             United States Court of Appeals
                        For the First Circuit

No. 02-1846

                         ERNESTO CIRILO-MUÑOZ,

                        Petitioner, Appellant,

                                   v.

                       UNITED STATES OF AMERICA,

                         Respondent, Appellee.


             APPEAL FROM THE UNITED STATES DISTRICT COURT
                    FOR THE DISTRICT OF PUERTO RICO

            [Hon. Héctor M. Laffitte, U.S. District Judge]


                                Before

                          Boudin, Chief Judge,

                       Torruella, Circuit Judge,

                      and Fusté,* District Judge.


     Elaine Pourinski for appellant.
     Germán Rieckehoff, Assistant United States Attorney, with whom
H.S. García, United States Attorney, and Sonia I. Torres-Pabón,
Assistant United States Attorney, were on brief for appellee.



                            April 15, 2005




     *
         Of the District of Puerto Rico, sitting by designation.
           BOUDIN, Chief Judge.            In 1995, Ernesto Cirilo-Muñoz

(“Cirilo”)    was   convicted   of   aiding    and   abetting,   during   the

commission of a drug crime, the murder of an on-duty policeman.

This court affirmed the conviction.            United States v. Mangual-

Corchado, 139 F.3d 34 (1st Cir. 1998).           Cirilo thereafter sought

relief under 28 U.S.C. § 2255 (2000), which was denied by the

district court, and now seeks review in this court, attacking his

sentence based on ineffective assistance of counsel and under

Blakely v. Washington, 124 S. Ct. 2531 (2004), and United States v.

Booker, 125 S. Ct. 738 (2005).

           Our earlier opinion sets forth the facts in detail but,

in substance, the following is what occurred. Jose Lugo-Sanchez

(“Lugo”), Saul Mangual-Corchado (“Mangual”) and David Silva worked

regular shifts selling drugs outside Cafetín El Ideal–-a retail

shop where customers could also drink and play pool--in Trujillo

Alto, Puerto Rico.     Cirilo also frequented El Ideal and was said

(by El Ideal’s owner) to be “almost always” with Mangual and Lugo,

although there was no evidence that he sold drugs.

             Lugo correctly suspected that one drug customer–-Agent

Ivan Mejias-Hernandez (“Mejias”)–-was in fact an undercover police

officer.   In October 1994, one of Lugo’s suppliers ordered Lugo to

kill Mejias, and Lugo in turn told Luis Antonio Ramirez-Ynoa

(“Ramirez”) of his plan.    On November 1, 1994, Mejias arrived at El

Ideal between 10:00 a.m. and 11:00 a.m. driving a white Suzuki.            At


                                     -2-
around 11:15 a.m., Lugo called Ramirez on the phone from El Ideal,

telling him to drive to El Ideal and to bring “the revolver.”1

Ramirez arrived by 12:30 p.m. with a black Oldsmobile and a

revolver.

            Ten to fifteen minutes later, Cirilo arrived at El Ideal

and was greeted by Lugo.          Shortly thereafter, Lugo and Mejias

walked to the stoop of a nearby building, where Lugo accused Mejias

of being an informant.     Silva and Ramirez arrived at the stoop, and

Lugo walked back toward El Ideal, retrieving the revolver from the

Oldsmobile and concealing it.       Walking back toward El Ideal again,

Lugo encountered Cirilo, Mangual and one Yito Morales, and tried

unsuccessfully to incite them to “beat up” Mejias.

            Then   Lugo,   with   several   others   (possibly    including

Cirilo), returned to the stoop.           There Lugo ordered Mejias at

gunpoint to turn over the keys to the Suzuki.         Ramirez and Mangual

then searched the Suzuki and retrieved Mejias’ gun.              Cirilo was

standing “real close to the car but not searching,” just “looking”;

his fingerprints were found on the Suzuki, although no evidence was

presented as to when he touched the car.

            Mejias, escorted by Lugo, then returned to the Suzuki

from the stoop and retrieved his keys.        Lugo told him to get into

the car and “not to come around there anymore.”        However, as Mejias



     1
      Quotes such as these throughout this decision are taken from
the trial transcript.

                                    -3-
was about to leave, another man called “Papilin” told Lugo, “You

have to take him or kill him because he might come back.”      There

was no direct evidence that Cirilo heard this exchange, and the

evidence was unclear as to where Cirilo was standing (or where

Papilin and Lugo were standing) when this command was given.

