
USCA1 Opinion

	




                            UNITED STATES COURT OF APPEALS                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                FOR THE FIRST CIRCUIT                              _________________________          No. 94-1806                              UNITED STATES OF AMERICA,                                      Appellant,                                          v.                                 FABIAN CARLOS MUNIZ,                                 Defendant, Appellee.                              _________________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                          FOR THE DISTRICT OF MASSACHUSETTS                   [Hon. Edward F. Harrington, U.S. District Judge]                                               ___________________                              _________________________                          Selya and Boudin, Circuit Judges,                                            ______________                             and Carter,* District Judge.                                          ______________                              _________________________               Geoffrey E. Hobart, Assistant  United States Attorney,  with               __________________          whom Donald K. Stern,  United States Attorney, was on  brief, for               _______________          the United States.               John C. Doherty for the appellee.               _______________                              _________________________                                    March 8, 1995                              _________________________          _______________          *Chief Judge,  U.S. District  Court  for the  District of  Maine,          sitting by designation.                    SELYA, Circuit Judge.   For better  or worse, the  days                    SELYA, Circuit Judge.                           _____________          are  long  since  past   when  federal  district  judges  wielded          virtually   unfettered   discretion   in    sentencing   criminal          defendants.   The sentencing  guidelines are controversial    but          they have the force of law and, therefore, command the allegiance          of  the courts.    Judges,  who  enforce  the  laws  when  others          transgress them,  must be  sensitive to their  own responsibility          not to  be seen as placing  themselves above the law.   This case          exemplifies the importance of that principle.          I.  THE ROAD TO ARREST          I.  THE ROAD TO ARREST                    Because  the  underlying  conviction  resulted  from  a          guilty plea, we draw  the facts from the uncontested  portions of          the   Presentence  Investigation  Report  (PSI  Report)  and  the          transcript of  the  sentencing hearing.1   See  United States  v.                                                     ___  _____________          Garcia,  954 F.2d 12, 14 (1st Cir. 1992); United States v. Dietz,          ______                                    _____________    _____          950 F.2d 50, 51 (1st Cir. 1991).                    All the events mentioned, including  court proceedings,          occurred in 1994 unless  otherwise specifically indicated.  Early          that year, agents of  the federal Drug Enforcement Administration          (DEA) arrested a married  couple, Omer and Camille Belle,  in the          course  of a narcotics investigation.   The Belles  soon began to          peal; they  told  the  federal agents  that  they  had  purchased          kilogram quantities  of  cocaine from  defendant-appellee  Fabian                                        ____________________               1In  this case,  much  of the  evidence  is beyond  hope  of          contradiction.    The   authorities  tape-recorded  the   various          telephone conversations  in which the defendant  participated and          fitted the hotel  room in  which the denouement  occurred with  a          video camera and a microphone.                                          2          Carlos Muniz on a  steady basis for  two years (most recently  in          December of 1993), and  that Muniz also had made similar sales to          at least two other individuals.                    The  Belles agreed  to cooperate  in a  sting operation          directed against  Muniz.   On  February 4,  Camille Belle  called          Muniz  and informed him that a friend was interested in acquiring          three  to  four kilograms  of cocaine.    Muniz replied  that the          quantity  was  "no problem"  and quoted  a  price of  $23,500 per          kilogram.  When  Camille sought reassurance that  the drugs would          be forthcoming, Muniz reiterated  that "as long as they  got [the          funds], it's not a problem."                    Later that  evening, Omer  Belle called and  told Muniz          that  the would-be  buyer wanted  to purchase  five  kilograms of          cocaine.  Muniz scheduled the transaction for  the following day,          but  voiced some uncertainty about whether he could fill the full          order in  one fell swoop, telling Omer:   "I don't know  if I can          get . .  . as many sets  for tomorrow."   Asked how many sets  (a          code word for kilograms of  cocaine) he definitely could provide,          and when,  Muniz replied:  "Two  or three maybe and  the rest for          the next  day."  