
USCA1 Opinion

	




                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                              _________________________          No. 96-1677                              UNITED STATES OF AMERICA,                                      Appellee,                                          v.                       JULIO ROBLES-TORRES, a/k/a ROMERO - 55,                                Defendant, Appellant.                              _________________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                           FOR THE DISTRICT OF PUERTO RICO                    [Hon. Hector M. Laffitte, U.S. District Judge]                                              ___________________                              __________________________                                        Before                               Torruella, Chief Judge,                                          ___________                            Coffin, Senior Circuit Judge,                                    ____________________                              and Selya, Circuit Judge.                                         _____________                              __________________________               Joseph C. Laws, Jr. for appellant.               ___________________               Corbin A. Weiss, with whom  John C. Keeney, Acting Assistant               _______________             ______________          Attorney  General, Theresa  M.B. Van  Vliet, Chief,  Narcotic and                             ________________________          Dangerous Drug Section, U.S. Department of Justice, and Guillermo                                                                  _________          Gil, United States Attorney, were on brief, for appellee.          ___                              __________________________                                    March 28, 1997                             __________________________                     SELYA,  Circuit  Judge.     Defendant-appellant   Julio                    SELYA,  Circuit  Judge.                            ______________          Robles-Torres (Robles) invites  us to set aside  his sentence and          order a new round of proceedings.  Descrying no cognizable error,          we decline the invitation.                                          I                                          I                    Robles was  among fifty-two  defendants  indicted as  a          part  of a  gigantic drugs-and-money  operation.   The government          charged him,  inter alia,  with conspiring to  distribute cocaine                        _____ ____          and  conspiring to launder funds.  See 21 U.S.C.    841(b)(1)(A),                                             ___          846 (1994); 18 U.S.C.   1956(h)(1994).                    Robles, who claims to have suffered  from schizophrenia          since adolescence, requested a  competency determination.  See 18                                                                     ___          U.S.C.   4241  (1994).   He was examined  by a psychiatrist,  Dr.          Jos  R. Fumero-Vidal, who informed the district court in February          1995  that the appellant was  not competent to  stand trial.  The          district  court provisionally accepted Dr. Fumero-Vidal's opinion          and remitted the appellant to the federal correctional center and          hospital at Butner, North Carolina,  with directions to conduct a          further examination.                    Initially, prison officials concurred with  Dr. Fumero-          Vidal's assessment  (albeit concluding that,  at the time  of the          crimes, Robles "was able to appreciate the nature and quality . .          . of his acts").  On November 6, 1995, however, prison  officials          issued  a new evaluation in  which they declared  that Robles "is          now competent to stand trial."  The new report also advised that,          given Robles' "inconsistent clinical presentation  throughout the                                          2          course of his hospitalization,"  the examiners had concluded that          he  was "malingering,"  that  is, that  he  had engaged  in  "the          intentional production of  false or grossly exaggerated  physical          or  psychological  symptoms, motivated  by  external incentives."          The report  went  on to  state that  the appellant's  malingering          comprised   his   "method  of   attempting   to  elude   criminal          responsibility."                    On December  18, 1995, the district  court found Robles          competent  to stand  trial.   Shortly thereafter,  Robles pleaded          guilty to both conspiracy charges.  On May 14, 1996, the district          court sentenced him  to a 135-month prison  term (the low end  of          the applicable guideline range).  This appeal followed.                                          II                                          II                    The appellant assigns error in two respects.  First, he          alleges that the district  court erred in refusing to  permit him          to present the  testimony of  a psychiatrist,  Dr. Gerardo  Sanz-          Ortega,  at the disposition hearing.   Second, he  avers that the          court   erroneously  refused  to   depart  below   the  guideline          sentencing  range (GSR)  in imposing sentence.1   We  treat these          asseverations separately.                                          A.                                          A.                                          __                    Under  the federal  sentencing  guidelines,  "when  any          factor important to the sentencing determination is reasonably in                                        ____________________               1All references  herein to the sentencing  guidelines are to          the November 1995 edition,  in effect on the date  of sentencing.          