez,
we acknowledged the importance of the evidentiary hearing on the
amount of drugs used since quantity is a critical factor in
determining length of imprisonment. Defendants in a drug
prosecution cannot be expected to offer evidence on the quantity
of illicit drugs while simultaneously arguing that they were not
involved with any drug transaction. Zuleta-Alvarez, 922 F.2d at
36 (citing Chief Judge Breyer, "Federal Sentencing Guidelines and
the Key Compromises upon which They Rest," 17 Hofstra L. Rev. 1,
10 (1988)). The evidentiary hearing held exclusively for the
purpose of sentencing provides this necessary opportunity. We
remanded specifically for this purpose.
At the evidentiary hearing the government must prove
the amount of cocaine involved by the preponderance of the
evidence. United States v. Cetina-G mez, 951 F.2d 432, 435 (1st
Cir. 1991); United States v. Rodr guez-Cardona, 924 F.2d 1148,
1155 (1st Cir.), cert. denied, 112 S. Ct. 54 (1991); United
States v. Wright, 873 F.2d 437, 441 (1st Cir. 1989); see also
United States v. Sims, 975 F.2d 1225, 1242-43 (6th Cir. 1992).
At sentencing, the district court may consider "relevant
information without regard to its admissibility under the rules
of evidence applicable at trial, provided that the information
has sufficient indicia of reliability to support its probable
accuracy." U.S.S.G. 6A1.3(a); see United States v. Figaro, 935
-10-
F.2d 4, 8 (1st Cir. 1991). "Under this generous formulation, the
sentencing court has broad discretion to determine what data is,
or is not, sufficiently dependable to be used in imposing
sentence." United States v. Tardiff, 969 F.2d 1283, 1287 (1st
Cir. 1992); United States v. Iguaran-Palmar, 926 F.2d 7, 10 (1st
Cir. 1991). We review the district court's determination of the
quantity of drugs for which the defendant is responsible, like
other factual findings in the context of the Sentencing
Guidelines, for clear error. United States v. Pavao, 948 F.2d
74, 77 (1st Cir. 1991);
Wright, 872 F.2d at 444. The district
court's finding that 137.2 kilograms were involved for the
purpose of calculating the base offense level did not constitute
clear error. The coconspirator turned confidential informant
testified that appellants conspired to possess 200 kilograms of
cocaine. Appellants failed to contradict the informant's
testimony. Indeed, they offered no additional evidence as to
amount at the evidentiary hearing.
In addition, the government recovered only 137.2
kilograms because the coolers of cocaine were dropped in the sea
for retrieval; some of the coolers were apparently lost. The
district court could properly consider the 137.2 kilograms
retrieved for the purposes of sentencing despite the fact that
the physical evidence of the coolers and cocaine was not admitted
at trial because it was deemed unfairly prejudicial. This
evidence, without any alternative evidence as to amount from the
appellants, was a more than sufficient basis upon which to
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resentence, as the district court did.
B. Discovery Request
Appellants' contend that the court should have
postponed resentencing to allow them further document discovery.
Appellants hoped to uncover information to challenge the
government's evidence. They made this new request a month and a
half after the September 10, 1991 evidentiary hearing mandated by
this court. Appellants renewed the request after the district
court found 137.2 kilograms to have been the object of the
conspiracy. The district court denied the request.
In effect, appellants request two bites at the apple.
Like the district court, we are disinclined to oblige. We review
the district court's denial of further discovery for clear error.
Pavao, 948 F.2d at 77;
Wright, 873 F.2d at 444. The district
court enjoys wide discretion in determining relevance at
sentencing hearings. Iguaran-Palmar, 926 F.2d at 10. First,
appellants had their opportunity to contest the government's
evidence at the September 10, 1991 hearing; they failed to take
advantage of it. They cannot resuscitate that right so late in
the proceedings. See Zuleta-Alvarez, 922 F.2d at 36. Second,
the district court properly could find that the documents
requested ultimately would not affect its decision that the
government's evidence on the amount was sufficient and reliable.
Appellants failed to demonstrate how the documents requested
would undermine the government's evidence. Both defendants and
the government presented testimony and cross examined the
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commanders of the Coast Guard vessel and the British Virgin
Islands police vessel at trial; we cannot see, and appellants
have failed to show, how the logbooks would have added anything
to the testimony already received. The same can be said with
respect to the documents requested regarding the government's
confidential informant V zquez; appellants had ample opportunity
to assail his credibility both at trial and at the evidentiary
hearing. We cannot say that the district court was clearly
erroneous in denying appellants' discovery request.
