          United States Court of Appeals
                        For the First Circuit

No. 03-1104

                            UNITED STATES,

                              Appellant,

                                  v.

       JORGE CINTRÓN-FERNÁNDEZ, a/k/a JORGE CINTRÓN, JR.,

                         Defendant, Appellee.


          APPEAL FROM THE UNITED STATES DISTRICT COURT

                   FOR THE DISTRICT OF PUERTO RICO

        [Hon. Juan M. Pérez-Giménez, U.S. District Judge]


                                Before

                         Howard, Circuit Judge,
              Campbell and Stahl, Senior Circuit Judges.



     Ara B. Gershengorn, United States Department of Justice, with
whom H.S. Garcia, United States Attorney, Robert D. McCallum,
Assistant Attorney General, Kathleen A. Kane and Michael S. Raab,
Civil Division, United States Department of Justice, were on brief
for appellant.
     Luis F. Camacho for appellee.



                           February 3, 2004
            CAMPBELL, Senior Circuit Judge.              Defendant-Appellee,

Jorge    Cintron-Fernandez,    was    convicted     in     the   United   States

District Court for the District of Puerto Rico on his plea of

guilty to charges relating to the adulteration and misbranding of

frozen food products.     After determining the amount of consumer

loss, the court ruled that Cintron-Fernandez had a total offense

level of 12 and a criminal history category of I, which would

require a minimum sentence of ten months imprisonment under the

Sentencing Guidelines.    U.S.S.G. § 5A (Table).           The district court

sentenced    Cintron-Fernandez       to    five   months    imprisonment     but

substituted home confinement in lieu of incarceration for that

term.    The court also imposed three years of supervised release,

five months of which were to be served in accordance with the Home

Confinement Program.     The government appeals, arguing that the

district court imposed an illegal sentence. We vacate the sentence

and remand for resentencing.

                              I.   BACKGROUND

            "Because this appeal involves sentencing issues following

a guilty plea, we take the background facts from the presentence

report."    United States v. Brady, 168 F.3d 574, 576 (1st Cir.

1999).

            From August of 1991 until at least December of 1997,

Jocel Manufacturing Corporation ("Jocel") manufactured and sold

frozen desserts, including ones labeled "Caparra Ice Cream" and


                                     -2-
"Rico," to restaurants and wholesale and retail customers in Puerto

Rico.     During most of that period, Cintron-Fernandez's father,

Jorge Cintron-Renta, was the overall manager of Jocel, and Cintron-

Fernandez was Jocel's production manager with responsibility for

the production of food products.

            In   1991   and    1992,    the   United   States   Food   and   Drug

Administration     ("the      FDA")    warned   Cintron-Renta    and    Cintron-

Fernandez of the requirement that food labeled as "ice cream"

contain    not   less   than     ten    percent   milkfat.       21    C.F.R.   §

135.110(a)(2).      Notwithstanding this warning, Cintron-Renta and

Cintron-Fernandez continued to produce and sell Caparra ice cream

with less than ten percent milkfat, and they misled the FDA about

the true content and labeling of the product. Thus, while Cintron-

Renta promised the FDA that Jocel would revise its formula so that

its ice cream would contain at least ten percent milkfat, he and

Cintron-Fernandez instructed Jocel's employees to use a mixture of

coconut oil and milkfat for the "Caparra Ice Cream" base that

contained less than ten percent milkfat.           They packed this product

into containers with labels that failed to list coconut oil as an

ingredient.      Ultimately, Jocel sold "Caparra Ice Cream" to the

public without notifying customers that it contained less than ten

percent milkfat or that it contained coconut oil.                 This conduct

occurred over a period of at least 21 months and is estimated to

have resulted in a loss to consumers of at least $107,706.40.