See United States  v. Harotunian,  920 F.2d 1040,  1041-42 &  n.2          ___ _____________     __________          (1st Cir. 1990).                                          3          dispute, the parties  shall be given  an adequate opportunity  to          present information  to the court  regarding that factor."   USSG           6A1.3.   This provision does not mean that every factual dispute          pertinent  to the  imposition  of sentence  demands a  full-dress          evidentiary hearing   after all, many disputes  can adequately be          heard  and determined on a paper record, see, e.g., United States                                                   ___  ____  _____________          v. Lilly,  983 F.2d 300, 310-11 (1st Cir. 1992); United States v.             _____                                         _____________          Shattuck, 961 F.2d 1012, 1015 (1st Cir. 1992); Aoude v. Mobil Oil          ________                                       _____    _________          Corp., 862 F.2d 890, 894 (1st Cir.  1988)   but it does mean that          _____          an evidentiary  hearing sometimes may be  required at sentencing.          See  USSG   6A1.3, comment.    Still,  neither the  Confrontation          ___          Clause  nor the  rules  of evidence  apply during  the sentencing          phase of a criminal proceeding, see United States v. Tardiff, 969                                          ___ _____________    _______          F.2d 1283,  1287  (1st Cir.  1992), and  evidentiary hearings  at          sentencing  are   and should  remain   the  exception rather than          the  rule.   In  the  last  analysis,  the  decision to  hold  an          evidentiary hearing at the  time of sentencing or, alternatively,          to eschew such a hearing, lies within the sound discretion of the          sentencing  court.  See Lilly,  983 F.2d at  310-11; Tardiff, 969                              ___ _____                        _______          F.2d at  1286; United States v. Garcia, 954 F.2d 12, 19 (1st Cir.                         _____________    ______          1992).                    We  see   nothing  remotely  resembling  an   abuse  of          discretion in this instance.  We base this determination on three          interrelated sets  of circumstances:   the availability  of other          information,  the essentially cumulative  nature of  the proposed          testimony,  and the  appellant's  failure to  explore alternative                                          4          methods of presentation.                    In  the first  place,  the appellant  did  not seek  to          contradict  the  factual   predicate  laid  in  the   Presentence          Investigation  Report (PSI Report),  and that  document described          his  psychiatric history and treatment in some detail.  The court          also  had the  benefit  of careful  analyses  of the  appellant's          mental condition from the forensic psychiatrists at Butner, along          with an opinion letter from Dr.  Fumero-Vidal.  What is more, the          judge  had  presided over  the trial  of  two of  the appellant's          codefendants,  in  the  course  of which  numerous  tape-recorded          telephone conversations  between  the appellant  and his  cohorts          were aired.  These conversations supplied the court  with direct,          contemporaneous  evidence of the appellant's mental condition and          degree of impairment during the time frame when the offenses were          being committed.                    In   the  second  place,  Dr.  Sanz-Ortega's  testimony          apparently  would have been cumulative.  We reach this conclusion          based  largely on the offer of proof that the appellant's counsel          tendered to the trial judge.  In it, he stressed that, if allowed          to  testify,  Dr.  Sanz-Ortega  would  describe  the  nature  and          etiology of the disease and its general attributes.  Although Dr.          Sanz-Ortega had been the appellant's attending psychiatrist since          1979,  the attorney did  not claim that  he (the doctor)  had any          specific  knowledge of  the appellant's  mental condition  at the          time the conspiracies were  ongoing, and there is nothing  in the          record  that leads us to believe that his general testimony about                                          5          Robles' psychiatric  history and the nature of  the illness would          have added perceptibly to the historical data and the comments of          the other  psychiatrists.    As  matters stood,  the  record  was          replete with evidence that Robles had suffered from schizophrenia          for a long  time but  that its severity  (and, consequently,  his          symptomatology)  fluctuated, with  the result that  the condition          sometimes affected his behavior  and sometimes did not.   Nothing          in  the offer of proof either contradicted this evidence or added          a significant new dimension to it.  We think it is settled beyond          cavil  that a  sentencing court need  not convene  an evidentiary          hearing merely to consider  essentially cumulative evidence.  See                                                                        ___          United States v. Regan, 989 F.2d 44, 46-47 (1st Cir. 1993).          _____________    _____                    The final  flaw in the appellant's  argument relates to          the  mode of presentation:   the record reveals  no cogent reason          why the proposed testimony of Dr. Sanz-Ortega could not have been          reduced  to  writing  and proffered  in  the  form  of a  report.          