UNITED STATES OF AMERICA, Appellee, v. AMANDA FORD, Defendant, Appellant.
No. 22-1276
United States Court of Appeals For the First Circuit
July 12, 2023
Before Montecalvo and Thompson, Circuit Judges, and Carreno-Coll,* District Judge. *Of the District of Puerto Rico, sitting by designation.
Syrie D. Fried, with whom Good, Schneider, Cormier, and Fried was on brief, for appellant.
Donald C. Lockhart, Assistant United States Attorney, with whom Rachael S. Rollins, United States Attorney, was on brief, for appellee.
CARRENO-COLL, District Judge. In this sentencing appeal, Amanda Ford faults the district court for failing to rule on her factual disputes and attributing to her a cache of fentanyl found in her boyfriend‘s home. Seeing no error as to the former and no clear error as to the latter, we affirm.
I.
Because Ford pleaded guilty, we draw the facts from the change-of-plea colloquy, undisputed portions of the presentence investigation report (“PSR“), and sentencing hearing. See United States v. Rivera, 51 F.4th 47, 49 (1st Cir. 2022). Pedro Baez ran a drug-trafficking organization with the help of his son and his girlfriend, Ford. Tipped off, law enforcement officers wiretapped the organization‘s phones and set up controlled purchases. Two of them involved Ford. During the first controlled purchase, she delivered 2.5 grams of a heroin-fentanyl mixture to a cooperating witness who had contacted her at Baez‘s direction. During the second, she drove Baez‘s son to a meeting place where he delivered 6.3 grams of crack cocaine and 5.1 grams of fentanyl to a cooperating witness. The exchange took place in the car she was driving. In between these purchases, she told a customer who wanted to buy drugs to contact Baez‘s son.
Ford also kept an eye out for police around Baez‘s home. The government said in its sentencing memo that it had recorded calls showing that Ford would contact
Law enforcement officers arrested Ford and Baez early in the morning at his home. They found 144.3 grams of a heroin-fentanyl mixture in his bedroom and another 1.35 grams inside a purse in a bedroom that she used.
A grand jury charged Ford, and others, with offenses stemming from Baez‘s drug-trafficking organization. She entered a straight guilty plea to Count One of the Superseding Indictment, which charged her with conspiring to distribute and possess with intent to distribute 1 kilogram or more of heroin, 280 grams or more of cocaine base, 400 grams or more of fentanyl, and 500 grams or more of cocaine. She agreed with the government‘s recitation of what it would have proved at trial, except its statement that she could be held responsible for the cache of drugs found in Baez‘s home.
Adding together the drugs from the two controlled purchases and the 145.65 grams of fentanyl1 found in Baez‘s home, the PSR set Ford‘s base-offense level at 26, see
The parties’ arguments at sentencing will make more sense if we pause to explain why the PSR attributed to Ford the cache of fentanyl found in Baez‘s home. In a drug conspiracy, each coconspirator can be held responsible not only for the drugs that she personally handled but also for the drugs that others handled, so long as those acts were reasonably foreseeable to her, committed within the scope of the conspiracy, and in furtherance of the conspiracy. United States v. Soto-Villar, 40 F.4th 27, 31 (1st Cir. 2022); see also
At sentencing, the judge said that he had read the PSR, the parties’ sentencing memos, and Ford‘s letters of support. He then noted that the PSR set Ford‘s Guidelines sentencing range at 46 to 57 months of imprisonment. Ford reiterated her objection to the PSR attributing to her the cache of fentanyl found in Baez‘s home -- without it, her base-offense level would be much lower. Although she was Baez‘s girlfriend and sometimes stayed the night at his home, she said that the PSR was incorrect to say that she lived there. And so
The government responded that Ford had received in discovery about 2.5 years earlier the non-PSR information in its sentencing memo. It then defended the probation officer‘s rationale for attributing to her the cache of fentanyl seized on the day of her arrest: The cache, it argued, was reasonably foreseeable because she was Baez‘s girlfriend, worked closely with him, stayed at his home, was involved in taking orders and conducting sales, and delivered drugs for him.
After listening to the parties, the judge said that he was not going to adjust the PSR‘s Guidelines calculation because he believed that it was correct. He then imposed a downwardly variant sentence of 24 months of imprisonment. In the statement of reasons, a form issued after judgment is entered, he checked a box that said that he had adopted the PSR without change.
II.
