NO. 95-3105





CORNELIO xxxxxxx,






Pursuant to Fed. R. App. P. 28(f) and Circuit Rule 28(a)(5),

pertinent statutes are set forth in the Addendum hereto.


The District Court had jurisdiction under 18 U.S.C. § 3231. A notice of appeal having been timely filed, this Court has jurisdiction pursuant to 28 U.S.C. § 1291.


1. Whether the judge erroneously concluded at resentencing that, despite the claim that former counsel was ineffective in failing to oppose the three-level increase under U.S.S.G. § 3B1.1(b) and despite the subsequent amendment of the commentary to that section, this Court's remand did not permit consideration of the record's sufficiency to support a finding that Mr. xxxxxxx managed or supervised at least one other participant in the charged conspiracy to distribute crack cocaine.

2. Whether the judge erred, under 18 U.S.C. § 3553(b) and U.S.S.G. § 5K2.0, in refusing to give meaningful consideration to Mr. xxxxxxx's request for a downward departure from the 324-month minimum prison term in light of the more onerous prison conditions Mr. xxxxxxx would suffer due to his status as a deportable alien.

3. Whether the judge erred in failing to recognize his clear authority, under 18 U.S.C. § 3553(b) and U.S.S.G. § 5K2.0, to depart downward from the 324-month minimum prison term on the ground that the ramifications of the extreme disparity in the quantities of cocaine base and of powder cocaine required to trigger given sentences, which the Sentencing Commission had recently declared "unfair" and the judge called "unwise," were "not adequately taken into consideration" in the formulation of the Guidelines.


Procedural Background

Mr. xxxxxxx was convicted by a jury of one count of conspiracy to distribute cocaine base and one count of distribution of cocaine base (21 U.S.C. §§ 841(a)(1) and (b)(1)(A)(iii) and 846). He previously appealed his convictions and his original concurrent sentences to life imprisonment, which were imposed on July 18, 1991. This Court, in an opinion and a judgment filed on May 31, 1994, affirmed Mr. xxxxxxx's convictions, but explicitly vacated the judgment as to him and remanded the case for resentencing, pointing out, inter alia, that the attribution of a particular two kilograms of cocaine base to Mr. xxxxxxx had not been supported by the specific findings of a joint agreement and reasonable foreseeability that U.S.S.G. § 1B1.3 requires. United States v. Saro, 24 F.3d 283, 288-292 (D.C. Cir. 1994).

On June 26, 1995, pursuant to the remand and upon Mr. xxxxxxx's request, the District Court judge heard preliminary arguments on certain issues to be determined relative to the resentencing. Defense counsel's most fundamental point that day was that under a Sentencing Guidelines amendment that had become effective since the remand was ordered, it was no longer material whether more than 1.5 kilograms of cocaine base were attributable to Mr. xxxxxxx. Footnote The former quantity-determined base offense levels of 42, for 15 kilograms or more, and 40, for 5 to 15 kilograms, had been eliminated. The highest quantity-determined offense level under U.S.S.G. § 2D1.1(c) was now 38, for 1.5 kilograms or more, which meant that even with a three-level increase for an aggravated role in the offense, Mr. xxxxxxx's sentence range was now 324-405 months; he was no longer subject to a life sentence.

The Government initially argued that the amended Guideline should not be applied, and it opposed Mr. xxxxxxx's additional argument, discussed infra, that particularly in light of an amendment to the commentary of U.S.S.G. § 3B1.1 and certain new evidence, the judge should reconsider the three-level increase. The judge consented to receive legal memoranda and scheduled a further hearing.

By July 20, 1995, when that hearing took place, the Government had come to agree with Mr. xxxxxxx and the Probation Department that the amended drug-quantity Guideline applied, and that Mr. xxxxxxx therefore was no longer subject to a life sentence. The judge concurred. However, the Government successfully opposed the defense's other arguments, discussed infra, and the judge proceeded immediately to sentence Mr. xxxxxxx to the 324-month minimum prison term for offense level 41 upon each conviction, the two terms to be served concurrently. On July 24, 1995, Mr. xxxxxxx moved pursuant to Fed. R. Crim. P. 35(c) for correction of the sentence, on grounds discussed infra. In an order dated August 2, 1995 and entered on the criminal docket on August 9, 1995, the judge denied that motion. Mr. xxxxxxx appeals that order as well as the judgment.

Pertinent Statements in the Presentence Report

The revised presentence report ("PSR") used at Mr. xxxxxxx's original sentencing on July 18, 1991 was not revised further with respect to the issues of fact and Guidelines application raised below with which the instant appeal is concerned. Footnote

   The following excerpts from the PSR contain statements that

Mr. xxxxxxx sought to have the judge reconsider at the



¶ 32. The drug ring was a loose-knit organization, which was composed of several groups of individuals, each with its own leader/administrator. These administrators were independent dealers, who generally had their own source of supply. Both Carlos Saro and Cornelio xxxxxxx are identified as independent dealers. On occasion, when sources ran dry, the group leaders/independent dealers would supply each other with drugs. They would also have their employees assist each other in various ways (interpreting, selling, or transporting drugs, etc.) to maintain the operation as a whole. In this respect, they were both competitors and cooperating persons in the same enterprise.