                                        -3-
            On April 5, 2000, a federal grand jury indicted Cintron-

Fernandez, Cintron-Renta, and Jocel Manufacturing Corporation, for

conspiracy, adulteration of food, misbranding of food, and false,

fictitious, and fraudulent claims against the United States. After

discovery, Cintron-Fernandez entered into a plea agreement with the

United States in which he agreed to plead guilty to Counts One and

Six of the indictment and to adopt the government's version of the

facts.     Count One charged that he had unlawfully, knowingly,

wilfully, and intentionally combined and confederated with others

to cause, with the intent to defraud or mislead, food labeled as

"ice cream" to be adulterated and misbranded while the food was

held for sale, in violation of 21 U.S.C. § 331(k), and that he had

knowingly executed a scheme to defraud and obtain money by means of

materially       false    and   fraudulent      representations    and   promises

through the United States Postal Service, in violation of 18 U.S.C.

§ 1341, and all in violation of 18 U.S.C. § 371.             Count Six charged

that he had, with the intent to defraud and mislead, misbranded

"ice    cream"    while    held   for    sale    in   interstate   commerce,   in

violation of 21 U.S.C. §§ 331(k) and 333(a)(2).

             In   accordance      with   the    agreement,   Cintron-Fernandez

entered a guilty plea. A presentence report was prepared and given

to the parties, which calculated consumer loss to be $107,706.40.

Cintron-Fernandez filed an objection to the amount of consumer

loss.    The district court referred the issue to Magistrate Judge


                                         -4-
Gustavo A. Gelphi, who, after an evidentiary hearing, concluded

that $107,706.40 was an appropriate figure.

             On   November   13,   2002,   the   district    court    held   a

sentencing hearing.     As Cintron-Fernandez had violated two closely

related counts, the district court grouped the two counts into a

combined offense level.      Applying the 1997 Sentencing Guidelines,1

the court determined that the Count One offenses were governed by

§ 2X1.1, which applies to conspiracies not covered by a specific

offense Guideline.      Rather than providing its own offense level, §

2X1.1(a) states that courts should apply the base offense level

from the Guideline for the substantive offense.             Accordingly, the

district court determined that both substantive offenses in Count

One   were   governed   by   §   2F1.1.2   The   district     court   further

determined that the Count Two sentences were also governed by §

2F1.1.3


      1
          As both parties agree that the 1997 Sentencing Guidelines
apply here, we apply the 1997 Sentencing Guidelines and, therefore,
need not determine whether applying the Guidelines in effect when
Cintron-Fernandez was sentenced would violate the Ex Post Facto
Clause. U.S.S.G. § 1B1.11; United States v. Prezioso, 989 F.2d 52,
53-54 (1st Cir. 1993).
      2
          Section 2F.1.1 applies to violations of 18 U.S.C. § 1341.
Section 2N2.1 applies to violations of 21 U.S.C. 331(k), but §
2N2.1(b) requires courts to apply § 2F1.1 instead of § 2N2.1 if the
offense involved fraud. Here, Cintron-Fernandez pled guilty to
violating 18 U.S.C. § 331(k) "with intent to defraud or mislead,"
so § 2F1.1 applies.
      3
          Section 2N2.1 applies to 21 U.S.C. §§ 331 and 333(a)(2),
but, as mentioned, § 2N2.1(b) requires courts to apply § 2F1.1 to
offenses involving fraud.

                                     -5-
           Based on § 2F1.1, the district court concluded that the

base offense level was six.      Since § 2F1.1 provides for increases

in the offense level according to the amount of loss resulting from

a crime if those losses are above $2,000, the district court, using

the   consumer   loss   figure   of    $107,706.40,   increased    Cintron-

Fernandez's total offense level six levels.        U.S.S.G. § 2F1.1b(1).

Accordingly,     it   assessed   Cintron-Fernandez's    total     guideline

sentence at twelve.4      The district court further determined that

Cintron-Fernandez had a criminal history category of I.