Ford advances two claims of error. First, she argues that the district court violated
A.
The parties disagree about the proper standard of review for Ford‘s Rule 32(i)(3)(B) claim. Because in the past we have reviewed such claims de novo, see, e.g., United States v. Gonzalez-Velez, 587 F.3d 494, 508-09 (1st Cir. 2009), Ford contends that de novo review applies here. The government counters that her failure to object below constrains us to review for plain error only. As we have done before, we leave this question for another day. See United States v. Gonzalez, 736 F.3d 40, 42 (1st Cir. 2013) (reserving the question of which standard of review applies to an unpreserved Rule 32(i)(3)(B) claim because the claim failed even under de novo review). For “even under the more appellant-friendly lens of de novo review,” her claim fails. See id.
This case is on all fours with Romero. In Romero, we held that the judge implicitly resolved the defendant‘s factual protests against the PSR‘s inclusion of a sentencing enhancement and rejection of a minor-role reduction because the judge stated on the record that he had read the PSR and parties’ sentencing memos, listened to each side discuss the disputed issues, and adopted the PSR without change (as indicated in his statement of reasons). Id. Here, the same things happened: The judge stated that he had read the PSR and parties’ sentencing memos, listened to each side discuss its take on Ford‘s role in the conspiracy, stated that the PSR‘s Guidelines calculation needed no adjustment, and checked the box in his statement of reasons that said that he had adopted the PSR without change, which necessarily included its rejection of Ford‘s factual protests against attributing the cache of fentanyl to her.
Our dissenting colleague argues that we misconstrue Romero because, in that case, there were “other indicia that the district court complied with Rule 32(i)(3)(B).” But the dissent distinguishes Romero based on considerations that played no role in our ultimate analysis. To be sure, we noted in Romero that the court (1) “arguably addressed Romero‘s minor-role-reduction request” by stating that his role in the organization was “very important” and (2) stated further that it was “not sure” whether Romero‘s objections mattered because of the government‘s below-Guidelines sentencing recommendation. 906 F.3d at 209-10. But we did not say that those statements helped show that the court had implicitly resolved Romero‘s objections. See id. Instead, we held that the record reliably showed that the court had “implicitly resolved Romero‘s objections against him” because it had adopted the PSR without change, which meant that it had “accepted the PSR‘s sentencing-range calculations, including its rejection of Romero‘s [objections].” Id. at 210. And we knew that the court had adopted the PSR without change “because of the judge‘s written statement of reasons.” Id. So the dissent is rewriting what mattered in Romero to distinguish it from this case.3
One final point. Although the case law above suggests that even a minimal indication that the judge implicitly resolved the factual disputes is sufficient to avoid remand, we remind district courts that
But in the end, the record here reliably shows that the judge implicitly resolved Ford‘s factual disputes about whether the cache of fentanyl is attributable to her. Thus, her Rule 32(i)(3)(B) claim fails.
B.
Ford claims next that the judge erred by attributing to her the cache of fentanyl found in Baez‘s home. The parties agree that she preserved this claim. Preserved claims that the judge erroneously attributed drugs to the defendant are reviewed for clear error. Soto-Villar, 40 F.4th at 33. “Under this deferential standard,” we must accept the judge‘s drug-quantity finding “unless, on the whole of the record, we form ‘a strong, unyielding belief that a mistake has been made.‘” Id. (quoting United States v. Cintron-Echautegui, 604 F.3d 1, 6 (1st Cir. 2010)).
The amount and type of drugs involved in a drug-trafficking conspiracy play a key role at sentencing. Id. at 31. Indeed, they generally control a defendant‘s
jointly undertaken criminal activity.” Cintron-Echautegui, 604 F.3d at 5 (quoting
Ford does not challenge being held responsible for the drugs involved in the controlled purchases that she participated in. She challenges only the judge‘s finding that the cache of fentanyl found in Baez‘s home on the day of her arrest constitutes relevant conduct and is thus attributable to her. But before we review the judge‘s finding, we need to resolve a dispute about the facts that he could rely on in making that finding: Ford argues that he could not rely on the non-PSR information in the government‘s sentencing memo because she contested it. She is right, in part.