¶ 34. . . . . Miguel Profeta, the principal administrator in this drug enterprise[,] admitted that he employed Terry Mitchell. . . .


¶ 40. . . . . Mr. xxxxxxx assisted in the aforementioned September 17, 1990 sale by storing the cocaine, supplying several hundred grams of cocaine base to Mr. Profeta, obtaining a rental car for Mr. Profeta to use in the proposed two kilogram sale, and instructing two workers, Mr. Ramirez and Mr. Carpio, to assist in the drug sale. . . .


¶ 44. As indicated earlier, Miguel Profeta was the principal administrator in this drug enterprise. During briefings with the government, he admitted to supervising, managing, or directing the activities of numerous others to aid him in his drug trafficking business. Carlos Saro and Cornelio xxxxxxx were also managers, who supervised their own businesses, and who would on occasions act in cooperation with one another, as on the September 17, 1990, transaction to distribute cocaine.


¶ 48. According to testimony and sworn statements made by convicted coconspirator Miguel Profeta, Mr. Profeta admitted that he controlled, supervised, directed, managed and/or supplied cocaine to at least 13 persons in this conspiracy. Persons so involved have been identified in the Statement of Facts in support of Mr. Profeta's plea as Ana Lopez, Victor Loriano, Ramael Arcia, Jerry Calderon, Terry Mitchell, Carlos Saro, Leonardo Guillon, Wilfredo Guillon, Kelly Guillon, Blanca Montanez, Cornelio xxxxxxx, Daniel Ramirez, Manuel Carpio, and Hector Chal. Many of these persons, particularly Hector Chal, Jerry Calderon, Carlos Saro, and Cornelio xxxxxxx, supervised their own group [sic], who distributed cocaine at the retail level.


¶ 49. According to the debriefing reports, the Grand Jury testimony, telephone recordings, and the trial testimony of Terry Mitchell, Cornelio xxxxxxx was characterized as a "boss." On August 31, 1989, the videotaped meeting with an undercover agent shows Mr. xxxxxxx taking over the negotiations from Carlos Saro for a 3 kilogram sale of cocaine base. Blanca Montanez, as well, testified that Messrs. xxxxxxx and Saro supplied her and others with cocaine. She also explained that Mr. xxxxxxx often dispatched Daniel Ramirez to deliver quantities of cocaine her [sic]. John Chernak also stated that over a period of several years, Mr. xxxxxxx supplied Mr. Chernak with large quantities of cocaine.


¶ 50. Mr. xxxxxxx supplied cocaine to, and controlled, supervised, or directed the activities of at least the following persons while engaged in the cocaine conspiracy: Terry Mitchell, Blanca Montanez, Daniel Ramirez, Manuel Carpio, and John Chernak, and at times, Carlos Saro, although Messrs. Saro and xxxxxxx were regarded as partners.


¶ 52. The government characterizes Cornelio xxxxxxx and Carlos Saro's role as lieutenants in the Profeta organization. The organization was flexible and did not always adhere to a clearly defined hierarchy and structure. At times, its members would band together in a loose partnership to distribute cocaine. For example, on September 17, 1990, Carlos Saro and Cornelio xxxxxxx contributed to Profeta portions from their own supplies of cocaine to make the two kilograms of crack that Mr. Profeta eventually distributed.


¶ 61. Adjustment for Role in the Offense: Since the defendant managed and supervised a criminal activity involving 5 or more participants, guideline Section 3B1.1(b) adds a 3 level increase in the base offense level (see paragraph 49 [sic] of this report). Footnote

Arguments and Rulings Below

Mr. xxxxxxx's memorandum concerning issues of law and fact pertinent to his resentencing, filed June 30, 1995, argued, inter alia, that the PSR's findings concerning Mr. xxxxxxx's role in the offense were facially insufficient and were not supported by the evidence in the record, including the defense's recently obtained Spanish transcript and English translation of the August 31, 1989 negotiations. Footnote In writing and orally, Mr. xxxxxxx contended that his former counsel, Charles F. Stow, III, Esq., was ineffective in failing to challenge the aggravated role increase and that in any event, the judge should reconsider the propriety of the three-level role increase because of the intervening amendment to the pertinent commentary (June 30, 1995 memorandum at 23 n.12, 25; Tr.6/26 26-27; Tr.7/20 9-10). Footnote

The judge addressed this issue as follows:

On behalf of the defendant, it is contended that I can and should review the 3-level upward adjustment under 3B1.1 for Mr. xxxxxxx's role as manager or supervisor in the criminal activity.