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C. Foreseeability of the Quantity
The district court applies the law under the guidelines
applicable on the date of sentencing. 18 U.S.C. 3553(a)(4)
(1985 & Supp. 1992); Isabel v. United States, 980 F.2d 60, 62
(1st Cir. 1992). On December 28, 1989, the original sentencing
date, U.S.S.G. 2D1.4(a), 1B1.3,3 (Nov 1, 1989) and their
Application Notes4 directed the sentencing judge to consider
conduct and quantities that were in furtherance of the conspiracy
and reasonably foreseeable to defendants to determine the
quantity of cocaine for the base offense level. United States v.
Garc a, 954 F.2d 12, 15-16 (1st Cir. 1992); United States v.
3 Section 1B1.3 Relevant Conduct (Factors that Determine the
Guideline Range) provides in relevant part: "(a) (ii) cross
references in Chapter Two, . . . shall be determined on the basis
on the following: (1) all acts and omissions committed or aided
and abetted by the defendant, or for which the defendant would be
otherwise accountable, that occurred during the commission of the
offense of conviction, in preparation for that offense, or in the
course of attempting to avoid detection or responsibility for
that offense, or that otherwise were in furtherance of that
offense . . . ." U.S.S.G. 1B1.3 (Nov. 1, 1989).
4 The Application Note stated, "[i]n the case of criminal
activity undertaken in concert with other, whether or not charged
as a conspiracy, the conduct for which the defendant "would be
otherwise accountable" also includes conduct of others in
furtherance of the execution of the jointly undertaken criminal
activity that was reasonably foreseeable by the defendant."
U.S.S.G. 1B1.3, comment. (n.1) (Nov. 1, 1989)(emphasis added).
Section 1B1.3 has been amended and clarified with respect to its
various provisions on several occasions, most significantly
effective November 1, 1992. The appendix states that the 1992
amendments clarify and more fully illustrate the operation of
this guideline and that material was moved from the commentary to
the guideline and rephrased for greater clarity. U.S.S.G App. C
439 (1992).
-14-
Bianco, 922 F.2d 910, 913 (1st Cir. 1991).5
The government relies on United States v. Edwards, 945
F.2d 1387 (7th Cir. 1991), cert. denied,
112 S. Ct. 1590 (1992),
for the proposition that in cases in which defendants are charged
with one isolated set of facts that comprise the entire
conspiracy, the district court need not make individual findings
with respect to each defendant. It argues that once an amount is
determined for a temporally limited, small, and simple
conspiracy, all defendants associated with the conspiracy should
be held to foresee that amount. Edwards involved a complex and
sophisticated heroin retailing business that had a chain of
suppliers, mid-level managers, street vendors and wholesalers.
The Seventh Circuit required specific findings as to each
defendant since they had joined at different times and may have
intended to enter a more limited agreement. Id. at 1397. The
government contends that the foreseeability inquiry has always
focused upon whether the disputed conduct fell outside the scope
of the conspiracy in factually complicated cases. We do not read
Edwards to limit the foreseeability inquiry to complex
conspiracies. Nor do we find a principle that would sustain such
5 We garner further support from later clarification and
expansion of the application notes to U.S.S.G. 1B1.3.
Application Note 2 currently states that "[w]ith respect to
offenses involving contraband (including controlled substances),
the defendant is accountable for all quantities of contraband
with which he was directly involved and in the case of a jointly
undertaken criminal activity, all reasonably foreseeable
quantities of contraband that were within the scope of the
criminal activity that he jointly undertook." U.S.S.G. 3B1.3,
comment. (n.2). We may consider this clarifying language at the
appeal stage. Isabel, 980 F.2d at 62.
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a limitation. The criminal conspiracy net is often cast widely.
Individuals may be involved who know that the agreement they have
entered is illegal but have no way to foresee the magnitude or
ambition of the enterprise, as in the case of an individual hired
to remedy an unexpected complication in the main conspirators'
plot. The Guidelines require that the government prove by a
preponderance of the evidence that such individual could
reasonably foresee the amount contemplated by the conspiracy.
U.S.S.G. 2D1.4(a), 1B1.3.
Appellants Carpio-V lez, Basti n-Cortijo, and Laboy-
Delgado contend that 18 U.S.C. 3553(c) (Supp. 1992)6 requires
that the district court make a specific finding of foreseeability
supported by reasoning and facts in the record. They argue that
the district court's cursory rejection of their objection that
the government failed to prove foreseeability runs afoul of this
provision. The government contends that the district court made
a specific finding on foreseeability, and that it was not
required to provide specific, fact intensive reasons as the
record amply showed that appellants knew that in excess of fifty
6 18 U.S.C. 3553(c) requires that "[t]he court, at the time of
sentencing, shall state in open court the reasons for its
imposition of the particular sentence . . . ." Appellants also
argue that Fed. R. Crim. P. 32(c)(3)(D) imposes that burden as
well. We think that the appellants fare better under 3553(c)
as Rule 32(c)(3)(D) only requires that the court make a finding.