“[A] sentencing judge, in her substantial discretion, can consider any evidence with sufficient indicia of reliability and can rely upon ‘virtually any dependable information.‘” United States v. Berrios-Miranda, 919 F.3d 76, 81 (1st Cir. 2019) (quoting United States v. Doe, 741 F.3d 217, 236 (1st Cir. 2013)). These principles apply with full force to drug-quantity findings. Cintron-Echautegui, 604 F.3d at 6. The government‘s statements,
“not adequately challenged by defense counsel who has a full opportunity to respond, may constitute reliable information” for sentencing purposes. United States v. Montalvo-Febus, 930 F.3d 30, 34 (1st Cir. 2019) (quoting United States v. Diaz-Arroyo, 797 F.3d 125, 130 n.3 (1st Cir. 2015)).
Diaz-Arroyo illustrates this point. Diaz appealed his sentence for being a felon in possession of a firearm. The PSR noted that he had been charged with murder and attempted murder and that those charges had been dismissed. Diaz-Arroyo, 797 F.3d at 127. But the PSR did not say why they were dismissed. Id. At sentencing, the prosecutor recommended a top-of-the-Guidelines sentence. Id. She explained that the charges “were dropped only after the sole surviving witness to the incident (a minor who was able positively to identify the defendant as the shooter) was threatened and fled the jurisdiction.” Id. In response, defense counsel maintained the defendant‘s “innocence with respect to those charges” and stated that “the charges had been dropped because the witness had been in witness protection and did not appear to testify.” Id. On appeal, we held that the court was “entitled to take into account the prosecutor‘s representations” about why the charges had been dismissed because defense counsel “did not directly challenge [her] account of the circumstances surrounding the[ir] dismissal.” Id. at 130 n.3. So, too, here.
where Baez talked to his son about her role in getting the money to pay a coconspirator for a half kilogram of cocaine. To be sure, she generally objected to the information in the government‘s sentencing memo on the grounds that it was not in the PSR and that she should not have to rush to check it the day before sentencing. But a sentencing court is not limited to the information in the PSR. See Doe, 741 F.3d at 236. And she did not say that she needed more time, let alone ask for more time, to review the non-PSR information. See United States v. Mathur, 624 F.3d 498, 508 (1st Cir. 2010) (“[A] defendant‘s claim of unfair surprise at sentencing is ‘severely undermined, if not entirely undone, by his neglect to ask the district court for a continuance to meet the claimed exigency.‘” (quoting United States v. Diaz-Villafane, 874 F.2d 43, 47 (1st Cir. 1989))). Because Ford did not “directly challenge” the non-PSR information in the government‘s sentencing memo -- besides, perhaps, the call about the large cocaine transaction6 -- the judge could rely on it. See Diaz-Arroyo, 797 F.3d at 130 n.3. And because the government argued that the information supports a finding that the cache of fentanyl is attributable to her, and the judge made that finding, we will
factor that information into our review. See United States v. Jimenez-Beltre, 440 F.3d 514, 519 (1st Cir. 2006) (en banc), abrogated on other grounds by Rita v. United States, 551 U.S. 338 (2007) (“[A] court‘s reasoning can often be inferred by comparing what was argued by the parties or contained in the pre-sentence report with what the judge did.“).
There is no clear error in the judge‘s decision to hold Ford responsible for the cache of fentanyl in Baez‘s home. The judge could reasonably find that Ford had agreed with Baez to distribute a heroin-fentanyl mixture on an ongoing basis. The judge could also reasonably find that Baez‘s possession of the cache was in furtherance of that agreement and reasonably foreseeable to Ford. There are two calls in the record, almost one year apart, where Baez told customers who wanted to buy a heroin-fentanyl mixture either to call Ford or that Ford would deliver the mixture to them. Following the first call, Ford delivered 2.5 grams of that mixture to a cooperating witness. The second call took place only three days before Ford was arrested in Baez‘s home, where the cache of that mixture was found. So the judge could reasonably infer that Ford and Baez regularly dealt in a heroin-fentanyl mixture, including at the time of their arrest, and therefore that it was reasonably foreseeable to her that he had a cache of that mixture awaiting distribution. Indeed, the judge could even infer that Ford knew that Baez kept the cache in
his home because she warned him when state troopers went by there with a drug-sniffing dog. See Cintron-Echautegui, 604 F.3d at 7 (“[T]he court is entitled to draw reasonable inferences from information . . . in the sentencing record.“). It follows that, under a reasonable view of the record, Baez‘s possession of a heroin-fentanyl mixture in distributable quantities in his home was within the scope of Ford‘s conspiracy agreement, in furtherance of it, and reasonably foreseeable to her. Where, as here, a view of the record is reasonable, there can be no clear error in the judge‘s
Ford‘s flagship argument about why she should not be held responsible for the cache of fentanyl in Baez‘s home has clay feet. She contends that her relationship with Baez does not automatically make her responsible for everything that he did. But that is not what happened here. To be sure, merely being in a relationship with someone does not show that one agreed to participate in the other‘s illicit activities. See United States v. Candelaria-Silva, 714 F.3d 651, 657-58 (1st Cir. 2013). Given the evidence about her role in the conspiracy, however, she is not being saddled with Baez‘s bad acts merely because she was dating him. And to the extent that she argues that she cannot be held responsible for the cache because the record does not show that she knew about it, that argument is a non sequitur. Reasonable
foreseeability is broader than knowledge. United States v. Pinkham, 896 F.3d 133, 137 (1st Cir. 2018). Because Baez‘s possession of the cache of fentanyl with intent to distribute it was reasonably foreseeable to Ford, committed within the scope of the conspiracy that she had agreed to, and in furtherance of that conspiracy, she is responsible for it.
