                                                                                                                           Opinions of the United
2001 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


6-15-2001

United States v. Reynoso
Precedential or Non-Precedential:

Docket 00-2230




Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2001

Recommended Citation
"United States v. Reynoso" (2001). 2001 Decisions. Paper 130.
http://digitalcommons.law.villanova.edu/thirdcircuit_2001/130


This decision is brought to you for free and open access by the Opinions of the United States Court of Appeals for the Third Circuit at Villanova
University School of Law Digital Repository. It has been accepted for inclusion in 2001 Decisions by an authorized administrator of Villanova
University School of Law Digital Repository. For more information, please contact Benjamin.Carlson@law.villanova.edu.
Filed June 15, 2001

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT

No. 00-2230

UNITED STATES OF AMERICA

v.

WANDY REYNOSO, Appellant

On Appeal From the United States District Court
For the Eastern District of Pennsylvania
(D.C. Crim. No. 97-cr-00380-1)
District Judge: Honorable Stewart Dalzell

Argued: March 9, 2001

Before: BECKER, Chief Judge, McKEE, and STAPLETON,
Circuit Judges.

(Filed: June 15, 2001)

       ROCCO C. CIPPARONE, JR.,
        ESQUIRE (ARGUED)
       203-205 Black Horse Pike
       Haddon Heights, NJ 08035

        Counsel for Appellant
       MICHAEL L. LEVY, ESQUIRE
       United States Attorney
       ROBERT A. ZAUZMER, ESQUIRE
       Assistant United States Attorney
       Chief of Appeals
       ALICIA S. RESNICOFF, ESQUIRE
        (ARGUED)
       Assistant United States Attorney
       615 Chestnut Street, Suite 1250
       Philadelphia, PA 19106

        Counsel for Appellee

OPINION OF THE COURT

BECKER, Chief Judge.

This appeal by defendant Wandy Reynoso pr esents a
question of sentencing procedure. Reynoso pled guilty to
conspiracy to distribute cocaine and to possession of
cocaine with intent to distribute. Without af fording pre-
hearing notice to either Reynoso or the Gover nment, the
District Court appears to have sentenced Reynoso based in
part on information that it learned during an earlier
criminal trial in which Reynoso was not involved. Some of
the information upon which the court r elied was not
contained in either Reynoso's Presentence Investigation
Report (PSI), or the Government's Sentencing
Memorandum, nor was it brought out through Reynoso's
testimony at the sentencing hearing.

Reynoso contends that the District Court was r equired to
give him advance notice that he would be sentenced based,
even in part, on information other than that contained in
his PSI, and he submits that this error pr ejudiced him by
affecting the District Court's judgment as to whether his
sentencing range could be enhanced on the gr ounds that
he was an "organizer, leader , manager, or supervisor" within
the meaning of Section 3B1.1 of the United States
Sentencing Guidelines. Because Reynoso never raised this
claim before the District Court, we review only for plain
error. We may therefor e set aside Reynoso's sentence only

                               2
if: (1) the District Court erred; (2) the court's error was clear
or obvious; (3) Reynoso can show that the err or affected his
substantial rights, i.e., that it prejudiced him; and (4) not
correcting the error would seriously impair the fairness,
integrity, or reputation of a judicial pr oceeding.

Following both Supreme Court jurisprudence and our
own, we hold that before a sentencing court may rely on
testimonial or other evidence from an earlier proceeding, it
must afford fair notice to both defense counsel and the
Government that it plans to do so. The court must identify
the specific evidence upon which it expects to r ely and the
purposes for which it intends to consider the evidence, and
the notice must be provided sufficiently in advance so as to
ensure that counsel for both sides have a r ealistic
opportunity to obtain and review the relevant transcripts
and to prepare a response ther eto. Because the District
Court did not take these steps, we agree with Reynoso that
it erred in sentencing him, thus meeting thefirst plain
error requirement.

