               Not For Publication in West's Federal Reporter
              Citation Limited Pursuant to 1st Cir. Loc. R. 32.3

          United States Court of Appeals
                       For the First Circuit

No. 03-1317

                             UNITED STATES,

                                Appellee,

                                     v.

                     JOSE ALTAGRACIA CASTILLO,

                        Defendant, Appellant.


          APPEAL FROM THE UNITED STATES DISTRICT COURT

                 FOR THE DISTRICT OF PUERTO RICO

       [Hon. Carmen Consuelo Cerezo, U.S. District Judge]


                                  Before

                       Boudin, Chief Judge,
              Torruella and Howard, Circuit Judges.



     Saul Roman Santiago on brief for appellant.
     H.S. Garcia, United States Attorney, and Nelson Perez-Sosa,
Assistant U.S. Attorney, on brief for appellee



                             August 4, 2005
      Per Curiam. Jose Altagracia Castillo appeals from his sentence

imposed following his guilty plea to one count of conspiracy to

possess with intent to distribute more than five kilograms of

cocaine, in violation of 21 U.S.C. § 846.1              The district court

enhanced his sentence pursuant to U.S.S.G. § 3B1.1(c), based upon

a finding that his role in the offense was that of an "organizer."

On appeal, Castillo argues for the first time that the facts on the

record do not support that enhancement.             We agree and remand for

resentencing.

      The   only    facts   contained    in   the   district   court   record

concerning Castillo's role in the offense are those contained in

the "Stipulation of Facts" incorporated in the plea agreement:

      1.    Beginning not later than September 1999, JOSE
            CASTILLO entered into an agreement with CRISTOBAL
            GARCIA, and numerous others, to acquire and
            distribute cocaine.

      2.    In furtherance of the conspiracy, JOSE CASTILLO
            helped arrange for transportation and distribution
            of   multiple   kilograms   of  cocaine   in   the
            northeastern United States.

Based on those facts, the presentence report calculated that "a

two-level enhancement is warranted for being an organizer pursuant

to   U.S.S.G.   §   3B1.1(c)."     The    district    court    followed   that

reasoning verbatim in applying a two-level enhancement, resulting



      1
       Castillo was sentenced in January 2003, before the U.S.
Supreme Court issued its decisions in Blakely v. Washington, 124 S.
Ct. 2531 (2004) and United States v. Booker, 125 S. Ct. 738 (2005).
He does not assert a claim under either Blakely or Booker.

                                    -2-
in a total offense level of 37 which, together with a Criminal

History Category of I, yielded a guideline sentencing range of 210

to 262 months' imprisonment.2         The court imposed a prison sentence

of 210 months, explaining that "[a]fter considering the defendant's

personal history and prior criminal record, a sentence at the lower

end of the guideline range will be imposed."

      Castillo concedes that he did not object in district court to

the two-level enhancement and that plain error review applies.

Therefore, appellant has the burden of demonstrating that there was

"an   'error'   that   is   'plain'    and   that   'affect[s]   substantial

rights.'" United States v. Olano, 507 U.S. 725, 732 (1993).              "If

those three factors are all met, the court of appeals then has

discretion to correct the error only if it 'seriously affects the

fairness, integrity or public reputation of judicial proceedings.'

Id. at 736." United States v. Antonakopoulos, 399 F.3d 68, 77 (1st

Cir. 2005).

      The district court imposed a two-level enhancement pursuant to

U.S.S.G. § 3B1.1(c) which mandates such enhancement "[i]f the

defendant was an organizer, leader, manager, or supervisor in any

criminal activity other than described in (a) or (b)[providing for

greater enhancements if five or more participants were involved in



      2
       As the government confirmed at the sentencing hearing, the
plea agreement contemplated that Castillo would receive a two-level
reduction in his base offense level for his minor role in the
offense. See U.S.S.G. § 1B1.2(b).