            Lugo then ordered Mejias into the Suzuki, and Mangual

drove the Suzuki onto the highway with Mejias and Lugo in the back

seat.    Shortly thereafter, Lugo shot Mejias in the abdomen and in

the head.    Cirilo and Ramirez followed in the Oldsmobile, with

Cirilo driving, although there was no evidence as to why.      Lugo

later testified that he had not told Cirilo about the planned

murder and that he (Lugo) had not asked that Cirilo follow.2

            The cars stopped at a cemetery. Whether Mejias was still

alive is unclear but in any event Ramirez shot Mejias twice more in

the head.    The men then drove in the two cars to a quarry (during

the drive Cirilo ingested cocaine provided by Lugo); the Suzuki

(with Mejias’ body in it) was pushed into the quarry.   The men then

left the quarry in the Oldsmobile driven by Cirilo.   Lugo split the

$240 he had taken from Mejias’ wallet with the others.       Cirilo

finally drove Lugo home.




     2
      It should be noted that Lugo had also told two different and
later-recanted versions of events to the FBI before trial, at least
one of which incriminated Cirilo. Given Cirilo’s conviction, it is
uncertain whether the jury credited Lugo’s exculpatory statement at
trial.

                                 -4-
           Mangual, Ramirez, Lugo and Cirilo were apprehended and,

in September 1995, Cirilo was convicted after a jury trial in

federal court of aiding and abetting the murder of an on-duty law-

enforcement officer during the commission of a drug offense, 21

U.S.C. § 848(e)(1)(B) (2000); 18 U.S.C. § 2 (2000).         On appeal,

Cirilo argued that the evidence was insufficient to establish the

aiding and abetting offense but, with one judge dissenting on this

issue, the conviction was affirmed.      Mangual, 139 F.3d at 44-49;

id. at 49-56 (McAuliffe, J., dissenting in part).

           At sentencing in January 1996, the district judge found

that Mejias’ killing was motivated by his status as a police

officer,   resulting   in   a   three-level   enhancement   under   the

sentencing guidelines, U.S.S.G. § 3A1.2(a).      This raised Cirilo’s

sentencing range from about 27 to 34 years, to required life

imprisonment. At sentencing Cirilo’s trial counsel objected to the

enhancement, arguing that the government had not shown that Cirilo

knew that Mejias was a police officer.    The issue was not raised on

appeal.

           On September 29, 1999, Cirilo filed a petition for post-

conviction relief under 28 U.S.C. § 2255 (2000),3 attacking his

sentence in various respects.        The district court denied the


     3
      Under section 2255, a federal court that imposed a sentence
may vacate or correct it if “the sentence was imposed in violation
of the Constitution or laws of the United States . . . or . . . the
sentence was in excess of the maximum authorized by law, or is
otherwise subject to collateral attack.”

                                  -5-
petition, concluding inter alia that the court at sentencing had

correctly applied the enhancement and that the lawyer’s failure to

raise the issue on appeal did not violate Cirilo’s constitutional

rights.   We granted a certificate of appealability, id. § 2253(c),

directed to this claim and later broadened review to encompass a

Sixth Amendment claim as well.

            An ineffective assistance claim requires the defendant–-

who bears the burden of proof, Scarpa v. DuBois, 38 F.3d 1, 8-9

(1st Cir. 1994)–-to show (1) that counsel’s performance fell below

an objective standard of reasonableness, and (2) that but for

counsel’s failures, the outcome would likely have been different.

Strickland v. Washington, 466 U.S. 668, 687 (1984); Cofske v.

United States, 290 F.3d 437, 441 (1st Cir. 2002).             We review the

district court’s underlying factual findings for clear error, but

review its ultimate legal conclusions de novo.           Reyes-Vejerano v.

United States, 276 F.3d 94, 97 (1st Cir. 2002); Cody v. United

States, 249 F.3d 47, 52 (1st Cir. 2001).

            Because counsel is entitled to exercise professional

judgment,   Cirilo   must   show   that   an   attack   on   his   sentencing

enhancement on direct appeal “was so obvious and promising that no

competent lawyer could have failed to pursue it.” Arroyo v. United

States, 195 F.3d 54, 55 (1st Cir. 1999).         We believe that test is

met in this instance: the enhancement, which had a dramatic effect




                                    -6-
on the sentence, rested on very thin evidence and a possible

misinterpretation of the jury verdict by the district court.

