
USCA1 Opinion

	




                            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 . . ."                                         -2-          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                                         -3-          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                                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.                                         -4-                    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.                                         -5-          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                                         -6-          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                                   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                                         -11-          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                                         -12-          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.                                         -13-          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.                         ______                                         -15-          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)).                                         -16-          (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).                                         -17-          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).                                         -18-          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.            ______________________________________________________________                                         -19-