            Applying this offense level and criminal history to the

sentencing table, the district court then determined that the

applicable guideline imprisonment range was from ten to sixteen

months (Zone C) with a fine range of $3,000 to $30,000 plus a term

of supervised release of at least two but not more than three

years.    U.S.S.G. § 5A (Table).       The district court imposed a fine

of $3,000 for each of the two counts and stated that appellee was

to be:

            committed to the custody of the Bureau of
            Prisons to be imprisoned for a term of five
            months and pursuant to guideline [5C1.1(d)(2)]
            the Court will substitute one day of home
            confinement for one day of incarceration and
            said term of imprisonment is to be served
            concurrently as to counts one and six.      In
            other words, the Court, although it imposes a


      4
          Thereafter,     the district court added two levels for
planning pursuant to §    2F1.1(b)(2)(A), but it later subtracted two
levels for acceptance      of responsibility pursuant to § 3E1.1.
Accordingly, the total    offense level remained at twelve.

                                      -6-
            term of imprisonment of five months, which is
            at the lower end of the guideline range of
            ten, pursuant to guideline [5C1.1(e)(3)]
            substitutes one day of home detention for one
            day of imprisonment. Upon completion of said
            term of five months he shall be placed on
            supervisory release for a term of three years
            as to each count to be served concurrently
            under the following conditions . . . He shall
            be placed in home detention and comply with
            the conditions of the home confinement program
            for a period of five months.

When asked for clarification of the sentence by the government's

counsel, the district court explained:

            And that is a type of sentence that I impose
            when I am in Zone C at 12.            You are
            correct . . . [5C1.1(d)(2)] provides that if
            the Court must sentence the defendants to
            imprisonment provided that at least one half
            of   the  minimum   term   is   satisfied   by
            imprisonment.    I have imposed a term of
            imprisonment of five months as to each count
            concurrently then I move on to [5C1.1(e)(3)]
            which states that, that is the schedule of
            substitute punishment and I have substituted
            one day of home detention for one day of
            imprisonment so although he has been sentenced
            to a term of imprisonment as to each count,
            five months, it is half of the minimum of the
            guideline, nevertheless the Court substitutes
            one day of home confinement for one day of
            imprisonment.

The government objected, without avail, that the substitution

provision   of   §   5C1.1(e)   could    not   be   used   to   override   the

Guidelines' minimum sentence requirements.

            On November 20, 2002, the district court entered the

announced sentence.       The government filed a timely notice of

appeal.     Several months later, on April 13, 2003, under the


                                   -7-
jurisdiction of the Probation Office of the United States District

Court for the District of Puerto Rico, Cintron-Fernandez began

serving the five months of home detention associated with his

three-year   term   of   supervised   release,   wearing   an   electronic

monitoring device as required.        On September 11, 2003, his home

detention ended, the electronic monitoring device was removed, and

Cintron-Fernandez proceeded with the balance of his three-year term

of supervised release.

                             II.   ANALYSIS

             A.   Jurisdiction

          On appeal, the government argues that the district court,

in imposing a total of ten months of home confinement in lieu of

incarceration, failed to comply with the requirements of § 5C1.1 of

the Sentencing Guidelines, which requires that at least one-half of

the minimum term of imprisonment, here ten months, be satisfied by

imprisonment rather than by home detention.5


     5
          There is no dispute that the applicable sentencing range
in this case was ten to sixteen months, that this sentence falls
within Zone C of the Sentencing Guidelines, and that § 5C1.1 of the
Sentencing Guidelines governs Cintron-Fernandez's sentence.      As
discussed more fully later, the government argues that the district
court's sentence is illegal because it fails to satisfy the minimum
term required by § 5C1.1, which, it contends, requires that at
least half of a defendant's minimum term be satisfied by actual
imprisonment rather than home detention. As the applicable minimum
term is ten months, the government argues that Cintron-Fernandez's
sentence must include at least five months of actual imprisonment.
The district court's announced sentence here included two
components: first, an "imprisonment" component of five months to
be served under the aegis of the Bureau of Prisons which was,
however, reduced to home confinement (still, it appears, under the

                                   -8-
              Cintron-Fernandez argues that we lack jurisdiction to

consider the government's appeal because the district court --

rather than issuing a final order sentencing Cintron-Fernandez to

home detention in lieu of imprisonment -- simply gave to the Bureau

of Prisons a non-binding and non-reviewable "recommendation" that

Cintron-Fernandez's ordered five months imprisonment be served at

home.    United States v. Melendez, 279 F.3d 16, 18 (1st Cir. 2002)

(per curiam) (mere recommendation not reviewable order), cert.

denied, 535 U.S. 1120 (2002).       We see no merit to this argument, as

we   find     the   sentencing   order   to   have   been   both   final   and

reviewable.