            During the sentencing hearing, the judge asked (and was

answered in the affirmative), “Didn’t the jury find that this

victim was killed . . . because he was a police officer?”             Later

(during a discussion of a minor-participant adjustment), Cirilo’s

lawyer   suggested    that   even   though   Cirilo   followed   in     the

Oldsmobile, “that doesn’t mean that [Cirilo] knew that [Lugo] was

going to kill and that [Mejias] was a police officer.       He may have

been surprised when--”.      The court responded “that’s what the jury

decided.”

            If the district judge was referring to knowledge of

Mejias’ status, this is not what the jury had decided; the court’s

instructions to the jury stated that “[k]nowledge of the victim’s

status as a law enforcement officer is not necessarily an element

of the offense.”      Although the jury was instructed that Cirilo

needed to know that murder was intended, the jury was not required

by the instruction to find that Cirilo knew that the victim was a

police officer.4     The distinction between levels of knowledge is a

fine one but it mattered to the particular enhancement.




     4
      Whether 21 U.S.C. § 848(e)(1)(B) itself or its aiding-and-
abetting variant require knowledge of the victim’s status as a
police officer is not clearly addressed by circuit case law, but
the jury instructions in this case said that such knowledge was not
necessarily required.

                                    -7-
          Whether this possible misperception affected the district

judge’s ruling is unclear. In the sentencing hearing, the district

judge did make a formal finding that Cirilo knew that the victim

was a police officer when he (Cirilo) assisted in the venture.   But

there was no detailed discussion by the district judge of the

evidence on which such a finding might rest.     Ordinarily it is

enough that sufficient evidence exist, but in this instance the

evidence is thin and the basis for the inference drawn by the

district judge is not apparent to us.

          The conviction itself rested on fairly limited evidence

of scienter, but an inference that Cirilo was involved in the plot

could be drawn from Cirilo’s presence at the scene of incitement

and threat, his prints on the car, his otherwise unexplained

pursuit of the Suzuki with a party to the plot, his presence when

the victim was shot again and his sharing of the proceeds.   Other

contextual clues were the other perpetrators’ willing acceptance of

Cirilo’s presence during the events leading up to Mejias’ death,

and evidence of Cirilo’s indebtedness to Lugo’s supplier which may

have given Cirilo a motive to assist.

          It is much harder, on what we can find in this record and

without more explanation, to see why Cirilo should be taken to have

known that the intended victim was a police officer.5     Cirilo’s


     5
      The guideline, unlike the statute, explicitly requires that
Cirilo’s offense have been “motivated by” Mejias’ status as an
officer.    U.S.S.G. § 3A1.2(a).    This ordinarily would entail

                               -8-
conduct and continued presence may be difficult to explain if he

were not aware that Mejias would be killed; the panel that affirmed

the conviction so reasoned.    But even with this awareness, Cirilo

might have thought that Mejias was an informant or a member of a

rival drug supply organization; or Cirilo might have assisted his

associates’ efforts to kill a man without knowing just why they

were doing it.   Had any of these been Cirilo’s motivation, the

enhancement would not apply.

          Although Lugo at one point testified that he suspected

Mejias of being “a police officer,” he also testified that he had

confronted Mejias and told him that “as far as I was concerned he

was a police informant” and “a snitch,” and that he told Silva to

find out if Mejias was really “a police informant or what.”

Particularly if Lugo’s expressed concern was that Mejias was an

informant (and not that he was an officer), it is unclear why the

district judge thought that Cirilo knew or believed Mejias was a

police officer and thus that his assistance in the murder was

motivated by Mejias’ official status.

          The government says that the omission of the enhancement

issue on direct appeal was simply a “tactical judgment.” Murchu v.



knowledge or belief that the victim is an officer, see, e.g.,
United States v. Garcia, 34 F.3d 6, 13 (1st Cir. 1994) (knowledge
of victim’s status established motivation); United States v. Salim,
287 F. Supp. 2d 250, 307-08 (S.D.N.Y. 2003) (same), and at least
one court has said that knowledge is necessary. United States v.
Park, 988 F.2d 107, 110 (11th Cir. 1993).

