                Not for Publication in West's Federal Reporter

           United States Court of Appeals
                       For the First Circuit
 
 

No. 13-2496

                     UNITED STATES OF AMERICA,

                                Appellee,

                                     v.

    BONIFACIO TORIBIO-ALMONTE, a/k/a CARLOS DE-LA-CRUZ-SANCHEZ,

                        Defendant, Appellant.
 

           APPEAL FROM THE UNITED STATES DISTRICT COURT
                  FOR THE DISTRICT OF PUERTO RICO

         [Hon. Jay A. García-Gregory, U.S. District Judge]
 

                                  Before

                    Kayatta, Stahl, and Barron,
                          Circuit Judges.
                                        

     George F. Gormley, with whom Stephen P. Super was on brief,
for appellant.
     Francisco A. Besosa-Martínez, Assistant United States
Attorney, with whom Rosa Emilia Rodriguez-Velez, United States
Attorney, and Nelson Pérez-Sosa, Assistant United States Attorney,
Chief, Appellate Division, were on brief, for appellee.

                                        

                           October 23, 2015
                                        
            STAHL, Circuit Judge.          The defendant, Bonifacio Toribio-

Almonte, after having pled guilty to participating in a drug-

trafficking      conspiracy,      now    appeals     from    his    sentence.      At

sentencing, the government claimed that the defendant was a leader

or organizer of the conspiracy--a claim for which the government

finds no support in the record and accordingly declines now to

defend.     Because resolution of the government's claim appeared

central to the sentencing calculus, and yet because the record is

too unclear to engage in effective appellate review on this

question,   we     vacate   the    sentence      and   remand      the   action   for

resentencing.

                            I.    Facts & Background

            We   draw   the      facts   from    the   uncontested       presentence

report ("PSR") and the transcript of the sentencing hearing.

United States v. Gaffney-Kessell, 772 F.3d 97, 98 (1st Cir. 2014).

            On April 12, 2012, a U.S. Customs and Border Protection

marine    patrol    aircraft      detected       a   small   boat    approximately

seventeen nautical miles off the coast of Puerto Rico. The vessel,

later determined to be registered in the Dominican Republic, was

sailing in the direction of Dorado, Puerto Rico, with its lights

out and, as it turned out, carrying six people on board.                     As the

aircraft approached the vessel, several bales of what appeared to

                                         - 2 -
be contraband were thrown overboard.                                               The boat was intercepted and

its passengers were arrested, including the defendant and five

other individuals, all Dominican citizens.                                               Six of the jettisoned

bales were later recovered from the water and a field test yielded

positive results for the presence of cocaine and heroin.1                                                    In

total, 146.5 kilograms of cocaine and 8.53 kilograms of heroin

were seized.

                             The defendant and the five others on board the vessel

were indicted on one count of conspiracy to import five kilograms

or more of cocaine and one kilogram or more of heroin into the

United States, 21 U.S.C. §§ 952(a), 960, 963, and one count of

conspiracy to possess and distribute five kilograms or more of

cocaine and one kilogram or more of heroin on board a vessel within

U.S.              customs                  waters,             46   U.S.C.    §§    70503(a)(1),   70504(b)(1),

70506(a).2                        The government initially offered the defendant a plea

agreement, wherein the government agreed to recommend a sentence

of 108 to 135 months, but the defendant rejected it, opting instead

to go to trial.                                   However, on the morning that trial was scheduled

                                                            
              1
       Subsequent chemical testing confirmed that the substances
were in fact cocaine and heroin.
              2
       The indictment also charged two of the codefendants with
attempting to reenter the United States without permission after
having been deported. 8 U.S.C. § 1326(a).

                                                                      - 3 -
to begin, the defendant entered a guilty plea, with no plea

agreement.    The trial proceeded against four of his codefendants,

who were ultimately convicted, while the fifth also pled guilty.

             The probation office calculated the defendant's base

offense level as 38, given the drug quantities at issue, and

calculated an overall adjusted offense level of 36 based on the

defendant's acceptance of responsibility.               The defendant had no

criminal history points, placing him in criminal history category

I.    A total offense level of 36 and a criminal history category of

I yielded a guidelines sentencing range of 188 to 235 months'

imprisonment.    The counts carried a mandatory minimum sentence of

120 months.

             In its sentencing memorandum, the government requested

a sentence of 235 months, at the high end of the guidelines range.

In    support,   the   government     submitted     that     "maritime      drug

trafficking . . . has significantly increased over the past years"

and that Puerto Rico "has seen a dramatic increase in overall drug

use and consumption[.]"         The government further stated, "[a]ny

potential argument that the defendant acted as a mere 'mule' who

now   deserves   a   downward   departure   .   .   .    directly   snubs   the

potential victims of the defendant's offense[.]"