              It is clear from the wording of the judgment itself, as

well as the judge's oral comments, that the judge intended Cintron-

Fernandez's specified term of "imprisonment" to consist of five

months   of    home   confinement   in   lieu   of   incarceration.        This

substitution was not stated as a mere recommendation.              Under the

heading "IMPRISONMENT," the written judgment provides,

              The defendant is hereby committed to the
              custody of the United States Bureau of Prisons
              to be committed for a total term of five (5)
              months as to each count, to be served
              concurrently with each other, pursuant to
              U.S.S.G. § 5C1.1(d)(2) the defendant will be
              placed in home confinement in lieu of


Bureau to administer); and, second, an additional five months of
home confinement as a condition of three years of supervisory
release. The district court evidently believed these two periods
of home confinement measured up to the minimum ten months
Guidelines requirement.

                                     -9-
              incarceration, one day of home confinement for
              one day of incarceration pursuant to U.S.S.G.
              § 5C1.1(e)(1)(3).

The language is mandatory -- "the defendant will be placed in home

confinement in lieu of incarceration."            Notably, the court did not

utilize   a      space     in     the   sentencing    form     earmarked      for

recommendations to the Bureau of Prisons.             There was no check by

the box provided for the court to indicate it was making a

recommendation, nor was any purported recommendation written in the

relevant space.

              The above is consistent with the district court's oral

directions during the sentencing hearing. In none of these did the

court suggest that the Bureau of Prisons could incarcerate Cintron-

Fernandez in one of its facilities in lieu of the directed home

confinement.

              As the judge's sentencing directions were unambiguous and

unequivocal, the court's intentions were clear.              See United States

v. Flynn, 49 F.3d 11, 13 (1st Cir. 1995) ("'The intent of the

sentencing court must guide any retrospective inquiry into the term

and nature of a sentence.'") (quoting United States v. Einspahr,

35 F.3d 505, 506 (10th Cir.), cert. denied, 513 U.S. 1009 (1994)).

Rather than a "recommendation," the district court imposed a

sentence of five months home detention in lieu of imprisonment

followed by three years of supervised release, five months of which

were   also    to   be   served   in    home   detention,   together   with   an


                                        -10-
assessment and fine.      Cf. United States v. Serafini, 233 F.3d 758,

778 (3d Cir. 2000) (concluding that order was non-reviewable

recommendation which stated, "The Court recommends that the Bureau

of Prisons designate the Catholic Social Services of Lackawanna

County Residential Program, Scranton, Pennsylvania, as the place

for service of this sentence,") (emphasis added).

              Cintron-Fernandez argues that since the court placed him

in the Bureau of Prisons' custody, any statement by the court as to

his   place    of   confinement   could    only   be   read   as   an   implicit

recommendation because the Bureau of Prisons alone has the power to

designate the place of imprisonment.              See 18 U.S.C. § 3621(b)

(stating, "The Bureau of Prisons shall designate the place of the

prisoner's imprisonment.").        But the fact that the district court

may have exceeded its own authority in ordering the Bureau to

substitute home confinement does not turn the district court's

order into a non-reviewable recommendation.            The Bureau of Prisons

apparently did not take Cintron-Fernandez into its custody at all

but rather elected to do nothing pending this appeal.                   Two days

after the sentence was entered, the Probation Office conducted an

initial interview with Cintron-Fernandez.               It then waited for

approximately five months, perhaps out of deference to the Bureau

of Prisons should the Bureau have wished to take Cintron-Fernandez

into its custody. During this period, Cintron-Fernandez telephoned

the Probation Office each month.           Finally, the Probation Office


                                    -11-
installed, in April, a home monitoring unit in Cintron-Fernandez's

home, monitored him for five months, and served as his primary

contact throughout this period of home detention.      This five-month

term of home detention apparently fulfilled the second portion of

the district court's order imposing home detention as a condition

of supervised release.     Cintron-Fernandez appears never to have

served the earlier term of home detention assigned under the label

of "IMPRISONMENT" to the jurisdiction of the Bureau of Prisons.