Nevertheless, we decline to set aside Reynoso's sentence
because he has not met his burden of showing that the
error affected his substantial rights. The District Court was
unquestionably entitled to consider the testimony fr om the
earlier trial in sentencing Reynoso; the only err or resulted
from the lack of notice. The question is not, therefore,
whether Reynoso's sentence would have been dif ferent had
the court not considered the additional evidence; instead,
Reynoso must show that the District Court would have
imposed a lesser sentence had defense counsel been given
the required notice. Because Reynoso has failed to point
out any way in which his lawyer could have or would have
rebutted or responded to the evidence fr om the prior
proceeding had counsel been affor ded advance notice, we
hold that Reynoso has failed to meet his bur den of showing
prejudice. In light of this conclusion, we need not decide
whether the error in this case was "clear" or "obvious" or
whether failing to correct it would seriously impair the
fairness, integrity, or reputation of a judicial proceeding.

                               3
I.

A.

In 1997, Nestora "Nettie" Salcedo and Juan Medina
contacted the Drug Enforcement Administration (DEA), and
offered to provide information regarding individuals
involved in cocaine trafficking. The ensuing investigation
focused on three men: Reynoso, Gregorio Espinal Mercado,
and Juan Gonzalez. Starting on June 10, 1997, Salcedo
and Medina had numerous telephone conversations with
Reynoso and Mercado regarding the pur chase of a large
amount of cocaine. These calls were recor ded by DEA
agents. A controlled buy was arranged, and scheduled for
June 20 in Philadelphia. The buyer was to be Miguel Morel,
another DEA informant.

On that day, Reynoso, Mercado, and Gonzalez met with
Salcedo and Medina in New York City. Reynoso informed
Salcedo and Medina that Gonzalez was going to drive the
car containing the drugs to Philadelphia, while the rest of
them would take another car. Because Gonzalez did not
know the way, Reynoso explained that Gonzalez would be
following them. The convoy departed at approximately 5
p.m.

Around 6:30 p.m., Reynoso called Morel and told him to
go to a hotel parking lot. This conversation was monitored
by a DEA agent, who arranged to have law enfor cement
personnel on the scene. The convoy eventually arrived, but
Reynoso informed Morel that he did not want to conduct
the transaction in the parking lot. After they agr eed to do
the deal at a nearby apartment, Reynoso and the others got
back into their cars and began to leave. They wer e arrested
at that point. Law enforcement agents eventually found
slightly over two kilograms of cocaine in the car driven by
Gonzalez.

B.

Reynoso, Mercado, and Gonzalez were indicted in
connection with these events. Reynoso and Mer cado
jumped bail, and Mercado has never been captur ed.

                                4
Gonzalez was tried and convicted in the United States
District Court for the Eastern District of Pennsylvania, and
we affirmed his conviction on appeal. Reynoso was
eventually apprehended in the New York City area and
returned to Philadelphia. On December 22, 1999 he pled
guilty before the same judge who had pr esided over the
Gonzalez trial to one count of conspiracy to distribute (and
to possess with intent to distribute) more than 500 grams
of cocaine, in violation of 21 U.S.C. S 846, and one count of
possession with intent to distribute more than 500 grams
of cocaine, in violation of 21 U.S.C. S 841(a)(1).

The Probation Officer then prepar ed Reynoso's PSI. In its
Sentencing Memorandum, the Government objected to two
portions of the PSI. First, the Government submitted that
the Probation Officer had erred by notfinding Reynoso
eligible for a two-step Offense Level enhancement as "an
organizer, leader, manager , or supervisor" of criminal
activity pursuant to U.S.S.G. S 3B1.1(c). 1 Second, based on
its claim that Reynoso had been an organizer , leader,
manager, or supervisor, the Gover nment submitted that
Reynoso was ineligible for a two-step Offense Level
reduction pursuant to the "safety valve" contained in
U.S.S.G. S 2D1.1(b)(6).2 In support of its assertions, the
_________________________________________________________________

1. Section 3B1.1(c) provides for a two level increase "[i]f the defendant
was an organizer, leader, manager, or supervisor in any criminal activity
other than that described in (a) or (b)." Sections 3B1.1(a) and (b) apply
only if the "criminal activity . . . involvedfive or more participants or
was
otherwise extensive."