                                    - 4 -
                             In his sentencing memorandum, the defendant requested

that              the           Court                "not       impose     a    strict     Sentencing    Guidelines

sentence[.]"                              Instead, the defendant requested a sentence below

the mandatory minimum or, "[i]n the alternative," the mandatory

minimum itself.3                                          At the sentencing hearing, defense counsel

provided                    some             additional            points      of   reference     "for   persuasion

purposes."                             Drawing the court's attention to "similar" cases

previously before the District of Puerto Rico, defense counsel

observed                      that                conspiracy         "leaders"        received      sentences    of

approximately 188 months, whereas other participants received

lesser sentences, such as 97 months, 125 months, or the applicable

mandatory minimum.                                             Defense counsel then asked the court to

consider the fact that the defendant was a "minor participant" in

fashioning                         its            sentence.           In       response,    the   district   court

acknowledged that the government's sentencing memorandum "assumes

that [the defendant] may be a mule[.]"

                             The prosecutor immediately disputed that the defendant

was a lesser participant, stating that the government believed,

based on the debriefing of a coconspirator, that the defendant was

                                                            
              3
       The defendant's sentencing memorandum posits the statutory
minimum as 60 months rather than 120 months, a mistake brought to
the district court's attention by defense counsel at the outset of
the sentencing hearing.

                                                                         - 5 -
an organizer of the drug-trafficking scheme in question.                                                     "So that

being said and following in line with the cases that [defense

counsel] mentioned," the prosecutor argued, "it would behoove this

Court to sentence him within this guideline range."

                             As the hearing drew to a close, defense counsel pushed

back              on       the           suggestion                  that    the    defendant   held   any    kind    of

leadership role.                                      Without speaking directly to defense counsel's

argument, the district court moved directly to allocution. Noting,

inter alia, the defendant's status as a father, his lack of a

criminal record or history of substance abuse, and his past illegal

entry into the United States, the court imposed a sentence of 188

months' imprisonment.4                                               The court did not indicate whether the

defendant's                          request                   for    a   below-guidelines      sentence     had   been

entertained as a motion, or denied as such, and the court made no

findings concerning the only fact debated at the hearing; i.e.,

defendant's alleged role as an organizer of the conspiracy.                                                          The

court              only              noted               that        it   had   "taken   into   consideration        the

arguments of counsel[.]"


                                                            
              4
       Over a year after the sentencing hearing, the district court
granted the defendant's motion to reduce his sentence, based on
the U.S. Sentencing Commission's change to the drug quantity table,
made retroactive pursuant to 28 U.S.C. § 994(u). The court reduced
the defendant's sentence from 188 to 151 months.

                                                                            - 6 -
                             II.   Analysis

           On appeal, the defendant attacks the reasonableness of

his sentence.     Such a challenge "involves a procedural as well as

a substantive inquiry."     United States v. Politano, 522 F.3d 69,

72 (1st Cir. 2008) (citing Gall v. United States, 552 U.S. 38, 51

(2007)).   "We first determine whether the district court made any

procedural errors" such as "selecting a sentence based on clearly

erroneous facts[.]"     Id. (quoting Gall, 552 U.S. at 51).      In the

absence of procedural error, "we next turn to the substantive

reasonableness of the sentence actually imposed[.]"           Id.    "We

review preserved objections to both the procedural and substantive

reasonableness of a sentence for abuse of discretion."           United

States v. Medina-Villegas, 700 F.3d 580, 583 (1st Cir. 2012).

Where a claim has not been preserved, our review is for plain

error.     Id.    This entails four showings: "(1) that an error

occurred (2) which was clear or obvious and which not only (3)

affected    the   defendant's   substantial   rights,   but   also   (4)

seriously impaired the fairness, integrity, or public reputation

of judicial proceedings."       Id. (quoting United States v. Duarte,

246 F.3d 56, 60 (1st Cir. 2001)).

           The defendant lodges both procedural and substantive

complaints, but we need only address one: sentencing based on

                                   - 7 -
erroneous facts.         The defendant claims that the district court

erred   by   allegedly     relying   upon    the   government's    unsupported

assertion that the defendant was an organizer of the conspiracy,

which the defendant directly and explicitly challenged when it was

raised for the first time at the sentencing hearing.

             On appeal, the government has made no attempt to defend

its assertion that the defendant was a "leader" or "organizer."

In fact, at oral argument, the government pointed to no evidence

on the record that the defendant was an organizer and, indeed,

conceded that there was no such evidence. In any event, the record

tends to belie the government's abandoned claims of leadership.

First, the offense conduct articulated in the PSR, which did not

attribute     to   the   defendant    an    aggravating-role      enhancement,

describes all defendants as having "equal roles in the conspiracy."