Sentencing hearings are  not meant to be mini-trials,  see United                                                                 ___ ______          States  v. Ottens,  74  F.3d  357, 360  (1st  Cir. 1996),  and  a          ______     ______          defendant  cannot dictate the form of the evidence that he wishes          the court to ponder.  To the contrary, a party has an obligation,          where  circumstances  reasonably  permit, to  attempt  to present          desired evidence  in a format convenient  for ready consideration          by the sentencing court.                    To be sure the court may elect to allow live testimony;          and,  moreover, the court may be required to allow live testimony          in a  few instances  (say, when  an  issue takes  a defendant  by                                          6          surprise or when  the gist  of the proffered  evidence cannot  be          captured in writing).  In this instance, however, the court chose          not  to hear the doctor's testimony, and   we do not think it was          required  to do so.   A sentencing court  has broad discretion in          determining whether live testimony is, or is not, essential, see,                                                                       ___          e.g.,  United States v. Claudio, 44  F.3d 10, 16 (1st Cir. 1995),          ____   _____________    _______          and nothing  in the   instant  record indicates a  need for  live          testimony.   The disposition hearing did  not spring unexpectedly          out  of some  dark  abyss, but,  rather,  was scheduled  well  in          advance,  and the offer of  proof did not  suggest any particular          reason  why  Dr. Sanz-Ortega's  input,  like  that of  the  other          psychiatrists  who  had  examined  Robles, could  not  have  been          conveyed  satisfactorily in  a written  report.   The appellant's          failure to explore this avenue  weighs against his assignment  of          error.                    We have said enough on this score.  Considering all the          circumstances,  we   detect  no  misuse  of   discretion  in  the          sentencing  court's  denial of  the  appellant's  request for  an          evidentiary  hearing.    See,  e.g.,  Regan,  989  F.2d  at 45-47                                   ___   ____   _____          (upholding as within the district court's discretion a refusal at          sentencing  to allow live testimony by physicians on the issue of          the defendant's mental capacity).                                          B.                                          B.                                          __                    The  appellant  does not  challenge  the  lower court's          construction  of  the GSR  (offense  level  33; criminal  history                                          7          category I;  imprisonment range 135-168 months).2   Nevertheless,          he asserts that the  sentencing court blundered in denying  him a          downward departure on the  ground of diminished mental capacity.3          We lack jurisdiction over this claim.                    We need  not tarry.   "It  is by  now axiomatic  that a          criminal  defendant  cannot  ground  an appeal  on  a  sentencing          court's discretionary decision not  to depart below the guideline                                        ____________________               2In  its appellate  brief, the  government calls  a possible          bevue  to our  attention.   During the  disposition hearing,  the          district court noted conclusorily that USSG  5C1.2 did not apply.          This  section permits  a  court  to  sentence a  defendant  below          certain mandatory statutory minima  when the defendant  satisfies          specified criteria set forth  in USSG  5C1.2(1) - (5).   In cases          in which the offense level exceeds 25, USSG  2D1.1(b)(4) mandates          a  two-level  reduction  if  a defendant  meets  these  criteria.          Robles  did not receive the  two-level reduction     in fairness,          neither the  appellant nor the government  requested the district          court to consider the applicability  of  2D1.1(b)(4), and the PSI          Report  is  silent  in that  respect     and  the prosecutor  now          suggests that this likely was an oversight because he "has reason          to  believe that appellant may be eligible for such a reduction."          Government Br. at  8 n.2.  Under the circumstances, we direct the          district court, on remand,  to reconsider the computation  of the          GSR in  light  of  the  government's concession,  and  to  reduce          Robles'  sentence if the court determines it is appropriate to do          so.               3The appellant's  claim is  premised on USSG   5K2.13, which          provides:                         If the defendant committed a non-violent                    offense  while  suffering from  significantly                    reduced  mental  capacity not  resulting from                    voluntary use of  drugs or other intoxicants,                    a lower sentence may be warranted  to reflect                    the extent to  which reduced mental  capacity                    contributed to the commission of the offense,                    provided   that   the  defendant's   criminal                    history   does  not   indicate  a   need  for                    incarceration to protect the public.                                                     8          sentencing range."   United States  v. Pierro, 32  F.3d 611,  619                               _____________     ______          (1st  Cir.  1994),  cert. denied,  115  S.  