See supra at p. 8, n.5.   There is, moreover, no indication that the

Bureau of Prisons ever undertook to make a choice of its own

regarding    the   character   of    Cintron-Fernandez's   confinement.

According to 18 U.S.C. § 3621(b), the Bureau is supposed to choose

a "penal or correctional facility" and determine that the facility

meets enumerated minimum standards of health and habitability.6

Rather Cintron-Fernandez was simply left to serve a single five-

month term of home confinement as a condition of supervised release

under the aegis of the Probation Office.

            We conclude that while the district court's sentencing

order was in fact erroneous as hereinafter explained, it was in no




     6
          For present purposes, we need not reach the issue of
whether Cintron-Fernandez's home could ever qualify as a "penal or
correctional facility" under 18 U.S.C. § 3621(b). We note that
home detention is mentioned in § 5C1.1 of the Sentencing Guidelines
as a possible condition of supervised release, and, to our
knowledge, is nowhere statutorily described as a form of
imprisonment entrusted to the Bureau of Prisons.

                                    -12-
way a mere recommendation, and is both final and reviewable on

appeal.

           B.    The Legality of the Sentence

           The government argues that the district court's sentence

is illegal because it fails to satisfy the minimum term required by

§ 5C1.1 of the Sentencing Guidelines.           We agree.    We review de novo

the   district    court's   legal       interpretations     of    the   Sentencing

Guidelines.      United States v. Thiongo, 344 F.3d 55, 62 (1st Cir.

2003).

           Section 5C1.1 states as follows:

           (d) If the applicable guideline range is in
           Zone C of the Sentencing Table, the minimum
           term may be satisfied by --
           (1) a sentence of imprisonment; or
           (2) a sentence of imprisonment that includes a
           term of supervised release with a condition
           that substitutes community confinement or home
           detention according to the schedule in
           subsection (e), provided that at least one-
           half of the minimum term is satisfied by
           imprisonment.

As Cintron-Fernandez's sentence is within Zone C, § 5C1.1(d)

applies.   Accordingly, the minimum term of his sentence -- ten

months -- can be satisfied in two ways.             First, a sentence of ten

months imprisonment would satisfy the minimum term.                     U.S.S.G. §

5C1.1(d)(1).        Secondly,       a    sentence    that        substitutes   for

imprisonment home detention according to the substitution schedule

of § 5C1.1(e), provided that at least one-half of the minimum term

is satisfied by imprisonment, would satisfy the minimum term.


                                        -13-
U.S.S.G. § 5C1.1(d)(2).              Section 5C1.1(e) allows one day of home

detention or community confinement to be credited for one day of

imprisonment. Thus, if the court wished to impose the most lenient

legal minimum sentence against Cintron-Fernandez, it could have

sentenced him to five months imprisonment together with five months

of     home   detention       or     community     confinement.        U.S.S.G.   §§

5C1.1(d)(2) & (e).          Cintron-Fernandez's sentence must include at

least five months of imprisonment in order to satisfy the minimum

term.

              Here the court stated that it committed Cintron-Fernandez

"to the custody of the Bureau of Prisons to be imprisoned for a

term of       five   months."        But    immediately     thereafter    the   court

substituted five months of home detention in lieu of incarceration.

It then added three years of supervised release, five months of

which would also be served in home detention.                       Such a sentence

fails to meet the guideline requirement that "at least one half of

the minimum term [here ten months] is satisfied by imprisonment."

U.S.S.G. §§ 5C.1.1(d) & (e).            Rather, it provides for ten months of

home detention with no "imprisonment" at all.