I decline to do so. First, the Court of Appeals has explicitly rejected the contention that a 3-level increase should not apply to the defendant. I would refer to 24 Fed. 3rd 283-285, note 2. The second[, the] Court of Appeals remanded the case to the Court "for further considerations [sic] of [defendant's base offense level]" [sic] and nothing more.

This Court will not engage in de novo review of the entire sentencing process in this case where the Court of Appeals has specified that this Court's review on resentencing is limited to the base offense level calculations.

(Tr.7/20 12-13). The judge did not refer to Mr. xxxxxxx's claim that former counsel was ineffective in this context, to the subsequent amendment of the Guideline commentary, or to the claimed existence of new evidence supporting Mr. xxxxxxx's position.

Mr. xxxxxxx also argued for a reduction of sentence pursuant to United States v. Smith, 27 F.3d 649 (D.C. Cir. 1994), on the ground that as a deportable alien, he would be denied beneficial conditions of confinement for which he would otherwise be eligible because of his good prison record (June 30, 1995 memorandum at 31; Tr.7/20 at 10-11). This argument had not previously been available because Mr. xxxxxxx's life sentence had precluded the relief now sought. Nevertheless, the judge said he did not believe he had "jurisdiction" to consider such a departure "given the limited nature of the remand and the provisions of Rule 35 of the Federal Rules of Criminal Procedure" (Tr.7/20 13). He went on to say, "Assuming arguendo that such power exists, the Court sees no valid basis upon which to exercise it and, accordingly, declines to depart downward on that basis" (Tr.7/20 13).

Finally (though first chronologically), Mr. xxxxxxx unsuccessfully requested a postponement of the resentencing until after November 1, 1995, the designated effective date of the recent Guidelines amendment that had removed the disparity between the sentences incurred by conviction for trafficking in given amounts of cocaine base and cocaine powder on the ground that the disparity was unfair (June 30, 1995 memorandum at 32; Tr.7/20 5-7). The

judge responded,


. . . . It's my personal opinion, Mr. Burns, that the 100-1 ratio is unwise; but it's not up to me to make the law; it's up to me to apply it.

The change in the Guidelines is a speculative thing. I decline to postpone the sentencing. I think we should and will proceed.

(Tr.7/20 7-8).

Mr. xxxxxxx made a related argument four days later, in a timely written motion to correct the sentence pursuant to Fed. R. Crim. P. 35(c) on the ground that the Sentencing Commission had clearly "not adequately taken into consideration" the recently-determined unfairness in the penalties applying to cocaine base when it had formulated the existing Guidelines, which Mr. xxxxxxx urged gave the judge discretion to depart downward under 18 U.S.C. § 3553(b) and U.S.S.G. § 5K2.0 (A. 38). The judge denied the motion on August 2, 1995, holding simply,


. . . . This sentence was imposed according to the law in effect at the time of defendant's sentencing. No "arithmetical, technical, or other clear error" exists that would warrant a "correction" of defendant's sentence.

(A. 43).


Mr. xxxxxxx raises three points in this appeal from his resentencing. All three arise mainly from the District Court judge's conclusion that this Court's remand, which called for additional findings concerning the applicable base offense level, strictly precluded any other findings bearing on the sentence. That general conclusion was erroneous.

Specifically, the judge erred first in refusing to reconsider the propriety of the three-level aggravated role increase, despite former counsel's ineffectiveness in failing to challenge it and despite the intervening amendment of the commentary to U.S.S.G. § 3B1.1. Second, the judge erred in refusing to consider a downward departure based on Mr. xxxxxxx's status as a deportable alien, relief that could not have been granted when a life sentence was mandatory. And finally, the judge erred in failing to perceive that he could depart downward from the minimum prison term because in promulgating the Guidelines with a 100-to-1 ratio between the quantities of cocaine powder and crack cocaine required to reach given offense levels, the Sentencing Commission had not adequately considered the unfairness of the disparity, which it had found in its February, 1995, Special Report and subsequent documents.










A. The Standard of Review

The District Court's ruling as to the limited scope of its authority under this Court's remand of the case should be reviewed de novo, as a purely legal question. See United States v. Chatman, 986 F.2d 1446, 1448 (D.C. Cir. 1993); United States v. Williams, 980 F.2d 1463, 1466 (D.C. Cir. 1992).

B. The Vacatur of the Judgment and Full Remand of the Case for Resentencing Permitted Consideration of the New Issues Concerning the Aggravated Role Increase.

At the end of this Court's opinion in the instant case, it wrote, "We remand xxxxxxx's case for further consideration of his base offense level." 24 F.2d at 292. The accompanying judgment order stated more broadly that "the judgment in No. 91-3225 is vacated and the case is remanded for resentencing, in accordance with the Opinion for the Court filed herein this date." Thus, this Court retained no jurisdiction over the case; it was returned to the District Court with full post-conviction, pre-sentencing status.

