
USCA1 Opinion

	




                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ___________________        No. 94-1989                              UNITED STATES OF AMERICA,                                      Appellee,                                          v.                                 N. JOHN FONTANA, II,                                Defendant, Appellant.                                 ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                          FOR THE DISTRICT OF NEW HAMPSHIRE                   [Hon. Steven J. McAuliffe, U.S. District Judge]                                              ___________________                                 ____________________                                        Before                                Torruella, Chief Judge,                                           ___________                            Aldrich, Senior Circuit Judge,                                     ____________________                               and Cyr, Circuit Judge.                                        _____________                                 ____________________            James  L.  Sultan with  whom Rankin  and Sultan  was on  brief for            _________________            __________________        appellant.            Jean L. Ryan, Assistant United States  Attorney, with whom Paul M.            ____________                                               _______        Gagnon, United States Attorney, was on brief for appellee.        ______  ______________________                                 ____________________                                    March 28, 1995                                 ____________________                      ALDRICH, Senior Circuit Judge.   Appellant, N. John                               ____________________            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.                                             _______   ______________            Ovalle-Marquez, 36  F.3d 212, 221  (1st Cir.  1994), and  its            ______________            fact-bound  determinations of defendant's role in the offense                                         -2-            for clear error.  Id. at 225; United States  v. Jadusingh, 12                              __          _____________     _________            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.                          ______________                    ___            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                     _____________    __________________            (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                                         -3-                      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                         _____ ____            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                                         -4-            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                      _____                      with   the    government   by   providing                      information      concerning      unlawful                      activities of others, and as part of that                                                _______________                      cooperation   agreement  the   government                      _________________________________________                      agrees       that      self-incriminating                      _________________________________________                      information  provided   pursuant  to  the                      _________________________________________                      agreement  will not  be used  against the                      _________________________________________                      defendant,  then  such information  shall                      _________                      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                                  __  ______________    ______                                         -5-            181 (5th Cir. 1990);  United States v. Wilder, 15  F.3d 1292,                                  _____________    ______            1296-97  (5th Cir. 1994);  United States v.  Fields, 766 F.2d                                       _____________     ______            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.                                         -6-