                                -9-
United States, 926 F.2d 50, 58 (1st Cir. 1991).       Yet the argument

would not have detracted from the evidentiary challenge to the

conviction but would have built upon it.           It had the further

advantage of focusing on the district court’s arguable conflation

of the two different scienter issues.         And it represented the

difference between a long jail sentence and a life sentence.        One

would need a potent reason for omitting the enhancement argument

from the direct appeal.

          Assuming   that   the    omission   of   the   argument   was

deliberate, the best one can say for counsel is this: that in some

situations lawyers think--usually in error--that by omitting a good

argument, they can thereby increase the chance of prevailing on a

more doubtful argument directed to a more far-reaching result.

However, in this instance, such a calculation would have been

manifestly unreasonable under an objective standard, given the

comparative strengths of the two different attacks, the opportunity

to make both, and the stakes for the defendant.

          The second stage of the Strickland inquiry requires a

“reasonable probability that, but for counsel’s unprofessional

errors, the result . . . would have been different.”          Epsom v.

Hall, 330 F.3d 49, 53 (1st Cir. 2003) (quoting Strickland, 466 U.S.

at 694) (omission in original).    We think that had the enhancement

issue been pressed on direct appeal, it would have altered the

outcome of the appeal.    This is so because of the thinness of the


                                  -10-
evidence   to   support   the   enhancement,    the   lack   of    detailed

explanation for the finding of knowledge, and the court’s apparent

error in relying at least in part upon the jury verdict for a

finding that the jury did not visibly make.

           Some errors that result in a defendant losing the benefit

of his appeal may be remedied by reinstating the appeal, see United

States v. Torres-Otero, 232 F.3d 24, 30-32 (1st Cir. 2000), but in

this instance our second-stage Strickland ruling renders this

interim step    pointless.      The   government   has   already   had   its

opportunity on this appeal to defend the enhancement, and we

already know that our own disposition of the direct appeal would

have been to remand for re-sentencing.         We therefore do so now.

           We have had to make our assessment of the constitutional

claim based on our own unaided review of the record and without any

clear understanding of the district judge’s reasoning in finding

that Cirilo knew in advance of the crime that the victim was a

police officer.   Conceivably, on re-sentencing, the government may

again urge that such knowledge existed.         Without foreclosing such

an argument by the government, we are highly skeptical that such a

premise can be established or that a life sentence can be justified

on the known facts.

           Cirilo’s brief may be taken to raise a separate claim

under section 2255 that his sentence should be vacated because the

enhancement was supported by inadequate evidence.            This issue--


                                  -11-
unlike the ineffective assistance claim covered by the certificate

of appealability and the Sixth Amendment claim that we later

expressly permitted Cirilo to pursue–-is not properly before us as

an independent claim.     Further, the use of section 2255 to attack

sentencing findings is, if permissible, at best limited to very

unusual cases.    It also is likely that on remand the issue will

disappear from the court.

            As part of his section 2255 petition, Cirilo filed a

supplemental brief seeking additional review of his sentencing in

light of the Supreme Court’s decision in Blakely v. Washington, 124

S. Ct. 2531 (2004), which we allowed.        Cirilo urges resentencing

because the jury did not find beyond a reasonable doubt that he

believed that Mejias was a police officer.        Blakely claims are now

viewed through the lens of United States v. Booker, 125 S. Ct. 738

(2005).

            Only in limited circumstances do new rules apply to

convictions that have already become final.       Schriro v. Summerlin,

124 S. Ct. 2519, 2522 (2004).6        These exceptions include rules

that “prohibit criminal punishment for certain types of primary

conduct,”   and   those   that   “forbid   the   imposition   of   certain



     6
      Cirilo’s conviction became final in 1998, when certiorari as
to the direct appeal was denied. Cirilo-Muñoz v. United States,
525 U.S. 942 (1998). Because finality preceded even Apprendi v.
New Jersey, 530 U.S. 466 (2000), Booker certainly announced a “new
rule” to which the described retroactivity doctrine applies. See
Beard v. Banks, 124 S. Ct. 2504, 2511 (2004).

                                  -12-
categories of punishment for particular classes of defendants.”

Sepulveda v. United States, 330 F.3d 55, 59 (1st Cir. 2003); see

Schriro, 124 S. Ct. at 2522-23.                Neither rubric describes this

case.