                                      -3-
criminal activity]."        §3B1.1(c).         A two-level increase under §

3B1.1(c) is justified only if the government proves that

      "(1) the criminal enterprise involved at least two
      complicit participants (of whom the defendant may be
      counted as one), and (2) the defendant, in committing the
      offense, exercised control over, organized, or was
      otherwise responsible for superintending the activities
      of at least one of those other persons."

Garcia-Morales, 382 F.3d at 19 (quoting United States v. Cruz, 120

F.3d 1, 3 (1st Cir. 1997 (en banc)); see also United States v.

Frankhauser, 80 F.3d 641, 654 (1st Cir. 1996); §3B1.1, comment.

(n.2) ("[t]o qualify for an adjustment under this section, the

defendant    must    have   been    the    organizer,         leader,   manager,   or

supervisor of one or more other participants" (emphasis added)).

      In imposing the two-level enhancement applied in the PSR, the

district court repeated verbatim the PSR's explanation as follows:

      Since defendant helped to arrange for transportation and
      distribution of multi kilograms of cocaine to the
      northeastern part of the United States and had an
      agreement with Mr. Cristobal Garcia to acquire and
      distribute cocaine, a two level enhancement is applied
      for being an organizer under Guideline Section 3B1.1(c).

"In   many   circumstances,        the    basis     for   a    role-in-the-offense

enhancement will be apparent from the record.                  When this is not so,

however,     the    sentencing     court,      in   order      to   apply   such   an

enhancement, must make a specific finding which identifies those

being managed 'with enough particularity to give credence to the

upward adjustment.'" United States v. Medina, 167 F.3d 77, 80 (1st

Cir. 1999).    The record in this case does not contain an apparent


                                         -4-
basis for the role-in-offense enhancement.                 The record establishes

only    that      Castillo      "helped      arrange    for   transportation     and

distribution" of large quantities of cocaine.                  It is not apparent

from that description that Castillo organized the activity of at

least one other participant.

       At the time of Castillo's guilty plea, after hearing Castillo

accept the stipulation of facts quoted above, the district court

stated that the plea agreement contemplated that Castillo would

receive a two-level downward adjustment because of his minor role

in   the    offense.         The   sentencing    judge    stated   that   he    would

"determine, after the probation officer reports, whether you will

actually get that minus two level reduction." However, after the

PSR was filed, the district court imposed a two-level enhancement

based      upon   the    same      factual    information     contained    in     the

stipulation of facts which was incorporated in the plea agreement.

             Under these circumstances, it was plain error for the

district     court      to   enhance   Castillo's       sentence   pursuant     to   §

3B1.1(c) absent any finding, or any basis in the record for

finding, that Castillo had organized the activities of at least one

other participant.             Castillo has demonstrated that the error

affects his substantial rights.              Absent the two-level enhancement,

the adjusted offense level would have been 35, yielding a guideline

sentencing range of 168-210 months.                    Given the court's express

inclination to sentence Castillo at the bottom of the applicable


                                          -5-
range, there is a reasonable probability that Castillo might well

have received a sentence of less than 210 months.

     Resentencing is appropriate here because there is no factual

support in this sparse record for a finding that Castillo organized

the activities of another participant.      See United States v.

Gonzalez-Mercado, 402 F.3d 294, 302 n. 6 (1st Cir. 2005)(applying

plain error review and stating that "[h]ad the district court erred

in making factual findings underlying . . . upward adjustment and,

as a result, misapplied guideline enhancements in a way that

increased the appellant's sentence, such errors would require

resentencing even under our pre-Booker precedents".

     Castillo also complains that the district court refused to

allow him in the middle of sentencing to offer an amended plea

agreement even though the government did not object.   The district

judge's reaction was understandable and given the delay in making

the motion and the fact that sentencing was underway, we would be

unlikely to regard this refusal as an abuse of discretion, but we

need not decide the matter.   Since resentencing will be necessary

in any event, the district court on remand may well be inclined to

allow the parties to propose an amended plea agreement.

     Castillo's sentence is vacated and the action is remanded for

resentencing.




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