
USCA1 Opinion

	




                            UNITED STATES COURT OF APPEALS                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                FOR THE FIRST CIRCUIT                                 ____________________          No. 95-1919                                    UNITED STATES,                                      Appellee,                                          v.                                 ANH VAN, A/K/A ANDY,                                Defendant, Appellant.                                 ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                          FOR THE DISTRICT OF MASSACHUSETTS                   [Hon. Nathaniel M. Gorton, U.S. District Judge]                                              ___________________                                 ____________________                                        Before                                Boudin, Circuit Judge,                                        _____________                            Bownes, Senior Circuit Judge,                                    ____________________                              and Stahl, Circuit Judge.                                         _____________                                 ____________________               Edward P. Ryan, Jr., with whom O'Connor & Ryan, P.C. was on               ___________________            _____________________          brief for appellant.               Michael J. Pelgro, Assistant United States Attorney,               _________________          Organized Crime Drug Enforcement Task Force, with whom Donald K.                                                                 _________          Stern, United States Attorney, was on brief for appellee.          _____                                 ____________________                                    June 18, 1996                                 ____________________                      Per Curiam.  Anh Van pled guilty to conspiracy to                      Per Curiam.                      __________            deal unlawfully in firearms, 18 U.S.C.   371, unlawful            dealing in firearms, id.    922(a)(1), and six counts                                 ___            relating to his unlawful possession of firearms, id.                                                                ___            922(g)(1), 922(k); 26 U.S.C.   5861(d).  He appeals to            challenge a four-level increase imposed under the sentencing            guidelines on the ground that he was an organizer or leader            of a criminal activity that involved five or more criminally            responsible participants or was otherwise extensive.             U.S.S.G.   3B1.1(a).  Out of an abundance of caution, we are            retaining jurisdiction over the case and remanding for            findings to clarify the district court's basis for its            decision.                      Under the guideline, the defendant, in order to            qualify for the four-level adjustment, must have been an            organizer or leader of a criminal activity, and the criminal                                                        ___            activity must have involved five or more participants            (including the defendant) or have been "otherwise extensive."                                       __            U.S.S.G.   3B1.1(a).  Because the principal dispute in this            case concerns the scope rather than the status determination,            we limit ourselves to the facts pertaining to the scope of            the criminal activity.                      Briefly summarized, the undisputed facts in the            presentence report stated that Van sold six firearms to a            federal undercover agent over a period of a year.  Prior to                                         -2-                                          2            each sale, the agent contacted Van and asked to buy a            firearm.  Van made the delivery and collected the money for            one of the transactions, but sent others to complete the            other five.  The agent covertly recorded at least some of the            transactions.  The presentence report initially concluded            that five or more participants were involved in the            transactions.  Van did not dispute that a total of eight            individuals (in addition to himself) were at least present            for one or more of the transactions.                       Van did dispute whether some of these individuals            were shown to be criminally responsible participants; the            guideline provides that in order to impose the four-level            increase on the ground that the activity involved five or            more participants, four individuals other than the defendant            must be found to be criminally responsible.  U.S.S.G.              3B1.1, comment. (n.1).  The probation officer responded with            an addendum suggesting that the presence of the eight other            individuals would show the activity to have been otherwise            extensive, even if the criminal culpability of any four            individuals could not be proven.                      The district judge, after a sentencing hearing,            imposed the four-level increase and checked the box on the            judgment form indicating that he was adopting the findings of            the presentence report.  But the court did not make explicit            findings of its own, beyond the following statement at the                                         -3-                                          3            hearing:                      [T]he defendant, Anh Van, was an                      organizer or leader of a criminal                      activity that involved five or more                      participants or was otherwise extensive,                      and . . . therefore, a four-level                      increase is warranted. . . .                      The law governing the district court's obligation            and our own on review is well-settled and easily stated.  At            the time of sentencing, the court "shall state in open court            the reasons for its imposition of the particular sentence."             18 U.S.C.   3553(c).  