            Otherwise, new rules are applied retroactively to cases

already final      only   if     they   are    “watershed   rules      of   criminal

procedure implicating the fundamental fairness and accuracy of the

criminal proceeding.”            Schriro, 124 S. Ct. at 2523 (internal

quotation marks omitted).           Cirilo’s version of the error (under

Blakely) was that the enhancement finding was made by the judge

based on a preponderance of the evidence; Booker has preserved the

use   of   judge-made     findings      by    directing   that   the    guidelines

hereafter be treated as advisory rather than mandatory guidelines.

See United States v. Antonakopoulos, 399 F.3d 68, 75 (1st Cir.

2005).

            In our view, the use of judge-made findings at sentencing

does not undermine “accuracy” (in terms of substantially different

outcomes) or undermine fundamental fairness.                     Such judge-made

findings    have   been    the    conventional      practice     throughout      our

nation’s history.       They will, post-Booker, continue to be the rule

where the sentence is within statutory limits.                   We have already

decided that Apprendi, 530 U.S. at 430, which provides jury trials

for increasing statutory maximums, would not apply retroactively.




                                        -13-
See Sepulveda, 330 F.3d at 61-63.           This resolves any comparable

Blakely-like claim in this circuit.

            As for the application of mandatory rather than advisory

guidelines, it is unclear that advisory guidelines will alter a

great number of sentences; mandatory minimums imposed by statute

are another question altogether.         The guidelines remain a central

consideration in sentencing; and sentencing courts must still

consider the same statutory factors that the Sentencing Commission

was required to use in promulgating the guidelines.               See 18 U.S.C.

§ 3553(a) (2000); 28 U.S.C. § 994(m) (2000).           To describe the use

of   mandatory   guidelines     as   generating    serious       inaccuracy   or

fundamental unfairness would not be easy.

            Realistically, it is unlikely that the Supreme Court will

adopt   a   retroactivity     analysis      that   opens    up    to   required

reexamination practically all of the federal sentences imposed

since the guidelines went into effect in 1987. This would comprise

tens of     thousands   of   sentences   imposed    under    a    regime   whose

lawfulness was assumed during most of this period.               If such a vast

reopening of final judgments is required, it must await a decision

of the Supreme Court.        Certainly Booker itself does not give any

clear hint that retroactive effect is intended.

            Every other circuit that has considered this issue has

agreed that Booker does not apply retroactively.                 See Varela v.

United States, 400 F.3d 864, 866-68 (11th Cir. 2005); Humphress v.



                                     -14-
United States, 398 F.3d 855, 860-63 (6th Cir. 2005); McReynolds v.

United States, 397 F.3d 479, 480-81 (7th Cir. 2005); United States

v. Mitchell, 2005 WL 387974, at *1 (2d Cir. Feb. 18, 2005)

(unpublished); United States v. Leonard, 2005 WL 139183, at *2

(10th Cir. Jan. 24, 2005) (unpublished).

          Cirilo’s sentence is vacated and the matter remanded to

Judge Laffitte for resentencing.   We leave it to the parties and to

the district court to resolve in the first instance whether this

new sentencing, which will occur post-Booker, should be governed by

the advisory guideline regime.     Although failure to use advisory

guidelines is not the basis for the remand, the issue of their use

once the remand is ordered on other grounds remains open for

resolution.7

          It is so ordered



                       Concurrence Follows.




     7
      We note that several courts of appeals have said that the
advisory guidelines regime is to be used after Booker, even where
remands for resentencing were not caused by a Booker error. See,
e.g., United States v. Gutierrez-Ramirez, ___ F.3d ___, 2005 WL
762664, at *6 (5th Cir. Apr. 5, 2005); United States v. Doe, 398
F.3d 1254, 1261 n.9 (10th Cir. 2005); United States v. Gleich, 397
F.3d 608, 615 (8th Cir. 2005).


                                 -15-
           TORRUELLA, Circuit Judge (Concurring).

           Lugo's cold-blooded murder of Officer Mejías
           was as horrible a crime as can be committed.
           On that point we can agree. If the horrible
           nature of the murder added some weight to the
           record evidence supporting the aiding and
           abetting charge against Cirilo-[Muñoz], then I
           would gladly join my colleagues in affirming
           his conviction. But it does not.