At a subsequent  point in the conversation, Omer          again inquired  about how many  kilograms would be  delivered the          following day, and Muniz responded, "Two . . . or  three maybe, I          don't know, I'm not sure."   The two men agreed to meet the  next          afternoon, February  5, at  an inn in  Sturbridge, Massachusetts.          Muniz reaffirmed that although five sets might not be immediately          available,  he  would  fill  the  entire  order  with  reasonable                                          3          celerity:  "It could be two or three [kilograms] tomorrow and  do          the rest the next day."                    On  February 5, the men  spoke again by  telephone.  In          this conversation,  Muniz emphasized that the  customer needed to          bring  enough  money to  pay  for  as many  as  three  sets.   At          approximately  8:00   p.m.  on  the   same  date,  Muniz   and  a          confederate, Juan Carlos Villar, met Omer  Belle at the appointed          place.   The  trio proceeded  to a  room where  the customer  (in          reality an undercover  agent) waited.  Once  inside, Muniz handed          the  agent two  kilograms of  cocaine.   When the agent  said, "I          thought  it was  three,"  Muniz replied,  "No,  two today,  three          tomorrow," and volunteered:   "If you want three tomorrow,  I can          bring  three   tomorrow,  no  problem."     Following  a  further          discussion regarding  prices  and possible  future  transactions,          Muniz again  assured the  agent that  his  sources had  "promised          three  for tomorrow, no problem."  At that point, law enforcement          officers arrested both Muniz and Villar.2          II.  THE ROAD TO SENTENCING          II.  THE ROAD TO SENTENCING                    On  March 2,  a federal grand  jury charged  Muniz with          possessing  cocaine,  intending to  distribute  it,  21 U.S.C.             841(a)(1), conspiracy to distribute, 21 U.S.C.   846,  and aiding          and  abetting, 18 U.S.C.  2.   Shortly thereafter, the government          filed a notice memorializing its  position that, for the  purpose          of determining Muniz's offense level under the federal sentencing                                        ____________________               2The grand jury  indicted Villar along with Muniz.   Villar,          however, is not a party to this appeal.                                          4          guidelines, the  prosecution would  seek to hold  him accountable          for  five to fifteen kilograms of cocaine, thus triggering a ten-          year minimum mandatory sentence on the conspiracy count  under 21          U.S.C.    841(b)(1)(A)(ii).   The notice  also admonished that  a          five-year minimum  mandatory sentence applied to  the other count          under 21 U.S.C.   841(b)(1)(B)(ii).                    On  March 29, Muniz pled  guilty to both  counts of the          indictment.  In the plea contract, the parties agreed to disagree          anent length of sentence; the  government continued to advocate a          ten-year  sentence, while  Muniz asserted  that only  a five-year          minimum  applied  because  his  case  involved  well  under  five          kilograms  of  cocaine.    At the  change-of-plea  hearing,  both          parties  stuck to  their guns.   The  government  reiterated that          Muniz should be held  responsible for at least five  kilograms of          cocaine  because   he  agreed  to  deliver  that  amount  to  the          undercover agent.   Muniz,  however, dismissed any  statements he          had  made  about  undelivered  quantities  as  mere  "puffing  or          exaggerating," and urged that he  should only be held accountable          for the amount of contraband actually delivered.                    The Probation Department sided with the government.  In          espousing  this  view, the  PSI Report  alluded  not only  to the          events occurring on February 4 and 5  but also to the post-arrest          statements of  Muniz, Camille  Belle, and Villar  intimating that          they had  dealt with each other  on a regular basis  in the past.          Muniz filed  a  number of  objections  to  the PSI  Report.    He          continued to debunk statements  he had made about his  ability to                                          5          procure  the   full  five  kilograms  of   cocaine  as  unfounded          rodomontade, and argued that he had no means of obtaining so huge          a quantity.  In respect to past dealings,  Muniz admitted that he          had  delivered 125 grams of cocaine to Camille Belle in late 1993          but denied  having sold drugs on  any other occasion.   Not to be          outdone, the government filed an affidavit signed by a DEA agent,          Steven  Story, corroborating many of the facts recited in the PSI          Report.          III.  THE IMPOSITION OF SENTENCE          III.  THE IMPOSITION OF SENTENCE                    In   the   typical  narcotics   case,   the  sentencing          guidelines link  drug quantity  to sentence  length.   See, e.g.,                                                                 ___  ____          United  States v. Sepulveda, 15  F.3d 1161, 1196  (1st Cir. 1993)          ______________    _________          ("In  drug-trafficking cases  under  the  sentencing  guidelines,          sentences are  largely quantity-driven."),  cert. denied, 114  S.                                                      _____ ______          Ct.  2714 (1994).  But ascertaining drug quantity is not always a          simple matter of weighing  and sorting.  When the  district court          sentenced  Muniz on June 15,  1994,3 the parties  waged a pitched          battle concerning the  three kilograms of cocaine  that Muniz had          agreed to supply but  had not delivered.  A  five-year difference          in the minimum mandatory sentence depended on whether these three          kilograms did or did not figure in the drug quantity attributable                                        ____________________               3The  November  1993  edition  of   the  federal  sentencing          guidelines applies to this  case.  See United States  v. Aymelek,                                             ___ _____________     _______          926 F.2d 64, 66 n.1  (1st Cir. 1991) (explaining that, absent  ex                                                                         __          post  facto  concerns,  a   sentencing  court  must  consult  the          ____  _____          guidelines  in  effect at  the time  of  sentencing).   Thus, all          references herein are to that version.                                          6          to Muniz.4                    The parties agree for purposes  of this appeal that the          key to unlocking the drug quantity puzzle here can be found in an          application note that states in pertinent part:                    In  an  offense   involving  negotiation   to                    traffic in a controlled substance, the weight                    under    negotiation   in    an   uncompleted                    distribution  shall be used  to calculate the                    applicable  amount.  However, where the court                    finds  that the defendant  did not  intend to                    produce and  was  not reasonably  capable  of                    producing  the  negotiated amount,  the court                    shall exclude from the  guideline calculation                    the  amount that  it finds the  defendant did                    not intend to produce and  was not reasonably                    capable of producing.          U.S.S.G.  2D1.1, comment., n.12 (Nov. 1993).  We have interpreted          application note 12 as  directing that the amount of  drugs under          negotiation must be  considered in determining the  applicability          of  a  minimum  mandatory  penalty unless  the  sentencing  court          supportably  finds both  that  the defendant  did  not intend  to                             ____          produce the additional quantity of narcotics, and that  he lacked                                                        ___          the capacity to do so.  See United States v. Pion, 25 F.3d 18, 25                                  ___ _____________    ____          (1st Cir.), cert. denied, 115 S. Ct. 326 (1994).  Phrased another                      _____ ______          way,  if the court  finds by a  preponderance of  the evidence in          regard to an aborted narcotics transaction that the defendant had          either the intent  or the capacity to deliver the  full amount of          ______          the drugs under negotiation, then that amount must be included in                                        ____________________               4Although  the  government  urged  the   district  court  to          consider other transactions, e.g., Muniz's prior sales of cocaine                                       ____          to  the  Belles,  as  relevant  conduct includable  in  the  drug          quantity calculation,  the court rejected this  exhortation.  The          government has  not appealed  the court's refusal  to hold  Muniz          responsible for other relevant conduct.                                          7          the drug quantity calculation.                    Here, Muniz contended that  the evidence failed to show          either  intent or capacity.   In an effort  to glean the material          facts,  the   district  court  asked  Agent   Story  to  testify,          questioned him sua sponte, and allowed defense  counsel to cross-                         ___ ______          examine him.  Near the end of the disposition  hearing, the court          and  the Assistant  United States  Attorney (AUSA)  discussed the          holding in Pion and its relevance to Muniz's case:                     ____                    [AUSA]:  But  even if the Court  were to find                    [AUSA]:                    that  [Muniz]  wasn't  reasonably capable  of                    producing  [the three  additional kilograms],                    in this case because  he intended to  produce                    it,  under Pion, the  minimum mandatory still                               ____                    applies.                    THE COURT:   So  you only need  one of  those                    THE COURT:                    factors?                    [AUSA]:  That's correct, your Honor.                    [AUSA]:                    THE COURT:   Well, . . . I'm not enthusiastic                    THE COURT:                    about this type of a sentence, because I grew                    up  in an  era where  you sentence  under the                    specific  terms of  the indictment.   