2. Section 2D1.1(b)(6) provides for a two-level reduction if the
defendant's
Offense Level would otherwise be 26 or gr eater and if the defendant
meets the criteria listed in U.S.S.G. S 5C1.2. Section 5C1.2 applies if

       (1) the defendant does not have more than 1 criminal history point,
       as determined under the sentencing guidelines;

       (2) the defendant did not use violence or cr edible threats of
       violence or possess a firearm or other dangerous weapon (or
       induce another participant to do so) in connection with the
       offense;

       (3) the offense did not result in death or serious bodily injury to
       any person;

                               5
Government attached eight exhibits: the handwritten notes

of an interview that an Assistant United States Attorney
had conducted of Gonzalez, and transcripts of seven

telephone conversations between Reynoso and DEA
informants. Reynoso sought downward departures on a

number of grounds, but did not otherwise object to the PSI.

Reynoso was sentenced on July 27, 2000. Defense
counsel acknowledged at the start of the hearing that he

had reviewed the PSI and the Government's Sentencing
Memorandum and accompanying exhibits. After hearing

testimony from Reynoso and oral argument from counsel,
the District Court found that Reynoso had been "an

organizer, leader, manager , or supervisor" within the
meaning of the Guidelines. Accordingly, the court decided
that a two-level increase under S 3B1.1(c) was warranted,

and noted that, as a result, Reynoso was ineligible for a
two-level decrease under S 2D1.1(b)(6). These findings set

Reynoso's Offense Level at 29, which, in conjunction with
his Criminal History Category of I, created a sentencing
range of 87 to 108 months. See U.S.S.G. Ch. 5 Pt. A. Had

Reynoso not received the organizer , leader, manager, or
supervisor enhancement and thus been deemed eligible for

the two-level "safety valve" reduction, his Offense Level
would have been 25 and his sentencing range would have
been between 57 and 71 months. See id. The District Court
_________________________________________________________________

       (4) the defendant was not an organizer , leader, manager, or
       supervisor of others in the offense, as determined under the
       sentencing guidelines and was not engaged in a continuing
       criminal enterprise, as defined in 21 U.S.C. S 848; and

       (5) not later than the time of the sentencing hearing, the
defendant
       has truthfully provided to the Government all information and
       evidence the defendant has concerning the of fense or offenses
       that were part of the same course of conduct or of a common
       scheme or plan . . . .

(emphasis added). The Government does not dispute that Reynoso met
all but the fourth requirement.
6
eventually sentenced Reynoso to 90 months in prison, and
he timely appealed that sentence.3

II.

Reynoso contends that in sentencing him the District
Court relied in part on evidence that it had heard during
the Gonzalez trial, and that the court's failur e to give him
prior warning of its plans to do so was err or. To determine
whether the first half of Reynoso's claim is true, we must
carefully review the sentencing transcripts. The District
Court indisputably consulted its personal notes fr om the
Gonzalez trial in preparing for Reynoso's sentencing
hearing. After dealing with some background matters, the
court reported that it had read the Gover nment's
Sentencing Memorandum, and stated: "I went back and
pulled my file on Juan Gonzalez, reviewed my own notes. I
didn't read the transcripts again. I looked at my notes, of
course, the Gonzalez conviction was affirmed by the Court
of Appeals."

The District Court also made several statements during
the sentencing hearing that implied that it was r elying on
information that it recalled from the Gonzalez trial, and
that some of this information had not been r eflected in
Reynoso's PSI, the exhibits attached to the Gover nment's
Sentencing Memorandum, or Reynoso's testimony at the
sentencing hearing. After remarking that the transcripts
submitted by the Government fairly characterized the
evidence that it had heard during the Gonzalez trial, the
court stated that "[t]here was also a good deal more that
[the Government] did not cite on this," i.e., whether
Reynoso had been an organizer, leader , manager, or
supervisor. Later, in response to defense counsel's
argument that the Probation Officer had determined that
Reynoso had not been an organizer , leader, manager, or
supervisor, the court rejoined: "The Probation Department
Officer, I don't believe sat through the Gonzalez case
either."
_________________________________________________________________

3. The District Court had jurisdiction pursuant to 18 U.S.C. S 3231. We
have appellate jurisdiction under 28 U.S.C. S 1291 and 18 U.S.C.
S 3742(a).