This requires the court to make            "reasonably specific findings" and to "explain, generally,            how it computed the applicable guideline range."  United                                                              ______            States v. McDowell, 918 F.2d 1004, 1012 (1st Cir. 1990).  We            ______    ________            have found minimal compliance with section 3553(c) when we            could determine that the court relied on the presentence            report, and the presentence report provided a sufficient            basis for meaningful appellate review.  See United States v.                                                    ___ _____________            Cruz, 981 F.2d 613, 617-18 (1st Cir. 1992); United States v.            ____                                        _____________            Schultz, 970 F.2d 960, 963 n.7 (1st Cir. 1992), cert. denied,            _______                                         ____  ______            113 S. Ct. 1020 (1993); cf. United States v. Catano, 65 F.3d                                    __  _____________    ______            219, 230 (1st Cir. 1995); McDowell, 918 F.2d at 1011-12.  The                                      ________            government bears the burden of proving the facts material to            the application of the guidelines by a preponderance of the            evidence, and the requirements of Fed. R. Crim. P. 32,            dealing solely with fact findings, are somewhat more            demanding than the general directive of section 3553(c).                                          -4-                                          4            United States v. Osorio, 929 F.2d 753, 764 n.5 (1st Cir.            _____________    ______            1991).  Fed. R. Crim. P. 32 allows the court to adopt the            facts set forth in the presentence report "[e]xcept for any            unresolved objection" noted in the addendum submitted by the            probation officer as required by the rule.  Fed. R. Crim. P.            32(b)(6)(C), (D).  The court must resolve any outstanding            disputed facts or determine that they will not be taken into            account, and must append a written record of its findings and            determinations to the presentence report.  Fed. R. Crim. P.            32(c)(1).  Although explicit resolution of disputed material            facts is preferable, we have found that the court implicitly            resolved the facts when the court's statements and the            sentence imposed showed that the facts were decided in a            particular way.  See, e.g., Cruz, 981 F.2d at 618-19; United                             ___  ____  ____                      ______            States v. Wells Metal Finishing, Inc., 922 F.2d 54, 58 (1st            ______    ___________________________            Cir. 1991); cf., e.g., United States v. Geer, 923 F.2d 892,                        __   ____  _____________    ____            898 (1st Cir. 1991); United States v. Levy, 897 F.2d 596, 599                                 _____________    ____            (1st Cir. 1990).  In the absence of legal error, the district            court's ruling will be sustained so long as the information            upon which it relied is sufficient to support the findings            under a clearly erroneous standard.  United States v.                                                 _____________            Morillo, 8 F.3d 864, 872-73 (1st Cir. 1993).  Of course, we            _______            have to be able to determine what the district court found            and the basis for the findings to the extent necessary to            permit effective appellate review.  McDowell, 918 F.2d at                                                ________                                         -5-                                          5            1012.                      In this instance, what may have been a slip of the            tongue by the district court has complicated matters.  If the            district court had held squarely that the activity involved            four criminally responsible participants plus the defendant,            the court's findings would be adequate for us to conclude            that it implicitly resolved the material disputed facts.  As            to three of the other participants, Van does not dispute that            they were criminally responsible.  Two pled guilty to            firearms charges and a third (who was indicted but fled the            jurisdiction) was involved in transporting and handing over a            weapon to the government agent during a transaction arranged            by Van.  The principal remaining factual dispute concerns the            criminal culpability of a man referred to in the presentence            report as "Michael."                      The presentence report stated that Michael was            present in a car with Hieu Minh Nguyen, whose criminal            responsibility Van does not dispute, during a sale of heroin            and a gun to the government agent.  The agent purchased a            gram of heroin, then asked about the gun.  Nguyen said            something to Michael in Vietnamese; Michael then retrieved a            paper bag which contained a semiautomatic pistol, and the            agent purchased the weapon.  The agent said he would be            interested in purchasing more guns, and according to the            probation officer, Michael responded that he would contact                                         -6-                                          6            the agent as soon as he had more guns to sell.                       In his objections to the presentence report, Van            contended that transcripts of the tape of the conversation            showed that it was Nguyen, not Michael, who discussed the            procurement of more guns.  But Van does not dispute that            Michael retrieved the paper bag containing the gun and was            present during the transaction.  There is no finding by the            district court as to who made the statement, but it is not            clear that it matters because the district court could            rationally have found that Michael was more likely than not            criminally responsible even if he merely retrieved the            weapon.  