Obviously, this Court's opinion did not suggest that the District Court would be concerned with issues other than the quantity-determined base offense level. That is not to say, however, that the mandate necessarily precluded consideration of all other issues, as the Government persuaded the judge to hold. This Court conspicuously did not place a strict limit upon the scope of the judge's authority on remand, as it easily could have done. See United States v. Ponce, 51 F.3d 820, 826 (9th Cir. 1995); United States v. (Stan) Smith, 930 F.2d 1450, 1456 (10th Cir.), cert. denied 502 U.S. 879 (1991). And even a limited remand leaves the trial judge with discretion to reopen issues where the law has changed, new evidence has been found, or serious injustice would otherwise result. United States v. (George) Bell, 5 F.3d 64, 66-67 (4th Cir. 1993); accord United States v. (Richard) Bell, 988 F.2d 247, 250-251 (1st Cir. 1993); cf. United States v. Clark, 8 F.3d 839, 844 (D.C. Cir. 1993) (absent "ex post facto" problem, version of Guidelines in effect at time of resentencing applies). All three qualifying conditions pertained here.

It is true, as the judge noted below (Tr.7/20 13), that this Court made a cursory finding adverse to Mr. xxxxxxx on one issue concerning the aggravated role finding. In a footnote to its ten-page opinion, the Court wrote the following:

xxxxxxx attacks his 3-level increase for acting as a manager or supervisor on the theory that he supervised fewer than five people. He misreads the guideline. Since it is the size of the overall "activity" that matters, a lieutenant who supervised two people in a five-person conspiracy would qualify. . . . [citations omitted]

24 F.3d at 285 n.2. However, that rejected theory, which was only presented for discretionary, "plain error" appellate review, was not reasserted on remand. The District Court's decision was not dictated by the law of the case (contrast United States v. Singleton, 751 F.2d 176, 182-183 (D.C. Cir. 1985)) because Mr. xxxxxxx raised points on the remand that this Court had not addressed: that the 1991 PSR had not applied U.S.S.G. § 3B1.1(b) correctly in its own terms and to the evidence, that a subsequent amendment to that Guideline's application notes had changed the Guideline significantly, that the new transcript of the inconclusive negotiation of August 31, 1989 confirmed Mr. xxxxxxx's claim that he was not in charge then, and that there had been no waiver of such claims at the original sentencing, for trial counsel Stow had been ineffective in failing to attack the three-point increase, which had resulted in his client's initial life sentence and currently has the severe impact of extending his set term of imprisonment by some seven and one-half years. Footnote

This, therefore, is the exceptional type of case where a judge on a remand for resentencing based on one factor at least has discretion, in order to avoid clear injustice, to consider other material issues presented in a new light. (George) Bell, supra, 5 F.3d at 67; cf. Singleton, supra, 739 F.2d at 183.

C. The Presentence Report's Application of U.S.S.G. § 3B1.1(b) Was Erroneous on its Face.

Paragraph 50 of the PSR, upon which the aggravated role

increase was directly based, read:


50. Mr. xxxxxxx supplied cocaine to, and controlled, supervised, or directed the activities of at least the following persons while engaged in the cocaine conspiracy: Terry Mitchell, Blanca Montanez, Daniel Ramirez, Manuel Carpio, and John Chernak, and at times, Carlos Saro, although Messrs. Saro and xxxxxxx were regarded as partners.

(emphasis added). Footnote As Mr. Stow should have seen, this paragraph was problematic on its face. Because U.S.S.G. § 3B1.3(b) does not include the alternative role of "director" and because "direction" may connote far less control than does "supervision," the inclusion of the disjunctive "or directed" means that the PSR failed to state definitely that the Guideline's requisites had been established. Mr. xxxxxxx could have "directed" a powder cocaine buyer to have a certain amount of money ready to pay at a certain time and place; that would not constitute management or supervision which could support a three-level increase under § 3B1.1(b).

Paragraph 49 said that Mr. xxxxxxx "was characterized as a 'boss'" by Terry Mitchell--not that he was in fact a boss--and it failed to note that the "cocaine" Montanez and Chernak said they got from Mr. xxxxxxx was powder, not crack. Moreover, as discussed further below, the evidence does not support paragraph 49's statement that the tape of August 31, 1989 showed Mr. xxxxxxx "taking over" negotiations for a possible crack sale from Saro.

At the same time, the PSR contained numerous statements suggesting that Mr. xxxxxxx was not a supervisor or manager of any other participant in the charged criminal activity--the crack distribution conspiracy. The PSR said that Saro and Mr. xxxxxxx were "independent dealers" and "competitors," as well as occasional "cooperating persons in the same enterprise" and "partners" (¶¶ 32, 50, 52). The PSR said that Profeta admitted that Mitchell was his employee (¶ 34). The PSR also said that Saro and Mr. xxxxxxx supervised their own businesses, but it did not say whom, if anyone, they supervised in those businesses (¶¶ 48, 49). And while the PSR reported the Government's contention that Saro and Mr. xxxxxxx were "lieutenants in the Profeta organization," the PSR writer did not explicitly so find, and it was noted in the same paragraph that the organization lacked an ongoing, "clearly defined hierarchy" and that at times such as the sale on September 17, 1990, the only transaction for which Mr. xxxxxxx was convicted, the organization operated as a "loose partnership" (¶ 52).