                               7
The strongest indication that the District Court was
relying on its personal recollections fr om the Gonzalez trial
came as the court pronounced sentence. The court stated:

       As I said at the beginning of this, I did have the
       advantage of sitting through the [Gonzalez] trial and
       indeed the Starks hearing and so forth, and became
       quite familiar with the transcripts. And one of the
       things that was notable about the entire pr ocess was
       both the testimony of Nestora Salcedo, Nettie and in the
       tapes themselves was the centrality of Mr. Reynoso and
       the very matter of fact business like approach in all the
       conversations about this, when obviously he didn't
       know he was being taped. Of course, his statement
       now, he is puffing, this is braggadocio, it seems an
       invitation to visit never, never land, that I won't take.

(emphasis added).4 Having r eviewed the transcripts, we
agree with Reynoso that in sentencing him, the District
Court appears to have relied in part on infor mation that it
remembered from the Gonzalez trial, and that some of that
information had not been included in Reynoso's PSI or the
Government's Sentencing Memorandum or cover ed during
Reynoso's testimony at the sentencing hearing.

III.

Reynoso contends that his sentence must be vacated
because the District Court sentenced him based on its
recollections from the Gonzalez trial without affording him
a meaningful opportunity "to rebut [that] evidence or
generally cast doubt upon its reliability." United States v.
Linnear, 40 F.3d 215, 219 (1st Cir . 1994) (quotation marks
and citations omitted). Reynoso's brief primarily
characterizes this as a due process argument, and a
_________________________________________________________________

4. As noted previously, the exhibits attached to the Government's
Sentencing Memorandum consisted primarily of transcripts of telephone
conversations between Reynoso and DEA informants. The Government
argued that these conversations showed the Reynoso had been in a
supervisory position with respect to Gonzalez. At sentencing, Reynoso
contended that he had simply been attempting to convince the people to
whom he had been talking that he was more significant than he really
was.

                               8
defendant unquestionably has a due process right not to be
sentenced based on inaccurate information. See, e.g.,
United States v. Nappi, 243 F.3d 758, 763 (3d Cir. 2001).
Neither the Supreme Court nor this one have held that the
Due Process Clause entitles a defendant to advance notice
of the information upon which he or she will be sentenced
or to comment meaningfully on that evidence. Courts have,
however, found such rights created by Federal Rule of
Criminal Procedure 32(c)(1)--which r equires that a
sentencing court "afford counsel for the defendant and for
the Government an opportunity to comment on . . . [all]
matters relating to the appropriate sentence." See Burns v.
United States, 501 U.S. 129 (1991); Nappi , 243 F.3d at 763.
We will therefore decide this case based on Rule 32.

Our conclusion that the District Court's actions in this
case did not comport with Rule 32(c)(1) is compelled by
Burns and Nappi. In Bur ns, a district court had departed
upward on a basis not mentioned in either the defendant's
PSI or the Government's pre-sentencing submissions.
Relying on Rule 32, the Supreme Court held that a
sentencing court considering such a step must give both
sides advance notice of its intentions and ensur e that the
defendant has a meaningful opportunity to comment on the
propriety of the contemplated departure. See 501 U.S. at
138-39. Though acknowledging that the express terms of
the Rule contain no such requirement, the Court reasoned
that pre-sentencing notice was necessary to pr otect a
defendant's right to comment meaningfully on a matter
related to the imposition of an appropriate sentence, and to
ensure a "focused, adversarial resolution of the legal and
factual issues relevant to fixing Guidelines sentencing." Id.
at 136-37.

In Nappi, we held that a district court had violated Rule
32 by consulting and relying upon a PSI that had been
prepared on the defendant in an earlier state court case
without giving the defendant or the Government advance
notice of its plans to do so. See 243 F .3d at 768. Observing
that the logic employed in Burns applied with equal force to
the situation before us, we held that befor e a district court
may sentence a defendant based in part on infor mation
contained in a document other than the defendant's federal

                               9
PSI, the court must ensure that the defendant has been
afforded "a meaningful opportunity to address the
information" contained in the other document. Id. at 764.
To this end, we held that

       where . . . counsel are faced with having to review and
       address the contents of an additional document on
       which the Court intends to rely at sentencing, a
       meaningful opportunity to comment requir es the Court
       . . . to provide a copy of the document to counsel for
       the defendant and the government within a sufficient
       time prior to the sentencing hearing to affor d them
       with a meaningful opportunity to comment on it at
       sentencing and, depending on the document, pr epare a
       response or contest it.