United States v. Mangual-Corchado, 139 F.3d 34, 49 (McAuliffe, J.,

dissenting in part). This is the dissenting judge's view on direct

appeal regarding the sufficiency of evidence on the aiding and

abetting charge, a matter which we are presently foreclosed from

revisiting on the merits. Nevertheless, the facts surrounding this

conclusion are not irrelevant to the issues before us.       This is

particularly so in light of the majority's recognition, especially

in its discussion of appellant's claim of ineffective assistance of

counsel,   of   the     "thinness"   of   the   evidence   supporting

Cirilo-Muñoz's knowledge that the victim was a police officer. See

maj. op. at 7, 8, 10.

           I write separately in part because I have considerable

disagreement with the majority's glossing of the events as they

unfolded prior to the police officer's murder by Lugo. Although my

view of the relevant facts might, at first glance, appear to bog

down on minor details, those facts are significant precisely

because of the "thinness" of the case against Cirilo-Muñoz, and

because that "thinness" is on a broader scale than my colleagues in

the majority acknowledge.

                                 -16-
            First, there is no evidence that Cirilo-Muñoz was present

at "El Ideal" on the day in question as part of Lugo's drug-selling

gang.    Cirilo-Muñoz lived only five minutes' walking distance from

this neighborhood hangout, which he regularly frequented to listen

to music, play pool and talk to other youths.   There is no evidence

that he sold drugs, although the record does show that he was a

drug user.      Second, there is no evidence that Cirilo-Muñoz's

presence at "El Ideal" on November 1, 1994, was at the behest of

Lugo or of anyone in his gang.    When he arrived, Lugo was already

there, and the evidence is uncontradicted that Cirilo-Muñoz was

unaware of the reason for Lugo's presence and his intent to harm

the undercover police officer, Mejías.      In fact, the record is

clear that later, when Lugo tried to incite several of those

present to "beat up" Mejías, appellant flat out refused to do so.8

Furthermore, there is no evidence, and no valid inference can be

made from the record, that Cirilo-Muñoz was on the stoop at any

time on November 1st when Lugo and his cohorts were accosting Agent

Mejías.    The majority's statement to the effect that Cirilo-Muñoz

"possibly" was on the stoop, maj. op. at 3, is pure speculation.

In fact, the evidence is to the effect that Cirilo-Muñoz did not

exit "El Ideal" until after Ramírez and Mangual came out of the

stoop to search Mejías's car for the agent's gun. Cirilo-Muñoz did

     8
      It would seem that if Cirilo-Muñoz was disinclined to "rough"
Mejías up, he would even be less agreeable to aid in his murder, a
fact that, as I will further discuss, is borne out by Lugo's
exculpatory evidence.

                                 -17-
not    participate   in    the   search   and   "was   just   looking."   The

fingerprints found on Mejías's car matching Cirilo-Muñoz supports

this account, as they were all lifted from the exterior portions of

the car.   No evidence exists as to when they were imprinted there.

            It is with regard to the evidence surrounding the murder

of Agent Mejías that I find the majority's statement of the facts

most problematic because I believe it unfairly places an aura of

knowledge of the events to follow on appellant.           This implication

of knowledge is unsupported by the "thin" record, so "thin" that

the government, who is the one properly called upon to meet this

burden under our system of justice, has verily skated through the

ice.

            In this regard, the majority states that "[t]here was no

direct evidence that Cirilo-[Muñoz]" heard the exchange between

Lugo and "Papilín" in which "Papilín" told Lugo to "take or kill"

Mejías, and that "the evidence was unclear as to where Cirilo-

[Muñoz] was standing (or where Papilín and Lugo were standing) when

this command was given." Maj. op. at 4.          If that is so -- i.e., if

the evidence is not direct and is unclear -- what should follow,

considering that this is a criminal case in which the unstated

premise of these statements carries serious consequences for the

appellant, is a statement by the majority to the effect that no

inference of knowledge regarding this conversation may be imputed

upon Cirilo-Muñoz.        But no such disclaimer is made.       Instead, we



                                    -18-
are left with the worst kind of imputation, a half-inference, a

lingering doubt as to what appellant has to answer for, and a vague

question mark as to what weight is actually being given by the

court to this non-evidence.