But I'm                    constrained to find, unless [defense counsel]                    can persuade me to  the contrary, that  there                    is  sufficient evidence  that he  intended to                    produce  the  three additional  kilograms and                    that he was, in fact, capable of so doing.          When  defense  counsel  suggested  that  it  "seem[ed]  logically          contradictory to intend  to do  something and not  be capable  of          doing it," the district judge responded:  "No, I said both. . . .          I'm constrained to find that he intended to do it and was capable          of so  doing."  The  judge then explained  his use of  the phrase          "constrained to find," stating:                    .  .  . I  don't like  to  do it  because I'd                    rather   sentence  by   the   terms   of   an                                          8                    indictment, namely, two  kilograms.  But  the                    law [provides]  that if an  intention is made                    to produce  further  kilograms and  that  the                    defendant is capable of so doing, that enters                    into  the calculus  as to  the weight  of the                    cocaine which is the  basis for the  offense.                    And I have to so find.                    After  a further  exchange  with defense  counsel,  the          judge indicated  that he  had ruled,  and  switched the  subject:          "The  finding having been made, what is the recommendation of the          government?"   Not surprisingly, the AUSA  recommended a ten-year          sentence.   Muniz's  lawyer  then made  an  impassioned plea  for          reconsideration   of  the   court's   findings,   attacking   the          credibility of Camille Belle (who had provided information to the          DEA about Muniz's resources as a drug supplier) and stressing the          perceived  unfairness of a ten-year  sentence in light of Muniz's          previously  unblemished  record.   Upon  hearing  the defendant's          allocution   in which  the defendant shed no additional  light on          the  issues  of intent  and capability,  but merely  admitted his          guilt and beseeched the court "not [to] be too tough on me"   the          court passed sentence:                    After review  of the entire  evidence in this                    case, I think a fair sentence, in view of the                    statement  that   has   been  made   by   the                    defendant, I'm going  to base my sentence  on                    the  hard evidence  of the  two  kilograms of                    cocaine.   Therefore, under  the statute, I'm                    going  to  impose  a   term  of  five  years'                    imprisonment, five years' supervised release,                    and $100 special assessment.                         This  man  doesn't  appear to  have  any                    record whatsoever.  He doesn't appear to have                    made  significant  amounts of  money  in this                    business  of cocaine  trafficking.   I cannot                    believe that  he's a major  dealer, and  it's                    unconscionable for me to impose a sentence of                                          9                    ten years  on this individual.   I think five                    years is  a fair and just  sentence, and that                    will be the sentence imposed.          The court  subsequently issued  a written judgment  that extended          well  beyond its remarks at  sentencing.  The  judgment stated in          relevant part:                    The Court did not impose a mandatory sentence                    of  120  months, as  it was  not sufficiently                    satisfied,  on  the  basis  of  the  evidence                    introduced at  the sentencing hearing  and on                    the  defendant's  denial, that  the defendant                    would   have   actually   transferred   three                    additional kilograms  of cocaine on  the next                    day,  the factor  necessary to  the mandatory                    imposition  of an additional 60-month term of                    imprisonment.                    The government  now appeals  the imposition of  a five-          year sentence.          IV.  DISCUSSION          IV.  DISCUSSION                    The prosecution  argues  that the  sentence imposed  is          thrice flawed.   It  says (1) that  the court, having  found both          that Muniz intended to deliver the full amount  under negotiation          and  that he  possessed the  capability  to do  so, erred  in not          including  the  extra  three  kilograms of  cocaine  in  the drug          quantity  calculation as  required  by application  note 12;  (2)          that, in view of the record evidence, any contrary finding   that          Muniz  lacked  the  requisite  intent,  or  that  he  lacked  the          requisite capability, or both    would be clearly erroneous, and,          therefore,  without legal  force;  and  (3)  that the  court,  as          evidenced by  its written judgment, misinterpreted and misapplied          the  applicable legal  standard.   