As for the drugs inside the purse in the bedroom that Ford used, those are attributable to her, too. Because those drugs were also a mixture of heroin and fentanyl and were in the same house as the cache, the judge could reasonably infer that they were once part of the cache.7 Because the cache is attributable to Ford, it does not matter that she (or someone else) later removed some of it for personal use. See Pinkham, 896 F.3d at 138; see also United States v. Marks, 365 F.3d 101, 105-06 (1st Cir. 2004) (holding that drugs the defendant consumed were nonetheless attributable to him because he had acquired them “with the intent that [they] would or could be distributed“). In any event, the 1.35 grams in the purse do not matter. Subtracting them from Ford‘s total drug weight leaves her with the same base-offense level (405.6 kg total converted drug weight minus 3.39 kg
converted drug weight equals 402.21 kg total converted drug weight). See
III.
For the reasons above, we affirm Ford‘s sentence.
-Dissenting Opinion Follows-
MONTECALVO, Circuit Judge, dissenting. By finding, on this record, that the district court met its Rule 32(i)(3)(B) obligations to resolve controverted matters at sentencing that are material to the court‘s analysis, I believe the majority‘s interpretation of the rule is at odds with its plain text and in tension with its procedural objective. Not only does this interpretation undercut Rule 32(i)(3)(B)‘s purpose by making it an ineffective procedural safeguard against a sentence based on unsupported
This case turns on the scope of the district court‘s obligation under
ambiguity as to the factual record considered at sentencing. United States v. Van, 87 F.3d 1, 3 (1st Cir. 1996). Because the court made no express rulings on the disputed facts in this case, the question before us is whether the “sentencing record” compels a finding that the district court “implicitly resolved” the disputed facts and ruled on the objected-to portions of the PSR at sentencing. United States v. Carbajal-Valdez, 874 F.3d 778, 783 (1st Cir. 2017); see also Van, 87 F.3d at 3.
This is where I part ways with the majority‘s analysis. The majority views our decision in United States v. Romero, 906 F.3d 196 (1st Cir. 2018), as directing its conclusion that the district court implicitly resolved the contested facts underpinning Ford‘s objections to the PSR. I disagree.
Here, the parties agree that the district court made no explicit findings on (i) the drug quantity attributable to Ford or (ii) the various subsidiary factual disputes bearing on that attribution analysis.8
The sentencing hearing transcript is also clear that the full extent of the district court‘s discussion of these issues at sentencing was its conclusion that “I am not going to adjust the guidelines. I think they‘re properly calculated.”
Determining whether the court implicitly resolved these disputes in a particular way requires us to ask if adoption of the PSR‘s guidelines calculation -- taken with knowledge that the district court read the PSR and the parties’ sentencing memoranda and listened to the parties’ arguments -- “eliminate[s] any guesswork about what facts the sentencing court envisioned as the basis for the [attribution of the disputed drug quantity].” Carbajal-Valdez, 874 F.3d at 784. On this record, I see no way of getting to yes. Here, where Ford‘s PSR objections disputed several material facts and legal conclusions underpinning the guidelines calculation, and where the full extent of the court‘s engagement with these issues was its adoption of the PSR‘s guidelines calculation without explanation, it seems evident that “[t]he PS[R] and the transcript of the [sentencing] hearing, taken together, [are not enough to] furnish clear guidance as to the basis on which” the district court concluded that attributing the disputed quantity to Ford was
aboard the vessel which carried controlled substances,’ makes manifest that the court impliedly adopted the findings contained in the PS[R]“).