                This rustling of soft "evidence" is followed by the

majority's        downgrading    of    the   only   direct   evidence   presented

regarding Cirilo-Muñoz's lack of knowledge of Mejías's fate. See

Maj. op. at 4, n.3.        Lugo, the person who actually murdered Mejías,

and who took the stand as a government witness, testified that

after he shot Mejías upon leaving "El Ideal" in a car with Mangual,

he observed that Cirilo-Muñoz and Ramírez were following them in

another car. Lugo testified that he had not asked Cirilo-Muñoz and

Ramírez to follow them.          In fact, Lugo testified that Cirilo-Muñoz

only knew about beating Mejías, but that at that time "didn't know

that he was going to be killed."9             Although the majority points to

Lugo's earlier statement to the F.B.I. that incriminated appellant,

this statement was made when Lugo was looking to make a deal for

himself with the government.            By the time of trial, however,         Lugo

no longer had anything to gain by wrongly implicating Cirilo-Muñoz.

                In light of the full factual background of this appeal,

I   am       concerned   about   the   majority's     decision   to   remand    for

resentencing to the same judge who sentenced appellant originally

         9
      Even Mangual, the driver of the Oldsmobile carrying Lugo and
Agent Mejías, was shocked and lost control of the car when Lugo
first shot Mejías. Mangual asked "What did you do?," to which Lugo
responded "Keep driving or you're next."

                                         -19-
and who also decided his § 2255 petition.   This judge had two bites

at the apple to do so, and in each instance insisted that the

"whole picture" supports Cirilo-Muñoz's enhancement.10   Yet our own

examination of the entire trial transcript failed to produce any

evidence establishing Cirilo-Muñoz's knowledge of the victim's

status as an officer.11   The majority's failure to address the

     10
      The district judge stated that he looked at the "whole
picture" to infer that the "defendant knew that the victim was a
police officer and [that] he was being killed because he was a
police officer."    As evidentiary support, the judge cited the
following: (1) Cirilo-Muñoz's arrival 10-15 minutes after Ramírez's
arrival; (2) the proximity between the stoop and El Ideal; (3)
Lugo's solicitation of Cirilo-Muñoz and others to "beat up" Mejías;
(4) Cirilo-Muñoz getting into the car with Ramírez; (5) the
inference that Cirilo-Muñoz and Ramírez must have heard the two
shots from the Oldsmobile; and (6) Cirilo-Muñoz following in the
car, sharing in the money, and driving Lugo home. However, even if
we take all these facts in the light most favorable to the court's
interpretation, the aggregate fails to establish Cirilo-Muñoz's
knowledge of Mejías's status as an officer. The proffered evidence
also falls significantly short of instances where we have found
such "reasonable belief" of the victim's status to support the
enhancement. See United States v. García, 34 F.3d 6, 13 (1st Cir.
1994) (record supports § 3A1.2 enhancement because evidence
indicated that the police officers displayed their identification
as they approached defendant and yelled "police"); United States
v. Carrillo-Figueroa, 34 F.3d 33, 42-43 (1st Cir. 1994) (record
supports § 3A1.2 enhancement because defendant saw that the
"vehicle that [the officer] was driving exhibited characteristics
identifying it as an official vehicle);          United States v.
Zaragoza-Fernández, 217 F.3d 31, 32-33 (1st Cir. 2000) (record
supports § 3A1.2 enhancement because of "abundant evidence that
defendant saw [the officer] in front of his car [and] had reason to
appreciate that he was a law enforcement officer").
     11
      As explained, Cirilo-Muñoz did not engage in any of the
conversations regarding Lugo's suspicion of Mejías as an officer --
Cirilo-Muñoz was not present when Lugo accused Mejías of being an
officer, he was not present when Lugo called Ramírez, he was not
brought to the stoop to discuss Mejías, and he was not present when
Mejías was abducted.    We found no evidence that Lugo ever told
Cirilo-Muñoz of his suspicion of Mejías's status, much less of his

                               -20-
district judge's reasoning and obstinate conclusion has provided an

implicit roadmap for the same judge to reimpose a similarly harsh

sentence, thus possibly making this remand an exercise in futility.