We approach  these contentions          mindful that a  district court's findings  of fact at  sentencing                                          10          are  reviewed  deferentially     under  the  "clearly  erroneous"          standard.  However, the  court's interpretation of the guidelines          and  its application of  rules of law to  the discerned facts are          reviewed  de novo.  See United States  v. Brewster, 1 F.3d 51, 54                    __ ____   ___ _____________     ________          (1st Cir. 1993); United States v. St. Cyr, 977 F.2d 698, 701 (1st                           _____________    _______          Cir. 1992).                    We    address    the   government's    claim    as   an          undifferentiated whole,  beginning with those aspects  of it that          require interpretation of the comments  uttered from the bench at          the  time of sentencing.  The government understands the court to          have  made  definite  findings  of  fact  signifying  that  Muniz          intended  to deliver an additional three  kilograms of cocaine on          February 6, and that  he had the capability to do  so.  Since the          court viewed the  facts in  that way, the  government posits,  it          obviously misread  application note  12, or  otherwise misapplied          the law, in not attributing the weight under negotiation to Muniz          for sentencing purposes.   And, moreover, the government's thesis          runs, any other  findings would  be so clearly  erroneous that  a          reviewing court would be duty bound to set them aside.                    The   defendant   articulates   a  somewhat   different          understanding of  what transpired.   Though he concedes  that the          district court initially found against him on both the intent and          capacity prongs of the application  note 12 paradigm, he  asserts          that   the   court  reconsidered   and,   on   reflection,  found          insufficient evidence of those elements.   Because the nisi prius                                                                 ____ _____          roll supports  the reconsidered findings,  Muniz asseverates, the                                          11          court  acted lawfully  in sentencing  him based  only on  the two          kilograms  of cocaine  that  he actually  delivered, and  nothing          more.                    On this scumbled record, we cannot fully endorse either          party's view.  While the district court  was apparently persuaded          the first  time around that  Muniz had  both the  intent and  the          capability to  deliver the  promised three kilograms  of cocaine,          the court's words have a cryptic quality and its findings   if we          can call them findings  at all   are sufficiently  recondite that          they give us pause.  To add to the confusion,  the court's abrupt          about-face undermines our confidence in its earlier statements.                    Having  refused to  hunt with  the hounds,  we likewise          refuse to hold with  the hare.  Although  Muniz's claim that  the          court reconsidered its initial findings and reversed its field is          not  entirely   without  record  support      Judge  Harrington's          statement  that his decision would be based on "hard evidence" of          two  kilograms of cocaine, made on the heels of defense counsel's          request for reconsideration and coupled  with the imposition of a          five-year (rather than a ten-year) sentence, allows an inference,          strained as it  may be, that  the judge rethought  the issues  of          intent and capacity and came out the other way   it withers under          close  scrutiny.    The  judge never  explicitly  disclaimed  his          earlier findings;  he offered  no reasoned justification  for the          sudden  turnaround;  and  he   made  no  supportive  findings  of          subsidiary fact.  Reading the record with an unjaundiced eye, the          judge's  180-degree   turn  defies  rational   explanation.    We                                          12          conclude, therefore,  that the court's findings  are, on balance,          so inexplicit  that the sentence  cannot plausibly rest  on them.          Cf. United States v. Tavano, 12 F.3d 301, 305 n.5 (1st Cir. 1993)          ___ _____________    ______          (suggesting that, when there is significant uncertainty about the          meaning of the sentencing judge's statements, the ends of justice          are  usually best  served by  starting afresh); United  States v.                                                          ______________          Aguilera-Zapata, 901  F.2d 1209,  1216 (5th Cir.  1990) (vacating          _______________          sentence  where record  unclear  as to  whether sentencing  court          applied the correct legal standard).                    Nor  can the  sentence rest  on the  written memorandum          prepared  and  filed by  the  district  judge as  a  part  of the          judgment  after  he  had  sentenced  the  defendant.   We  cannot                    _____          conveniently  overlook the  prior proceedings, but  must evaluate          the written document   though it deviates in at least one salient          respect from what  the court said orally   as  part and parcel of          the  entire  sentencing record.5    Viewed in  that  context, the          written explanation is insufficient to  overcome the deficiencies          we  have  noted.    