The government did not file an objection to the PSR or seek a

sentencing    enhancement.       Second,     the   government's    sentencing

memorandum anticipated that the defendant would claim a mere bit

part in the affair.         Rather than countering that the defendant

played a major role, the government protested that any downward

variance on this basis would snub the potential victims of the

offense.     As the district court noted, this position assumes that

the defendant was, in fact, a minor participant.            Finally, at the

                                     - 8 -
trial of the defendant's confederates, counsel for one of the

defendants told the jury that the conspirators who pled guilty,

rather than those on trial, were the ones "responsible" for the

scheme.                    The government objected to this claim for referring to

facts not in evidence.                                         The court sustained the objection.   The

government may find it convenient for the pleading defendants to

be "responsible" for the conspiracy now that their codefendants'

trial has closed, but what is sauce for the goose is sauce for the

gander.                   The record cannot abide the government's volte-face.

                             Even if we assume that the defendant did not adequately

preserve his objection,5 however, "it is impossible to determine,

based on this record, whether a clear and obvious error (or for

that matter, any error at all) occurred." United States v. Mendez,

___ F.3d ___, No. 14-1566, 2015 WL 5306457, at *4 (1st Cir. 2015).

From start to finish, the sentencing hearing centered almost


                                                            
              5
       It is typically the defendant's responsibility to police
the adequacy of the record by objecting to any deficiencies in the
district court's explanations. See United States v. Gilman, 478
F.3d 440, 447 (1st Cir. 2007). But on the facts of this case,
where defense counsel engaged in a highly consequential factual
dispute before the sentencing court, and where the government's
position in that dispute had little to no support in the record,
and where the district court failed to send any signal as to how
its resolution of the critical question played into its sentencing
rationale, we cannot justly lay sole responsibility for the
record's ambiguity at the feet of the defendant.

                                                                   - 9 -
entirely on the question of whether the defendant was a leader or

organizer as opposed to a mere minor participant in the conspiracy.

Yet, the record is silent as to how the court resolved that

question.

             "While we have on occasion gone to significant lengths

in inferring the reasoning behind, and thus in affirming, some

less-than-explicit explanations by district courts, there are

limits.     If we are in fact wholly unable to discern the court's

rationale,     appellate   review     is   unworkable         and   a     remand    is

necessary."    Id. (internal citations and quotation marks omitted).

Such is the case here.

             On the central question presented at the sentencing

hearing, the court merely observed in closing that it had "taken

into consideration the arguments of counsel to sentence him to the

minimum of the guideline range[.]"            But the sentence itself is one

that neither party clearly requested, and it therefore offers us

no   insight   into   whether   the     court    did     or   did   not    find    the

defendant's    role   to   be   minor    or     major.        Perhaps     the   court

understood the defendant to have requested a sentence at the low

end of the guidelines range rather than a sentence below the

guidelines range, but, here too, inferences from the record point




                                    - 10 -
in both directions and frustrate our capacity to engage in a

meaningful analysis.

          Although the law "does not require a district court to

be precise to the point of pedantry," United States v. Fernández–

Cabrera, 625 F.3d 48, 53 (1st Cir. 2010), we must be able to

ascertain the court's findings to engage in effective appellate

review.   See Mendez, 2015 WL 5306457, at *5.   "We cannot do that

here and, therefore, are unable to effectively consider even the

first prong of plain error review."      Id.

                         III.   Conclusion

          The Court's holding today is an exceedingly narrow one,

confined to the unique and opaque record before us.     Where the

sentencing hearing is largely devoted to a single, highly material

issue debated by the parties, and where resolution of that issue

in favor of the prosecution would be clear error, we need to know

how the court resolved the question in exercising its broad

sentencing discretion in order that we may perform our appellate

function of determining whether the sentencing was procedurally




                                - 11 -
correct.                      For the reasons stated above, the defendant's sentence

is VACATED and the action is REMANDED for re-sentencing.6




                                                            
              6
       We make no comment on the appropriate sentence that may
follow a properly conducted sentencing hearing. In addition, we
need not address the defendant's contention that the district court
committed procedural error by failing to apply the "safety valve"
provision of the sentencing guidelines that permits relief from
otherwise mandatory minimum sentences if certain criteria are met.
See 18 U.S.C. § 3553(f); U.S.S.G. § 5C1.2. We recognize that the
defendant's sentencing memorandum appears to light upon the
elements of a safety valve reduction, however ungracefully.       A
defendant does not need to incant the magic words "safety valve"
in order to invoke its protections, but the defendant also bears
the burden of raising the issue with sufficient clarity. United
States v. Richardson, 225 F.3d 46, 53 (1st Cir. 2000) ("The
defendant bears the burden of showing his entitlement to a safety
valve reduction.").    We express no opinion as to whether that
threshold was met here or whether the defendant qualifies under
the relevant provision.     The district court may evaluate the
defendant's qualifications in the first instance upon remand.

                                                               - 12 -