The commentary to the Rule notes that this does not impose an
onerous burden. "It does not even require the preparation of a
transcript." Just a finding is required; thus, appellants'
reliance on Rule 32 is misplaced. See United States v. Webster,
960 F.2d 1301, 1310 (5th Cir.), cert. denied, 113 S. Ct. 355
(1992); United States v. McDowell, 918 F.2d 1004, 1013 (1st Cir.
1990) (argument made academic by holding under 3553(c)).
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(50) kilograms were involved.7
We have stated in related contexts that 3553(c)
requires that when sentencing under the guidelines, a district
court must make reasonably specific findings to allow for
meaningful appellate review. United States v. Schultz, 970 F.2d
960, 963 & n.7 (1st Cir. 1992), cert. denied,
61 U.S.L.W. 3479
(1993); United States v. McDowell,
918 F.2d 1004, 1012 (1st Cir.
1990). Other circuits similarly require the district court to
supply sufficient reasoning for its sentencing determinations.
See, e.g., United States v. Negr n, 967 F.2d 68, 72 (2d Cir.
1992) (vacating and remanding for finding on foreseeable quantity
when defendant contests); United States v. Puma, 937 F.2d 151,
160 (5th Cir. 1991)("The reasonable foreseeability required of
2D1.4 requires a finding separate from a finding that the
defendant was a conspirator."), cert. denied, 112 S. Ct. 1165
(1992); United States v. Duarte, 950 F.2d 1255, 1263 (7th Cir.
1991) ("a district court should explicitly state and support,
either at the sentencing hearing or (preferably) in a written
statement of reasons, its findings that the unconvicted
activities bore the necessary relation to the convicted
offense"), cert. denied, 113 S. Ct. 174 (1992); United States v.
Guti rrez, 931 F.2d 1482, 1492 (11th Cir.) (requiring specific
findings), cert. denied, 112 S. Ct. 321 (1991); see also United
States v. Turner, 898 F.2d 705, 709-710 (9th Cir.), cert. denied,
7 The guidelines established a base offense level of 36 for in
excess of 50 kilograms at the date of sentencing, U.S.S.G.
1D1.4, 1D1.1(a)(3) (Drug Quantity Table).
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495 U.S. 962 (1990).8
In the present case, the district judge said very
little during the resentencing hearing and his opinion and order
is not much help either. The district court stated at the
sentencing hearing after appellants' lengthy argument on the
foreseeability issue: "Well, independently of that . . . [i]n
light of common experience, the evidence showed that there
existed on Carpio[-V lez]'s part foreseeability of the amount of
cocaine involved in this case." Sentencing Hearing, Valencia-
Lucena, Crim. No. 89-002, at 32 (Jan. 15, 1991). The court then
relied on this statement with respect to Basti n-Cortijo and
Laboy-Delgado.
Despite the paucity of words from the district court,
the record provides a sufficient basis for the district court's
finding of foreseeability with respect to Basti n-Cortijo.
Appellant Basti n-Cortijo was found by the district court to have
acted as the "kicker," which means that he flew with Valencia-
Lucena from Colombia, South America transporting 10 igloo coolers
filled with twenty (20) kilograms of cocaine each, and dropped
the cocaine from the plane when the pilot reached the designated
area. We note that Valencia-Lucena did not appeal on this
ground, indeed it would have been as frivolous as we now find
Basti n-Cortijo's appeal. As the "kicker," there is simply no
8 We do not address appellant's argument with respect to which
party bears the burden on the foreseeability issue as we
understand the government to believe that it met that burden.
See Negr n, 967 F.2d at 72-73 (placing burden on defendant to
establish lack of foreseeability).
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way that he could not have known that he was dropping in excess
of 50 kilograms to his coconspirators below.
Appellants' Laboy-Delgado and Carpio-V lez present a
better case. With respect to them, the district court only found
that: "The coolers [dropped by Valencia-Lucena and Basti n-
Cortijo] were to be subsequently retrieved and imported into
Puerto Rico with the assistance of defendants Carpio-V lez and
Laboy[-Delgado]." United States v. Valencia-Lucena, No. 89-002,
slip op. at 3 (D.P.R. Oct. 30, 1991). This statement is an
insufficient basis for a finding of foreseeability. As we read
the record, it is not strictly accurate as the evidence suggests
that Carpio-V lez and Laboy-Delgado were recruited to repair the
retrieval boats.
The district court's failure to more fully state the
evidence upon which it based its finding of foreseeability as to
the amount of cocaine with respect to Carpio-V lez and Laboy-
Delgado at the sentencing stage has frustrated this court's
appellate task. McDowell, 918 F.2d at 1012 & n.12. We make no
comment on whether the record supports a finding of
foreseeability on the preponderance of the evidence; this task is
for the district court.
We affirm the resentencing of Nos. 92-1200 and 92-1201.
We vacate and remand Nos. 92-1202 and 92-1203 for resentencing.
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