More importantly,  the  written  judgment  is          infected  by  a  virulent error  of  law,  and,  thus, cannot  be          accorded substantial weight.                    Explaining the court's error  can best be  accomplished                                        ____________________               5Where,  as   in  this  case,  the   district  court's  oral          expression of its sentencing rationale varies materially from its          subsequent written expression of that rationale, appellate courts          have tended to  honor the  former at the  expense of the  latter.          See,  e.g., United States v.  Drummey, 949 F.2d  997, 997-98 (8th          ___   ____  _____________     _______          Cir.  1991).  Because  we find that neither  the court's oral nor          written  findings adequately  support the  sentence, we  need not          address  the  incipient  problems  posed  by  the inconsistencies          between them.                                          13          by taking  a close  look  at our  opinion in  Pion.   There,  the                                                        ____          defendant  had agreed  to sell  six kilograms  of cocaine  in two          installments.  Pion,  25 F.3d at 20.  The  DEA arrested him after                         ____          he had tendered  the first (three-kilogram) installment.  See id.                                                                    ___ ___          At  sentencing, the  judge imposed  a ten-year  minimum mandatory          sentence after  finding that, though Pion intended to deliver the          second three-kilogram  installment, he was not reasonably capable          of  doing  so.   See id.  at 24-25.  Pion  assigned error  to the                           ___ ___          inclusion  of the undelivered quantity on the ground that, as the          sentencing court had  found, he lacked  the capability to  secure          it.   We rejected that argument, holding that application note 12          "requires  the  sentencing court  to  include  `the weight  under          negotiation in an uncompleted  distribution' unless it finds that          `the defendant did not  intend to produce and was  not reasonably                                                    ___          capable  of producing the negotiated amount.'"  Id. at 25 (citing                                                          ___          application note 12).  Consequently, Pion's claim failed "because          neither conjunctive clause in note 12 can be ignored."  Id.                                                                  ___                    In the document under consideration here,  the district          judge wrote that, based on the evidence, he "was not sufficiently          satisfied  .  .   .  that  the  defendant   would  have  actually          transferred three additional kilograms of cocaine on the next day          . . . ."  He described  this as "the factor necessary" to trigger          the imposition of the higher (ten-year) minimum mandatory term of          imprisonment.   As a  matter of  law, the judge  erred:   as Pion                                                                       ____          teaches, whether  a  defendant would  actually  have  transferred                                         _____  ________  ____  ___________          additional drugs is not the relevant inquiry.                                          14                    By focusing on the factual probability of delivery, the          lower  court turned the proper rule inside  out.  Pion stands for                                                            ____          the proposition  that a defendant's subjective  intent to deliver          drugs under negotiation is sufficient to trigger their inclusion,          even  if   the  defendant's   intent  is  stymied   by  objective          impossibility.   See id.  The judge's reasoning flies directly in                           ___ ___          the teeth of this  proposition, and, in the  bargain, contradicts          the plain language of application note 12.                    Although what we  have said to this  point explains the          need to vacate  Muniz's sentence, we feel obliged to comment on a          larger issue.  Judges are free, of course, to express their views          about the wisdom of guideline sentencing, and many have chosen to          do so.  But  when such value judgments occur in  the context of a          judicial  proceeding, it is incumbent upon the judge to avoid the          further  (and  quite  different)  impression  that  distaste  has          crossed the line into  disregard.  The circumstances of  the case          at bar underscore this danger.                    When, for example, the AUSA reminded the district judge          that our opinion in Pion was on all fours, the judge stated:                              ____                    I understand  what  the First  Circuit  said.                    What  I  have  problems  with  is  that  when                    somebody is charged in an indictment [with] a                    specific  amount and  then talk  that they're                    going  to produce  something  else  but  they                    don't because they're  arrested, and then you                    come  to court,  .  . .  