              Cintron-Fernandez argues that the Guideline requirement

that    at    least    half     of    the     minimum   term   be    "satisfied    by

imprisonment" allows the "imprisonment" portion making up the half

term    to    itself   be     also     home    detention.      Under     this   view,




                                            -14-
"imprisonment" in § 5C1.1 can mean not only time served in prison

but time served in home detention or community confinement.

               Cintron-Fernandez's interpretation is without merit.           It

is clear from both the text and commentary of § 5C1.1 that, in the

context of § 5C1.1,7 the minimum half term of "imprisonment" cannot

be   satisfied     by    home   detention    or   by   community   confinement.

According to §§ 5C1.1(d) & (e), home detention and community

confinement       are    considered   as     "Substitute    Punishments"      for

imprisonment, not merely different forms of imprisonment itself.

See also United States v. Delloiacono, 900 F.2d 481, 484 n.7 (1st

Cir. 1991) (stating "Since November 1, 1989, 'home detention,'

which also requires confinement, has been an authorized substitute

for a term of imprisonment.").

               Section 5C1.1's commentary states "at least one half of

the minimum term specified in the guideline range must be satisfied

by imprisonment, and the remainder of the minimum term specified in

the guideline range must be satisfied by community confinement or

home       detention."     This   explanation     would    be   meaningless    if



       7
          Our interpretation of imprisonment does not necessarily
apply to provisions other than § 5C1.1. The commentary to § 1B1.1,
which governs general application of the Guidelines, states,
"Definitions of terms also may appear in other sections.      Such
definitions are not designed for general applicability; therefore,
their applicability to sections other than those expressly
referenced must be determined on a case by case basis." See also
United States v. Rasco, 963 F.2d 132, 137 (6th Cir. 1992) (stating
that the Guidelines caution against attempting to achieve
definitional coherence across numerous provisions).

                                      -15-
imprisonment meant the very same thing as home detention.                         See

United States v. Reccko, 151 F.3d 29, 32 (1st Cir. 1998) (stating

Guideline commentary is binding unless it violates federal law, is

inconsistent with Guidelines, or is based on plainly erroneous

reading of Guideline provision). That the two terms mean different

things is also shown by the example given in the commentary "that

satisfies    the   minimum   term     of   imprisonment        required    by     the

guideline range."       U.S.S.G. § 5C1.1, comment.        (n.4).       The example

specifies   that   "where    the    guideline     range   is    8-14    months,     a

sentence    of   four   months     imprisonment    followed      by    a   term    of

supervised release with a condition requiring four months community

confinement or home detention would satisfy the minimum term of

imprisonment required by the guideline range."                 Id.

            Cintron-Fernandez's proposed interpretation is also at

odds with the case law.          See, e.g., Serafini, 233 F.3d at 778

(stating community confinement cannot constitute imprisonment for

purposes of fulfilling the requirement that one-half of a split

sentence be satisfied by imprisonment under § 5C1.1); United States

v. Adler, 52 F.3d 20, 21 (2d Cir. 1995) (stating, "We agree with

the government that the district court's interpretation of Sections

5C2.1(d) and (e) is erroneous.               'Imprisonment' and 'community

confinement' are not synonyms . . . Moreover, as the Seventh and

Ninth Circuits have already concluded, Section 5C1.1(d), the almost

identically-worded successor to Section 5C2.1(d), clearly makes a


                                      -16-
distinction       between    imprisonment    and   community      confinement.")

(citations omitted); United States v. Jalili, 925 F.2d 889, 892

(6th Cir. 1991) (stating, "we read Guideline § 5C1.1 . . . to mean

that community confinement may be included as a condition during

the term of supervised release."). We decline, therefore, to adopt

Cintron-Fernandez's interpretation of § 5C1.1.

             It    follows    that   the   district     court's    sentence   was

erroneous insofar as it failed to require at least five months of

imprisonment together with the five months of home detention that

it imposed as a condition of the three year term of supervised

release.

             We reverse the judgment of the district court and remand

the   case   for    resentencing     in    accordance    with   the   Sentencing

Guidelines as herein interpreted and resolution of any related

issues.




                                      -17-