These previously neglected, unwaived points were properly cognizable on the remand, and it was error for the judge to refuse to consider them.

D. The Amendment of the Pertinent Guideline Commentary Justified Reconsideration of the Finding.

Beyond what Mr. Stow failed to see in the PSR and the evidence, more of which is discussed below, it was appropriate for the judge on the remand to consider Mr. xxxxxxx's role in the offense because the application notes to § 3B1.1 have been significantly amended since the original sentencing, and because the PSR's findings may have been based largely on the theory that the amendment eliminated. In the volume of amendments effective November 1, 1993, it was explained regarding Amendment 500 that there had been a conflict between circuits as to whether one could be found a manager or supervisor of a criminal conspiracy's business without actually managing or supervising any other people. To resolve the conflict, the text as amended stated, in pertinent part,

To qualify for an adjustment under this section, the defendant must have been the . . . manager or supervisor of one or more participants.

U.S.S.G. § 3B1.1(b), comment. (n.2). The Eighth Circuit has recognized that, as it was meant to do, this change made a difference in the Guideline's applicability. United States v. Reedy, 30 F.3d 1038 (8th Cir. 1994).

Mr. xxxxxxx was convicted of conspiracy, so we are constrained to assume that to some extent he shared business with the crack-trafficking enterprise dominated by Profeta. But, as paragraph 32 of the PSR recognized, Mr. xxxxxxx and Saro were also both "independent dealers." Mr. xxxxxxx apparently did manage his own, separate powder cocaine business. And it can be inferred, from the description in PSR paragraph 49 of the scope of Mr. xxxxxxx's "cocaine" business with Montanez and Chernak (which the trial testimony indicated involved only powder), as well as from the inclusion of these two persons and Ramirez in PSR paragraph 50, that running that business in itself was considered by the PSR writer to constitute "management" or "supervision." However, it is now clear, due to the 1993 amendment, that apart from the powder business's being separate from the crack conspiracy, Footnote such mere proprietary conduct was not enough to support the three-level increase for role in the offense.

This means that the correctness of the aggravated role finding depends entirely on whether there was sufficient evidence that Mr. xxxxxxx supervised or managed anyone in the charged crack conspiracy. As Mr. Stow should have discerned and argued, the answer to that question clearly must be in the negative.

E. The Evidence was Insufficient to Support the Aggravated Role Increase.

A buyer-seller relationship is insufficient to support an increase under § 3B1.1. United States v. Maxwell, 34 F.3d 1006, 1013 (11th Cir. 1994); United States v. Yates, 990 F.2d 1179, 1182 (11th Cir. 1993); United States v. Brown, 944 F.2d 1377, 1380-1386 (7th Cir. 1991); but see United States v. Mays, 902 F.2d 1501, 1503-1504 (10th Cir. 1990) (finding role in arranging sales sufficient for two-level increase under catchall subsection (c) of § 3B1.1). PSR paragraph 50 named Mitchell, Montanez, Daniel Ramirez, Carpio, Chernak, and Saro as the subordinates whose existence justified Mr. xxxxxxx's aggravated role increase. But Mitchell, Montanez, and Chernak were clearly no more than customers of Mr. xxxxxxx; moreover, again, the latter two only bought powder from him, so his relationship with them was not shown to have been part of the charged crack conspiracy. See Maxwell, supra, 34 F.3d at 1010-1012.

Mitchell, who himself claimed he was an independent broker, was not managed or supervised by Mr. xxxxxxx in any of the contacts Mitchell described. And he did not know Mr. xxxxxxx well. Montanez, who also testified at trial pursuant to a cooperation agreement, said that she knew Mr. xxxxxxx as "Nay" and had never heard him referred to as "Ming" (Tr.15: 18-19), Footnote which Mitchell said was the only name by which he knew Mr. xxxxxxx. She said that she used to "hang out" with him, Saro, Profeta, Ramirez, and a number of other alleged drug dealers from the Dominican Republic (Tr.15: 19-20, 26, 31). She was addicted to powder cocaine, and she would buy it, sometimes three and one-half grams and sometimes seven or fourteen grams at a time, and resell it, keeping enough for her daily "high" and making enough profit to pay her rent and her other expenses (Tr.15: 22, 30, 57, 80). If she sold seven or more grams, she did not have to sell every day or even every other day (Tr.15: 22, 57). Montanez sold only powder, never crack (Tr.15: 57). On "several occasions" she bought seven or fourteen grams of powder from Mr. xxxxxxx; "a couple of times," Ramirez delivered those drugs to her (Tr.15: 23-24, 59). But she and Ramirez also got high together in her apartment "on a couple of occasions" (Tr.15: 58). Obviously, therefore, Ramirez could have brought the cocaine to her merely as a friend and fellow user, rather than as a subordinate of Mr. xxxxxxx. She bought from Mr. xxxxxxx more often than from Saro, with whom her friendship was not so close (Tr.15: 24). She was not selling drugs as part of an organization (Tr.15: 74). She bought and sold as an individual, never returning profits to Profeta, Mr. xxxxxxx, Saro, or Ramirez, and never working for anyone but herself (Tr.15: 75). Mr. xxxxxxx did not direct her selling activities (Tr.15: 76).