Id.

The reasoning employed in Burns and Nappi applies fully
to the situation before us. Were a court permitted to impose
a sentence based in part on testimonial or other evidence
from another proceeding not involving the defendant
without giving the defendant and the Government advance
notice, the defendant's right to comment meaningfully on
all matters relevant to sentencing would be seriously
compromised. Further, a lack of notice in such situations
would significantly undermine the ability of both defense
counsel and prosecutors to perfor m fully their adversarial,
truth-testing roles during the sentencing hearing.

There is an additional reason for r equiring specific notice
when a sentencing court expects to rely on information
from another trial: the need to preserve the ability of
appellate courts to review those sentences. Although "the
scope of what a trial court may consider in deter mining an
appropriate sentence is breathtakingly br oad," United
States v. Simmonds, 235 F.3d 826, 837 (3d Cir. 2000), and
though we must accept a sentencing court's factual
findings unless they are clearly erroneous, see United
States v. Reyes, 930 F.2d 310, 315 (3d Cir. 1991), we still
have an obligation to ensure that those findings are
supported by the evidence. Were a district court to rely on
evidence from another proceeding without specifying the
evidence upon which it was basing its findings, an appellate

                               10
court's task of determining whether the district court's
findings were supported by the evidence would become
difficult, if not impossible.

We therefore hold that befor e a sentencing court may rely
on testimonial or other evidence from another proceeding,
the court must notify the defendant and the Gover nment of
its intent to do so and must identify with particularity the
evidence upon which it expects to rely and for what
purpose. For example, an appropriate notice would state
that the court plans to rely upon the testimony of witnesses
X and Y from the Z case in determining whether the
defendant is eligible for a particular enhancement or
reduction under the Guidelines, or wher e within a given
Guideline range the defendant should be sentenced.

A sentencing court wishing to rely upon evidence from
another proceeding must do two additional things. First, it
must ensure that the counsel for both sides can obtain the
relevant transcripts. Although we do not suggest that
counsel before us was entitled to inspect the court's
personal notes, we observe that it may be helpful in cases
like this for the court to read the relevant portions of its
notes into the record. Second, the court must give the
required notice sufficiently far in advance so as to ensure
that counsel have a meaningful opportunity to r eview the
transcripts (or continue the sentencing so that they can do
so), and, when appropriate, to formulate a response. As in
Burns and Nappi, we decline to establish a hard-and-fast
rule as to how much advance notice is requir ed; the answer
will vary from case to case, depending on the complexity of
the sentencing issue in dispute and the volume of
additional material upon which the court intends to rely.
Because the District Court did not comply with these
requirements in sentencing Reynoso, we hold that it erred.

IV.

As we noted earlier, Reynoso did not object during the
sentencing hearing or otherwise raise this claim before the
District Court. Consequently, we review only for plain error.
See United States v. Nappi, 243 F.3d 758, 760 (3d Cir.
2001). Following the Supreme Court's teachings in United

                               11
States v. Olano, 507 U.S. 725 (1993), we may thus set aside
Reynoso's sentence only if: (1) the District Court erred; (2)
its error was plain, i.e., the error was"clear" or "obvious;"
(3) the error "affected [Reynoso's] substantial rights;" and
(4) the error "seriously affect[ed] the fairness, integrity, or
public reputation of judicial proceedings." Id. at 732, 734.

Even though the District Court erred, Reynoso cannot
obtain relief without showing that the err or affected his
substantial rights. We undertake what is essentially a
harmless error analysis, except that Reynoso bears the
burden of showing that he was prejudiced by the error
rather than the Government having the obligation to show
that he was not. See id. at 734.5 The dispositive question is
whether Reynoso has shown that the error "af fected the
outcome of the district court proceedings." Id.