           In fact, there is little said in the majority opinion, or

for that matter, in this concurrence, that the trial judge, who

heard the flimsy evidence against appellant, was not aware of when

he sentenced appellant.       Furthermore, from the transcript of the

sentencing hearing, a small flavor of which is reproduced in the

majority opinion, maj. op. at 7, it is apparent that this judge was

not greatly interested in hearing the argument of counsel.12                This

tone is reproduced again when we see the short shrift given by the

same judge to appellant's § 2255 petition, in which he found

without   much   ado   not   only   that    he   had   properly   applied   the

enhancement based on appellant's knowledge of the victim's status



intent to kill Mejías. This is supported by the fact that even
Mangual, the driver, was shocked when Lugo shot Mejías, by Lugo's
initial decision to let Mejías drive away, and by Cirilo-Muñoz's
refusal to "beat up" Mejías. We also found no evidence to support
any inference that Cirilo-Muñoz suspected Mejías's status prior to
the murder, especially given that Mejías often acted outside his
official duties. Evidence at trial shows that Mejías purchased
crack and gave it to a prostitute, he regularly ordered a flask
filled with rum, he drank and played pool with Cirilo-Muñoz and
others, and he brandished a gun during a serious confrontation with
a debtor. Even Lugo began to have doubts about Mejías's status.
As the majority recognizes, "if Lugo's expressed concern was that
Mejías was an informant (and not that he was an officer), it is
unclear why the district judge thought that Cirilo-Muñoz knew or
believed Mejías was a police officer." Maj. op. at 9.
     12
      As counsel was about to argue Cirilo-Muñoz's lack of
knowledge, the judge interrupted and stated: "[c]ounsel, that's
what the jury decided. I'm not going to get into that."

                                     -21-
as an officer -- of which there is not a shred of evidence anywhere

on the record -- but also that defense counsel's failure to raise

this issue on appeal did not violate Cirilo-Muñoz's constitutional

rights.

              In my opinion, these recurrent conclusions by the trial

judge      are     not    only   legally     erroneous,        which    the   majority

recognizes, but also demonstrate an obstinate predisposition to

reach a set conclusion in this case. Resentencing should therefore

take place before a different judge.                 See, e.g., United States v.

Muñiz, 49 F.3d 36, 41 (1st Cir. 1995) (remanding for resentencing

by a different judge where, inter alia, the original judge based

his sentence on unsupported factfindings); Mawson v. United States,

463 F.2d 29, 31 (1st Cir. 1972) ("It is difficult for a judge,

having once made up his mind, to resentence a defendant, and both

for the judge's sake, and the appearance of justice, we remand this

case    to    be     redrawn.").       I    simply    see   no    reason      why   this

"reassignment would entail waste and duplication out of proportion

to   any     gain    in   preserving       the    appearance     of    fairness."    See

Maldonado Santiago v. Velázquez García, 821 F.2d 811, 832-33 (1st

Cir. 1987).         See also United States v. Hanono-Surujun, 914 F.2d 15

(1st Cir. 1990) (remanding to a different judge where a rule has

not been fully complied with and there has been a sharp upwards

departure from the Guidelines).




                                           -22-
           Even stretching it to the breaking point, Cirilo-Muñoz's

"participation" and his knowledge of events was minimal and paled

when compared to the actions of Lugo -- who not only was the leader

and principal culprit, even if the government gave him a sweetheart

deal -- but he was the cold-hearted killer of Officer Mejías.     Yet

Cirilo-Muñoz received a sentence of life imprisonment as compared

with the twenty years imposed upon Lugo.      This, after the district

judge's "possible misperception[s]" led him to make "a formal

finding that the victim was a police officer when he assisted in

the venture.     But there is no detailed discussion of the evidence

on which such a finding might rest."      Maj. op. at 8. Of course,

there is no evidence in the record that Cirilo-Muñoz possessed the

requisite knowledge that the district judge attributed to him,

unless he acquired it by extra sensory perception, or that he

"assisted in the venture,"13 unless this term has acquired a new

meaning.

           This is a case which started out on the wrong foot.

Unfortunately it appears destined to continue to suffer permanently

from this handicap. "Nothing is more damaging to a new truth than

an old error."    Goethe, Spruche in Prosa.




     13
      The evidence highlighted by the majority -- appellant's
presence in the cemetery when Ramírez shot Mejías in the head, who
was presumably already dead, as well as appellant receiving
Mejías's money and driving Lugo home -- would make Cirilo-Muñoz an
accessory after the fact, 18 U.S.C. § 3, not an aider and abetter.

                                 -23-