Montanez did not know where Mr. xxxxxxx got his cocaine (Tr.15: 30). She heard he worked as a tailor, making clothes (Tr.15: 83). She knew Profeta sold drugs, but when asked what relationship he had to Saro, Mr. xxxxxxx, and Ramirez, Montanez said "he just used to hang out with our crowd also" (Tr.15: 42). Moreover, she said that although drugs had been in view on a hundred or more occasions when she was with some of her 30 or 40 friends who sold drugs, Manuel Carpio was never one of those present in such circumstances (Tr.15: 86). She only saw Carpio once, in a restaurant, where no drugs or money were around (Tr.15: 87).

John Chernak, a disc jockey and former cocaine powder dealer and user who became a Government informant in March, 1990, testified that about a year before September, 1990 he had met Mr. xxxxxxx, whom he knew as "Nate" and "Cornelius," through John Walters, Chernak's former source of cocaine powder, who was moving away (Tr.10: 155, 162, 170, 177). Footnote Chernak said he bought cocaine powder from Mr. xxxxxxx many times thereafter, "maybe every other day," in ounces and half ounces (Tr.10: 163-164). He would pay Mr. xxxxxxx for the drugs, not anyone else (Tr.11: 45-46). Chernak was using some of the cocaine he bought and reselling the rest (Tr.10: 164-165, 188). He did not sell drugs all the time; he would sometimes stop for periods of two or three months (Tr.11: 25). He had seen Carpio 20 to 25 times with Mr. xxxxxxx, but did not know his name or occupation, and he had never seen Ramirez before trial (Tr.10: 174-175; Tr.11: 30). He said he had seen Saro, in Mr. xxxxxxx's company, occasionally, at most once every week or two, but that he had said no more than "Hello" to him (Tr.10: 175, 181-182).

Chernak had rented a car the weekend before September 17, 1990 to drive to Connecticut to visit his family (Tr.10: 156). On the afternoon of the 17th, at about 3:30 or 4:00 o'clock, Mr. xxxxxxx encountered Chernak in front of Chernak's apartment building and asked to borrow the car; simply because he was a "friend"--Chernak had stopped dealing in drugs in March, 1990--Chernak let him take the car, specifying only that it had to be back by 6:00 so it could be returned to the rental company (Tr.10: 159-161, 163, 207; Tr.11: 22). Mr. xxxxxxx had never borrowed a car from Chernak before, and did not tell Chernak why he was doing so (Tr.10: 160-161). Mr. xxxxxxx was by himself when they met on September 17, 1990 (Tr.10: 161). Chernak knew nothing of the two-kilo transaction that took place later that day (Tr.10: 162).

As for Carpio, Profeta testified at trial that on September 17, 1990, Mr. xxxxxxx told Carpio to go along with Profeta and bring back the car, as well as $15,000, if Profeta should give the money to him (Tr.16: 53, 83). However, Profeta testified that Ramirez only joined them in the car when Carpio saw him on the street and said he should come and drive because he had a driver's license and Carpio did not (Tr.16: 60). And Profeta claimed he never told Carpio and Ramirez that he had the two kilograms of crack in the car (Tr.16: 61). He said he did not hear them discussing the reason he was going to the hotel (Tr.16: 68). This testimony was impeached by his unsworn statement to the police after his arrest that he had heard such a discussion (Tr.16: 84), but there was no substantive evidence to that effect. Thus, it simply was not proved that Carpio and Ramirez assisted Profeta and/or Mr. xxxxxxx with actual knowledge of their purpose.

In the past, the Government has expressed indignation about Profeta's inconsistent statements and the acquittals of Carpio and Ramirez. But that response and the price Profeta paid for his inconsistency (a life sentence) should not obscure the fact that the evidence was weak that Carpio and Ramirez were knowing members of the charged conspiracy to distribute crack. Of course, they could have suspected that Mr. xxxxxxx and Profeta were involved in a drug deal, but that did not mean they knew or could even have foreseen the possibility that crack, rather than powder cocaine, was involved.

Again, Montanez only connected Ramirez with powder cocaine, and she said Carpio was never around when drugs were. And finally, even if those two suspected what was happening on the 17th, their transitory and minimal role was as likely to have resulted from friendship, curiosity, and/or opportunism as from mutually agreed membership in the crack conspiracy, of which they were acquitted. In United States v. McGregor, 11 F.3d 1133, 1139 (2d Cir. 1993), the court held that an aggravated role increase was unjustified where a drug dealer asked his wife, who knew he was a dealer, to take money from and give packages she knew were cocaine to two men he expected to come to their home while he was away. Here, likewise, there was no evidence that Carpio's isolated service to Mr. xxxxxxx was more than a personal favor.