Of course, in the abstract, it is possible that            Michael was an unknowing dupe who understood nothing of the            transaction and thought he was handing over a box of candy.             But the surrounding circumstances make this unlikely, and the            district court was certainly entitled to draw the inference            that Michael knowingly participated.  Cf. United States v.                                                  ___ _____________            Kirvan, 997 F.2d 963, 966-67 (1st Cir. 1993).            ______                      The difficulty here is that there is no clear            finding by the district judge that he found five criminally            responsible participants.  Although the judge checked the box            indicating he was adopting the presentence report's findings,            the cross-reference remains ambiguous because the addendum            does not explicitly state which ground the probation officer            adopted, saying alternatively that there were "at least nine                                         -7-                                          7            participants," but that even if there were not at least five            criminally responsible participants, the total of nine            persons involved would support an extensiveness finding.  The            district court added (or did not dispel) uncertainty by            phrasing its own finding in the disjunctive.  While there            might be reason to guess that the court meant to find there            were five criminally responsible participants, there is no            unequivocal finding.                      The problem is exacerbated to the extent that the            court may have relied upon the alternative ground that Van's            criminal activity was "otherwise extensive."  Again, given            the disjunctive, we are not even sure the district court made            the "otherwise extensive" finding, and the only circumstance            articulated in the presentence report as supporting such a            finding was that a total of nine individuals, whether            criminally responsible or not, were present during the six            transactions.  An "otherwise extensive" finding, however,            must be warranted by "the totality of the circumstances,            including not only the number of participants but also the            width, breadth, scope, complexity, and duration of the            scheme."  United States v. Dietz, 950 F.2d 50, 53 (1st Cir.                      _____________    _____            1991); see also United States v. Graciani, 61 F.3d 70, 76 n.7                   ___ ____ _____________    ________            (1st Cir. 1995).                      All this might not matter if the undisputed facts            required a finding either that Michael was a criminally            ________                                         -8-                                          8            responsible participant or that the activity was otherwise            extensive.  But even the government does not argue this in so            many words.  And such findings would require factual            inferences and characterizations as to which the district            court has considerable latitude.  Graciani, 61 F.3d at 75.                                               ________            Thus, we are hesitant to find that the district court was            compelled to impose the four-level increase and that the            omission of findings is harmless.                      Accordingly, we think the best solution, and one we            have used in previous cases, e.g., Geer, 923 F.2d at 898, is                                         ____  ____            to ask the district court to specify which of the two grounds            (five or more participants, otherwise extensive, or both) it            relied upon and to make brief findings, either by            incorporating pertinent portions of the presentence report or            otherwise, as to each ground relied upon.  Cf. Fed. R. Crim.                                                       ___            P. 32(c)(1).  The district court is requested to advise us of            its findings by supplemental order within 45 days.  When we            receive the findings, we will determine whether any further            briefing or proceeding is required.                      Determinations in connection with sentencing are an            odd hybrid in the law.  Based on a tradition of discretionary            sentencing, the burden of proof and other procedural            safeguards are rather relaxed in this realm.  See Nichols v.                                                          ___ _______            United States, 114 S. Ct. 1921, 1928 (1994); United States v.            _____________                                _____________            Tucker, 404 U.S. 443, 446 (1972).  On the other hand, the            ______                                         -9-                                          9            mandatory character of the guidelines (subject to departures)            and the significant sentences they entail make guideline            determinations considerably important to defendants, as            reflected in the requirements of 18 U.S.C.   3553(c) and Fed.            R. Crim. P. 32.  Our judgment as to whether an error or            ambiguity is harmless has to take account of both of these            somewhat divergent attitudes toward sentencing.                      In this instance, we think that the ambiguity in            the findings is patent (even though it may rest on a slip of            the tongue) and is not unequivocally harmless.  Given the            stakes for the defendant and the simplicity of obtaining a            clarification, we think the limited remand order is            appropriate.  If the district court concludes on            reexamination that the four-level increase should not be            applied, it can so state in its supplemental findings and we            will remand the case for resentencing.  This court therefore            retains jurisdiction but remands for supplemental findings.            ____________________     _______                      It is so ordered.                      ________________                                         -10-                                          10