In Nappi we emphasized the importance of car efully
delineating the scope of a particular error before conducting
an inquiry as to whether it prejudiced the defendant. There
the district court had violated Rule 32(c)(1) by consulting
and relying in part on a state PSI that had not been turned
over to counsel for both sides prior to the sentencing
hearing. We wrote:

       [I]t is important to keep in mind that the District Court
       could have relied on the state PSI if it had complied
       with Rule 32(c)(1). All the Court was requir ed to do was
       to disclose the state PSI to counsel prior to the
       sentencing hearing and to afford counsel an
       opportunity to comment on it before pronouncing its
       sentence. Thus, the relevant prejudice inquiry is
       whether, and how, defense counsel could have rebutted
       the contents of the report, and whether the Court's
       sentencing determinations would have been dif ferent if
       counsel had been given the opportunity to do so; it is
       not whether the Court would have imposed a lighter
_________________________________________________________________

5. Reynoso suggests that the error her e was "structural" in nature, and
thus not subject to harmless-error type analysis. See Neder v. United
States, 527 U.S. 1, 7-8 (1999) (discussing the concept of structural
error). He is mistaken. See Nappi, 243 F.3d at 770 (holding that
violations of a defendant's right to advance notice of the information
upon which he or she is to be sentenced do not cr eate structural error).

                               12
       sentence . . . in the absence of consideration of the
       state PSI.

Nappi, 243 F.3d at 771 n.12.

The same is true here. The District Court was
unquestionably entitled to rely upon evidence from the
Gonzalez trial in sentencing Reynoso. See, e.g., United
States v. Simmonds, 235 F.3d 826, 837 (3d Cir. 2000). The
question is not, therefore, as Reynoso seems to assume,
whether the court could have or would have found him
eligible for the organizer, leader , manager, or supervisor
enhancement had it relied only upon Reynoso's PSI, the
materials attached to the Government's Sentencing
Memorandum, and Reynoso's testimony at the sentencing
hearing. Instead, the question is whether Reynoso would
have been found eligible for that enhancement had the
District Court given counsel prior warning that it would be
considering evidence from the Gonzalez trial and afforded
defense counsel sufficient time to mount a meaningful
challenge to that evidence.

The District Court's statements at sentencing make
reasonably clear that the evidence from the Gonzalez trial
upon which it relied was the testimony of Nestora Salcedo.
See supra p. 9. We conclude that Reynoso has failed to
show prejudice because his appellate brief makes no
attempt to show that--given sufficient notice and ample
time to prepare--his trial lawyer might have been able to
refute or minimize the impact of Salcedo's testimony. We
cannot presume prejudice--Reynoso must prove it. See
Nappi, 243 F.3d at 770 ("[D]efense counsel has not provided
any indication as to how, if given the proper notice and
opportunity to comment, he could have challenged the
information in the report in a manner that would have led
the District Court to impose a lesser sentence within the
Guideline range. Importantly, defense counsel has made no
suggestion that the information in the r eport was
inaccurate or false, or that the Court mischaracterized any
of the information it cited from the state PSI."); Simmonds,
235 F.3d at 837 ("Simmonds does not contend that the
information in his PSI or the PSI's of his co-defendants
[which the District Court had consulted in sentencing him]
was unreliable or untrustworthy."); United States v.

                               13
Knobloch, 131 F.3d 366, 371 (3d Cir . 1997) ("Appellate
counsel has had ample opportunity since the sentencing
hearing to review [the testimony of the witness from an
earlier proceeding upon which the court had r elied in
imposing sentence] and articulate some basis for believing
it would have benefitted Knobloch in some way had the
district court, sua sponte, order ed a continuance of the
proceedings to afford defense counsel an opportunity for
further proceedings. No relevant theory of prejudice has
been advanced in the briefing before us.").

In view of the inability of Reynoso's appellate counsel to
suggest something that trial counsel could have said or
done had the proper notice been affor ded, he has failed to
meet his burden of showing that the District Court's error
affected his substantial rights. As a r esult, we need not
decide whether the error was plain or whether it seriously
affected the fairness, integrity, or public reputation of
judicial proceedings.

The judgment of the District Court will be affir med.

A True Copy:
Teste:

       Clerk of the United States Court of Appeals
       for the Third Circuit

                                14