With the elimination of Mitchell, Montanez, Ramirez, Carpio, and Chernak, the only person left on the list of people the PSR said Mr. xxxxxxx supervised was Saro, and the basis for that notion appears to have been Mr. xxxxxxx's alleged "taking over" of the August 31, 1989 negotiations with Alvarez. See PSR ¶ 49. A reasonable reading of the transcripts of the tape (A. 17-29) simply does not support a finding that Mr. xxxxxxx took over and dominated the situation. He merely appeared to be a skeptical partner, whose agreement was no more necessary than Saro's. According to both the Government's and the defense's transcripts, Saro handled the closing part of the conversation with Alvarez, when the amount, price, time to call Alvarez back, and Saro's beeper number were discussed. Alvarez's claim that Mr. xxxxxxx took charge of the conversation is amply disproved by the conversation itself. If the judge on the remand had not erroneously refused to consider whether the three-level aggravated role increase was supported by preponderant evidence that Mr. xxxxxxx managed or supervised at least one other participant in the charged crack distribution enterprise, the judge would have been compelled to find that the evidence was insufficient and to refuse to reimpose the increase. Mr. xxxxxxx's present sentence, too, should be vacated and the case remanded again for resentencing.



A. The Standard of Review

In United States v. Smith, 27 F.3d 649 (D.C. Cir. 1994), the Court reviewed de novo and resolved affirmatively the question of whether differences in probable conditions of confinement could justify a downward departure from a Guideline prison sentence. In the instant case, Mr. xxxxxxx contends that the judge erred as a matter of law in taking an unduly narrow view of his authority on the remand and in failing to follow Smith, for he denied the requested relief without conducting an inquiry into the pertinent facts and/or making factual findings that might militate against a downward departure.

B. The Judge Was Required to Consider the Likelihood that Mr. xxxxxxx's Punishment Would Be Unfairly Harsh Because of His Deportable Status.

The Court in Smith remanded for resentencing, recognizing that where the defendant was a deportable alien, a downward departure from his Guideline range might be justified under 18 U.S.C. § 3553(b) and the Guidelines by his ineligibility for the less onerous conditions of confinement for which a non-alien with the same record could qualify. 27 F.3d at 654-656.

Mr. xxxxxxx is a deportable alien, his temporary residence permit having expired during his incarceration, and he informed the judge below through counsel that an immigration detainer was lodged against him. At the time when his pre-resentence memorandum was filed, it was as yet unclear that he would receive a prison term of years, rather than life. Accordingly, counsel offered, in the event that the judge were to decide to impose a set prison term, to assist the judge in obtaining the relevant information about Mr. xxxxxxx's prison record and the Bureau of Prisons policies concerning inmates like him (June 30, 1995 memorandum at 31-32; Tr.7/20 10-11). However, although the judge did conclude he had to impose a limited term under the current Guidelines, and although this issue clearly could not have been raised before, the judge refused to give meaningful consideration to the requested relief.

Immediately after declaring that he would "not engage in de novo review of the entire sentencing process" because he found this Court's mandate to be "limited to the base offense level calculations," the judge said the following:

Mr. Burns requests a downward departure based on Mr. xxxxxxx's status as an illegal alien. The Court does not believe it has jurisdiction to consider such a departure given the limited nature of the remand and the provisions of Rule 35 of the Federal Rules of Criminal Procedure.

Assuming arguendo that such power exists, the Court sees no basis upon which to exercise it and, accordingly, declines to depart downward on this basis.

(Tr.7/20 13).

In fact, Mr. xxxxxxx had not been an "illegal alien," as the judge called him, when he was arrested; again, his "deportable alien" status arose from the expiration of his residence permit while he was imprisoned. Defense counsel had made that clear and had cited the Smith decision both in the memorandum and in arguing orally that it should be followed (Tr. 7/20 10-11). Yet the judge made no reference to the Smith decision or to the conditions under which Mr. xxxxxxx would have to serve his new prison term. So it appears that in addition to interpreting his "jurisdiction" far too narrowly, the judge failed--very likely because of that interpretation--to perceive the actual nature of Mr. xxxxxxx's claim. It certainly cannot be said that the record demonstrates due deliberation on the issue and an informed exercise of discretion. See United States v. Williams, 980 F.2d 1463, 1466 (D.C. Cir. 1992) (de novo review performed because overall context of judge's comments suggested, not discretionary refusal to depart downward, but conclusion that he was powerless to reduce sentence). For this additional reason, the sentence should be vacated and the case remanded for resentencing.



A. The Standard of Review

Again, the judge's ruling as to the limited scope of his authority under this Court's remand of the case and Fed. R. Crim. P. 35 should be reviewed de novo, as a legal question. See United States v. Chatman, 986 F.2d 1446, 1448 (D.C. Cir. 1993); United States v. Williams, 980 F.2d 1463, 1466 (D.C. Cir. 1992).