and  you ask  for  a                    sentence   based   on  a   fact   that  three                    additional  kilograms  [would be]  delivered,                    it's  a  very  uncomfortable  position  to be                    placed  in.    It seems  to  me  that if  the                    government wants to  charge somebody for five                    kilograms, then  why not grab  him after they                    produce them, rather than arresting him after                                          15                    two and then asking for five additional years                    for something that he hasn't done.          Moments later,  the judge repeated these  sentiments.6  Moreover,          the  court said  much the  same thing  in announcing  its rulings          rejecting the government's proffer  of relevant conduct evidence.          See supra note 4.          ___ _____                    It is not these statements in the abstract that present          the  problem;  rather, it  is the  context  they provide  for the          district court's  judicial actions.   Courts do  sometimes change          positions; but to revise  findings, without direct explanation or          effort   at   support,   after  substantially   criticizing   the          controlling legal rules,  can create a  damaging impression.   In          this case,  that unhealthy circumstance also  permitted attention          to be drawn to other cases  in which the court of appeals rebuked          the district judge for failure to adhere to the guidelines.               See, e.g., United States v. Bennett, 37 F.3d 687 (1st Cir. 1994);          ___  ____  _____________    _______          United  States v. Norflett, 922  F.2d 50 (1st  Cir. 1990); United          ______________    ________                                 ______          States v. Williams, 891 F.2d 962 (1st Cir. 1989).          ______    ________                    It is  vital  to the  rule  of law  that  congressional          commands, so  long as  they are constitutionally  appropriate, be          honored.   Federal courts, in  particular, are not  at liberty to                                        ____________________               6The court confided:                    I  don't like  to sentence  someone for  five                    additional  years  on  weight  that  was  not                    transmitted or transferred  or produced,  the                    weight  of the  narcotic, something  that was                    promised,   especially   if  it's   a  double                    sentence.  If it was asking for a year, maybe                    you could  sallow it, but  you're going  from                    five to ten years, mandatory.                                          16          disregard  lawful  directives  of  Congress  (or  the  Sentencing          Commission  for  that  matter) simply  because  those  directives          conflict with the judge's  personal notions of fairness.   In the          last analysis, it is  crucial to public confidence in  the courts          that  judges be  seen  as enforcing  the law  and  as obeying  it          themselves.                    This  principle   applies  with   full  force  to   the          guidelines  which,   in  substance,  are  commands   to  judges.7                                               ___          Constitutional defects aside, "when . . . the legislative trumpet          sounds clearly, courts are duty bound to honor the clarion call."           United States v. Jackson, 30 F.3d 199, 204 (1st Cir. 1994).           _____________    _______          V.  THE REMEDY          V.  THE REMEDY                    We  must  yet decide  how  best to  handle  a situation          riddled by  error.  Mindful, as  we are, of both  the high stakes          and the abundant ambiguities, we decline the parties' invitations          to speculate  about what  the  court did  or did  not  mean.   We          likewise  decline   to  insert  ourselves  into   the  breach  by          attempting, on a cold record, to find the facts from scratch.  In          the end, the  course of prudence  beckons.  We  are left with  no          principled  choice but  to  vacate the  defendant's sentence  and          remand for a completely new sentencing hearing.  This alternative          is especially  attractive here because of  the strong possibility          that  the  judge's antipathy  for  the  sentencing regime  either                                        ____________________               7Of course, this principle applies with equal if not greater          force in cases to  which minimum mandatory sentences attach.   In          those  situations, Congress,  by  definition, has  made  explicit          policy choices.                                          17          influenced or might reasonably be thought to have influenced  the          imposition of the particular sentence.  For reasons that we think          are  apparent, we direct that resentencing  be before a different          judge.                      The defendant's conviction is affirmed, his sentence is                    _______________________________________________________          vacated,  and  the  cause  is  remanded  for  resentencing,  with          _________________________________________________________________          instructions.          ____________                                          18