Perhaps recognizing this deficiency too, the majority opinion makes clear that the principal basis for finding the court implicitly ruled on the disputed portions of the record is not in the sentencing record. Rather, the majority‘s conclusion turns on the fact that the district court “checked the box in his statement of reasons that said that he had adopted the PSR without change.” But the Statement of Reasons and Final Judgment are form documents that the district court completes after the sentence has been imposed, outside the presence of the defendant, and as part of a closed administrative process. Meanwhile,
procedural reasonableness of the sentence -- for appeal.9 See United States v. Ramos-Carreras, 59 F.4th 1, 5 (1st Cir. 2023) (“[I]t is axiomatic ‘that a convicted defendant has the right to be sentenced on the basis of accurate and reliable information, and that implicit in this right is the opportunity to rebut the . . . evidence and the information’ to be considered by the court.” (quoting United States v. Rivera-Rodriguez, 489 F.3d 48, 53 (1st Cir. 2007))); see also United States v. Berzon, 941 F.2d 8, 18 (1st Cir. 1991) (“Fed. R. Crim. P. 32 . . . ‘embodies the
congressional intent to assure a defendant‘s due process rights in the sentencing process.‘” (quoting United States v. Curran, 926 F.2d 59, 61 (1st Cir. 1991))).
The majority asserts that Romero directs its conclusion. But I do not read Romero to say that the mere notation of the court‘s adoption of the PSR without change in the later-filed Statement of Reasons alone suffices as a basis for finding that the court implicitly resolved the objections to the PSR and thus complied with
First, the Romero court noted that “the judge arguably addressed Romero‘s minor-role-reduction request at sentencing when he said he ‘agree[d] with the government‘s characterization that . . . Romero‘s role was very important in the organization.‘” 906 F.3d at 209-10. This factual finding alone was likely a sufficient basis for concluding the court complied with its fact-finding obligations under
Second, and perhaps more importantly, Romero objected to the PSR‘s application of the obstruction of justice enhancement and rejection of the minor-role reduction based on the undisputed facts as stated in the PSR. Id. at 210-11. Nothing in our decision indicates that Romero was challenging the reliability of the underlying facts themselves. Ford, on the other hand, objected to the factual accuracy of material information in the PSR, including facts Probation later added in its responses to her objections.
Therefore, the question before the court in Romero more closely resembled a question of law -- whether the district court implicitly ruled on whether Probation‘s application of the enhancement/reduction was in accord with the law in light of the undisputed facts. See id. at 210-11. Whereas here, we are dealing with a dispute about the underlying facts material to the attribution analysis. Without knowing how or whether the district court resolved the factual disputes, we cannot effectively review the legal conclusion as to attribution on appeal. And checking a box on the Statement of Reasons noting the court‘s adoption of the PSR without change is neither a substitute for resolving disputes at sentencing nor a reliable basis for inferring resolution of the facts in a particular way.
Aware of this issue and concerned that their decision could invite courts to improperly avoid their duty to resolve
material facts at sentencing, the majority wisely instructs district courts to “make explicit rulings” on factual disputes at sentencing notwithstanding its holding that “even a minimal indication that the judge implicitly resolved the factual disputes is sufficient to avoid remand.” But such an admonishment is of little use where the court‘s decision simultaneously affirms based on a sentencing record that even when read as a whole lacks minimal indicators -- let alone a reliable showing that the judge implicitly resolved the disputed facts. And I fear that the court‘s decision today will hinder our ability to enforce, as a procedural matter, the need for district courts to make clear findings at sentencing, as well as lower the bar for concluding that the “record read as a whole ‘reliably shows’ that [a] judge implicitly resolved” objections against a defendant. See Romero, 906 F.3d at 210.
In sum, by overlooking the differences in what the specific objections in Romero were and how the district court in Romero engaged with them, and instead treating the record here as “on all fours with Romero,” I am concerned that the majority has significantly narrowed the district court‘s obligations to resolve factual disputes
For all these reasons, I would vacate the sentence and remand to the district court with instructions to (i) state clearly on the record the factual basis for the court‘s decision on attribution and (ii) resentence in light of the court‘s findings regarding the disputed facts relating to attribution.
I therefore respectfully dissent.