Ct. 919  (1995).   An                              _____ ______          exception  to  this black-letter  rule recognizes  that appellate          jurisdiction  may exist "if it appears that the failure to depart          stemmed from  the sentencing court's mistaken  impression that it          lacked the  legal authority to  deviate from the  guideline range          or,  relatedly, from  the  court's misapprehension  of the  rules          governing departures."  United  States  v. Gifford, 17  F.3d 462,                                  ______________     _______          473 (1st Cir. 1994).  We pointed out in Pierro that it is easy to                                                  ______          "confuse the exception and the rule."   32 F.3d at 619.  We  made          it plain, however,  that when  the decision not  to depart  rests          primarily  on differential  factfinding,  the exception  does not          apply.  See id.                  ___ ___                    This case  fits comfortably within the  confines of the          general rule.   Although the appellant  argues vociferously that,          in  denying  his  motion  for  a downward  departure  under  USSG           5K2.13,  the district  court mistakenly  equated the  concept of          competency  to stand  trial with  the much  different concept  of          reduced  mental capacity at the  time of the  offense (and, thus,          misapprehended  the law governing departures under USSG  5K2.13),          the record of  the disposition  hearing belies this  claim.   The          transcript reveals  with crystalline  clarity that the  court, in          reaching its decision, understood that  it had the discretion  to          depart   downward  if   it  found   that  Robles   suffered  from          significantly reduced  mental capacity  at the time  he committed          the  crimes of  conviction.   But the  court, after  studying the                                          9          evidence and hearing oral argument, made a specific finding  that           5K2.13 did not  apply because  Robles "did not  commit the  acts          charged in  the indictment  while suffering from  a significantly          reduced mental capacity."  The court went on to find, as a matter          of fact,  that the crimes  occurred while  Robles was in  a "very          lucid"  phase, and that his criminal behavior "was the conduct of          a  person who  was not doing  those acts because  of a diminished          capacity resulting from a mental condition."                    This is  an exercise  in differential factfinding    no          more,  no less.   The  ensuing decision  not to depart  was based          squarely on  this  factfinding, unaccompanied  by any  detectable          error of law.  Hence, the departure decision is not reviewable on          appeal.4  See Pierro, 32 F.3d at 619; Tardiff, 969  F.2d at 1290;                    ___ ______                  _______          United  States  v. Amparo,  961 F.2d  288,  292 (1st  Cir. 1992);          ______________     ______          United States v.  Hilton, 946 F.2d 955, 957 (1st  Cir. 1991).  We          _____________     ______          need go no further.                                        ____________________               4Although we do not reach the  merits of the decision not to          depart, we  note that the  lower court's factfinding  seems fully          supportable.  The psychiatrists all agreed on the sporadic nature          of Robles'  symptoms, and the tape  recordings adequately evinced          Robles' grasp of ongoing  events at the critical times.   Keeping          in mind  that a defendant who  seeks the unguent of   5K2.13 must          carry the devoir  of persuasion  as to the  appropriateness of  a          downward   departure  based   on  significantly   reduced  mental          capacity,  it is  surpassingly  difficult  to second-guess  Judge          Laffitte's   assessment.  See,  e.g.,  United  States  v.  Nu ez-                                    ___   ____   ______________      ______          Rodriguez, 92  F.3d 14, 24-25 (1st Cir. 1996) (affirming district          _________          court's refusal  to depart downward based  on diminished capacity          despite a  previous  diagnosis of  schizophrenia; district  court          found that,  at  the  time  of the  crime,  defendant's  behavior          demonstrated   a   cognizance   "inconsistent   with   diminished          capacity").                                          10                    That portion  of the defendant's appeal  which purports                    That portion  of the defendant's appeal  which purports                    _______________________________________________________          to  challenge the district court's  refusal to depart downward is          to  challenge the district court's  refusal to depart downward is          _________________________________________________________________          dismissed for want of appellate jurisdiction.  The judgment below          dismissed for want of appellate jurisdiction.  The judgment below          _____________________________________________  __________________          is  affirmed.   The case  is remitted to  the district  court for          is  affirmed.   The case  is remitted to  the district  court for          ____________    _________________________________________________          further proceedings in respect to footnote 2 of this opinion.          further proceedings in respect to footnote 2 of this opinion.          ____________________________________________________________                                          11