B. The Existing Guidelines' Total Failure to Consider the Unfairness of the Crack Sentences Was a Clear Ground for Downward Departure.

Mr. xxxxxxx made a timely motion, under Fed. R. Crim. P. 35(c), to correct the sentence that had just been imposed by departing downward from the Guideline minimum because it was clear that the Sentencing Commission, in formulating the 100-to-1 ratio between the amounts of powder cocaine and crack cocaine that make given base offense levels applicable, had not adequately considered the factors that had recently led it to conclude that the ratio was "unfair." See U.S. Sentencing Commission: Materials Concerning Sentencing for Crack Cocaine Offenses 57 CrL 2127, 2131-2134 (May 31, 1995) (Commissioners dissenting from amendment to eliminate disparity agree that ratio should at least be substantially reduced). This omission, it was claimed, met the criteria of 18 U.S.C. § 3553(b) and U.S.S.G. § 5K2.0, and permitted a downward departure. The judge, however, had held at sentencing that he had to apply the existing Guidelines even though he believed the 100-to-1 ratio to be "unwise," and he now held perfunctorily that "no 'arithmetical, technical, or other clear error' exists that would warrant a 'correction' of defendant's sentence." Here, as in his other refusals to consider relief to Mr. xxxxxxx beyond the adjustment of his base offense level, the judge was mistaken.

The argument that sentencing judges may depart downward based on the Sentencing Commission's Special Report to Congress on Cocaine and Federal Sentencing Policy (February, 1995) and subsequent related documents is central to the appeal to this Court in United States v. Oscar Anderson, No. 95-3109, which is already fully briefed and presumably will be decided before the instant appeal is decided. Footnote Further, extensive briefing of the issue here would therefore seem superfluous.

It is noteworthy, however, that in Anderson the Government argues that the Special Report did not reveal that the Commission failed to consider the unfairness of the 100-to-1 ratio. According to the Government, the Report only addressed Congress's omissions in enacting the statutory structure of mandatory sentences, upon which the commission "piggybacked" the Guidelines scheme (United States v. Oscar Anderson, Brief for Appellee at 7-9). It defies reason to contend that the Commission's 198-page Special Report, the resulting amendment, and subsequent public statements by the Commissioners reveal nothing about any "policy concerns driving the Guidelines approach to crack" at the time it was promulgated (id. at 9). Surely, the original absence of the present "policy concerns" from the Commission's deliberations is patent in the "piggybacking" process cited by the Government.

Even while rejecting the Commission's amendment, Congress has acknowledged that the existing scheme for dealing with crack and powder is problematic. As a federal judge has written since the filing of the Government's brief in Anderson,

It is obvious that very recent congressional recognition of the need for revision of the 100-to-1 ratio means the ratio was not adequately taken into account at the time it promulgated the guidelines being applied . . . in this case. Indeed, the Sentencing Commission simply used the 100-to-1 ratio as a reference point for base offense level calculations in 1986 and 1987 without searching deliberation because Congress had used the ratio in certain statutes for the purpose of the mandatory minimum sentences. See, e.g., United States v. McMurray, 833 F.Supp. 1454, 1466-67 (D.Neb. 1993) (discussing the history of the "crack" guidelines compared to the "powder' guidelines), aff'd 34 F.3d 1405 (8th Cir. 1994), cert. denied, 115 S.Ct. 1164 (1995).

United States v. Sherice Y. Thompson, No. 4:CR93-3035, 1995 WL 688684, *2 (D.Neb. November 20, 1995). That judge, the Hon. Richard G. Kopf, thus reached precisely the conclusion urged below by Mr. xxxxxxx with respect to the permissibility of a downward departure under §§ 3553(b) and 5K2.0.

Judge Kopf's thorough analysis and impeccable logic demonstrate the error of the judge in the instant case in refusing to recognize his authority to reduce Mr. xxxxxxx's prison term below the Guideline minimum because of the Sentencing Commission's original failure to consider the unfairness of the crack-powder disparity. Footnote A remand also is required so that the judge can duly consider whether he should exercise that authority.


For the above-stated reasons, the sentence should be vacated and the case remanded for resentencing.

   Respectfully submitted,




        Allen E. Burns

   Assistant Federal Public Defender

   625 Indiana Avenue, N.W. Suite 550

   Washington, D.C. 20004

   (202) 208-7500


I HEREBY CERTIFY that the foregoing brief contains no more than the number of words allowed by Circuit Rule 28(d).


   Allen E. Burns


I HEREBY CERTIFY that on December 13, 1995, two copies of the foregoing brief for defendant-appellant and one copy of the accompanying appendix were served by hand delivery upon the United States Attorney's Office, Att'n: A.U.S.A. John R. Fisher, 555 Fourth Street, N.W., Room 10-435, Washington, D.C. 20001.


   Allen E. Burns