USCA1 Opinion
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
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No. 94-1989
UNITED STATES OF AMERICA,
Appellee,
v.
N. JOHN FONTANA, II,
Defendant, Appellant.
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APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
[Hon. Steven J. McAuliffe, U.S. District Judge]
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Before
Torruella, Chief Judge,
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Aldrich, Senior Circuit Judge,
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and Cyr, Circuit Judge.
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James L. Sultan with whom Rankin and Sultan was on brief for
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appellant.
Jean L. Ryan, Assistant United States Attorney, with whom Paul M.
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Gagnon, United States Attorney, was on brief for appellee.
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March 28, 1995
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ALDRICH, Senior Circuit Judge. Appellant, N. John
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Fontana, is one of a number of persons charged under 18
U.S.C. 471, 473 and 474 with the manufacture, possession
and delivery of counterfeit United States currency. Fontana
waived indictment and pled guilty pursuant to a plea
agreement. He appeals from his sentence.
Following execution of the plea agreement, Fontana
cooperated fully with federal authorities. At sentencing,
the government did not object to his requesting a three-level
downward adjustment for prompt acceptance of responsibility,
and it filed a motion for a four-level downward departure for
his substantial assistance in further uncovering the scheme,
pursuant to United States Sentencing Guidelines ("U.S.S.G.")
5K1.1. The court granted these motions, and they are not
before us. However, the government recommended a three-level
enhancement for a managerial or supervisory role under
U.S.S.G. 3B1.1(b), and the court, in sentencing defendant,
agreed. Fontana timely challenges the enhancement as a
violation of U.S.S.G. 1B1.8, that he alleges protects him
from the use of information he provided pursuant to his plea
agreement.
We review a district court's legal interpretation
of the sentencing guidelines de novo, United States v.
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Ovalle-Marquez, 36 F.3d 212, 221 (1st Cir. 1994), and its
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fact-bound determinations of defendant's role in the offense
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for clear error. Id. at 225; United States v. Jadusingh, 12
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F.3d 1162, 1169 (1st Cir. 1994).
The sentencing guidelines mandate a three level
upward adjustment if the government demonstrates that (1) the
defendant was a supervisor or manager, and (2) the criminal
scheme involved five or more persons, or was otherwise
extensive. Ovalle-Marquez, 36 F.3d at 225. See U.S.S.G.
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3B1.1(b). Neither "supervisor" nor "manager" is defined
under 3B1.1, but it is sufficient that a defendant
recruited, instructed or supervised at least one other
person. United States v. Rodriguez Alvarado, 985 F.2d 15, 20
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(1st Cir. 1993). The court's so finding here was clearly
warranted. Fontana does not dispute that he recruited and
directly supervised a Mr. Aquire. The issue is whether the
participation of Aquire, and Fontana's supervision of him,
was properly available to the district court to consider in
calculating his sentence.
In his plea agreement, Fontana promised to
cooperate in all government investigations and prosecutions
of others involved in the counterfeiting operation. In turn,
the government made three specific promises:
In exchange for his plea and cooperation,
the Government agrees: (1) that it will
not object to an appropriate reduction
for acceptance of responsibility . . . ;
(2) that it will file a Motion pursuant
to U.S.S.G. 5K1.1 on the defendant's
behalf at the time of sentencing if the
defendant provides substantial assistance
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in the investigation and prosecution of
others. . . . ; (3) that it is not aware
of more than 1.5 million dollars in
counterfeit U.S. currency in the instant
case and that under U.S.S.G. 1B1.8 if
the defendant provides information which
leads to the discovery of more, it will
not be used against him to determine his
adjusted offense level.
Defendant challenges the three-level enhancement on
the ground, inter alia, that the court could not find five
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participants as "counters." Since the court agreed that it
could not count Fontana's wife, it must have considered
Aquire in order to meet 3B1.1(b)'s requirements. (The
government contended that there were five who had not been
disclosed, but, on the record, it is mistaken.) The court,
accordingly, in order to find five, may have interpreted the
plea agreement as not standing in the way because of
Fontana's identifications. In any event, without comment, it
found five.
We think this interpretation accords with the plain
reading of the agreement. Examination shows no promise by
the government not to use information about the involvement
of other individuals except where such information led to the
discovery of more than the $1.5 million counterfeit of which
it was already aware. (None was.) A single, limited,
promise manifestly cannot be construed into a general one
across the board. Plaintiff was promised a willingness to
recommend downward reductions for acceptance of
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responsibility and for cooperation, but the only upward
exemption (item 3), was that if his disclosures led to
finding more counterfeit currency than the government already
knew of, they should not be used against him in calculating
his offense level.
Section 1B1.8(a) of the guidelines provides:
Where a defendant agrees to cooperate
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with the government by providing
information concerning unlawful
activities of others, and as part of that
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cooperation agreement the government
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agrees that self-incriminating
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information provided pursuant to the
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agreement will not be used against the
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defendant, then such information shall
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not be used in determining the applicable
guideline range, except to the extent
provided in the agreement.
(Emphasis supplied). U.S.S.G. 1B1.8(a). We do not read
from this a promise relating to the disclosure of any
participant, unless it led to the discovery of more
counterfeit currency. Evidently the court may have felt the
same.
We have, however, a singular situation. Not only
did Fontana read his agreement as excluding for all purposes
individuals disclosed by him, but the government agreed.
This calls for consideration. While in its terms the
agreement does not support Fontana, plea agreements,
involving possible misapprehension by defendants under
stress, may invite equitable adjustments at the district
court's discretion. Cf. United States v. Kinsey, 917 F.2d
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181 (5th Cir. 1990); United States v. Wilder, 15 F.3d 1292,
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1296-97 (5th Cir. 1994); United States v. Fields, 766 F.2d
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1161, 1168 (7th Cir. 1985). We particularly believe
discretion should be considered here because at sentencing,
defendant's position with respect to Aquire was agreed to by
the government. We cannot deal adequately with this on this
record. In view of its silence we cannot tell whether the
court chose, equitably, to adopt defendant's interpretation
of the agreement and found, erroneously, that there were five
or more independent participants, or whether it read the
agreement as written in spite of the government's
acquiescence, which it was free to do. The sentence is
vacated, and the case remanded to the district court for
further proceedings consistent with this opinion.
So ordered.
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