On Appeal from the United States District Court for the District of New Jersey, D.C. Criminal Action No. 87-00395-2.
Becker, Hutchinson and Scirica, Circuit Judges.
HUTCHINSON, Circuit Judge.
Javier Cifuentes appeals a pre-guidelines sentence of ten years imprisonment and a $1,000 fine. The United States District Court for the District of New Jersey imposed this sentence after Cifuentes pled guilty to conspiring to distribute and to possess cocaine with intent to distribute, contrary to 21 U.S.C.A. § 846 (West 1981). Conviction for this offense under § 846 is punishable by a maximum penalty of twenty years imprisonment and a $1,000,000 fine. See 21 U.S.C.A. § 841(b)(1)(C) (West Supp. 1988).
Cifuentes contends his sentence should be vacated for two reasons. He argues that the government violated its plea agreement with him when it falsely advised the district court that Cifuentes did not cooperate as he had promised. In doing so, Cifuentes argues, the government violated his right to due process. He also contends his sentence is excessive when compared to the three year sentence imposed on his co-defendant. The government commented on her cooperation and the district court took this factor favorably into account.
The government did not violate the plea agreement because it made no promise to recommend a specific sentence. We also reject Cifuentes's claim that the disparity between his ten year sentence and the three year sentence imposed on his co-defendant demonstrates an abuse of discretion. However, we find it necessary to vacate his sentence and remand this case to the district court to clarify the ambiguity in this record as to whether it relied on the government's disputed unfavorable characterization of Cifuentes's cooperation. If it did, the district court should vacate the sentence, grant Cifuentes's request for a hearing on the factual question of cooperation, and make appropriate findings on that question before resentencing. If it did not, the imposed sentence can be reinstated.
The district court had subject matter jurisdiction over Cifuentes's violation of 21 U.S.C.A. § 846 pursuant to 18 U.S.C.A. § 3231 (West 1985). We have appellate jurisdiction over the district court's order imposing sentence on Cifuentes pursuant to 28 U.S.C.A. § 1291 (West Supp. 1988).
With respect to Cifuentes's claim that the sentence is excessive, we review the district court for abuse of discretion. Our scope of review is plenary, however, in determining whether the district court violated Cifuentes's constitutional right to due process by taking into account a disputed fact concerning his cooperation without an appropriate hearing.
Cifuentes and his co-defendant, Inez Garcia, were indicted on two drug offenses. The first count charged them with conspiracy to distribute and to possess with intent to distribute multi-kilogram quantities of cocaine in violation of 21 U.S.C.A. § 846. The second count charged them with knowingly possessing cocaine with intent to distribute 12 1/2 kilograms of cocaine in violation of 21 U.S.C.A. § 841(a)(1) (West 1981). By reference to the offense that was the object of the conspiracy, section 846 authorizes a maximum penalty of twenty years in prison and a $1,000,000 fine.
The parties reached a plea agreement and reduced it to writing. In it, Cifuentes agreed to plead guilty to Count One and the government agreed to drop Count Two. The agreement required Cifuentes to cooperate with the government and to truthfully disclose his own drug activities and those of others known to him. In the plea agreement the government expressly refused to make any specific sentencing recommendation, but did make a combined threat and promise to bring its assessment of Cifuentes's cooperation, or lack of it, to the sentencing court's attention.
Three days before sentencing, the government advised the sentencing judge by letter that Cifuentes had been "deceitful, uncooperative and unwilling to help, in any manner." The letter went on to say, "Furthermore, defendant has refused to identify fellow narcotic traffickers and members of his Columbian drug organization." The pre-sentence report contains references, to which Cifuentes objects, to the government's assertion about his role in "an organization responsible for . . . distribution of large quantities of cocaine. . . ." The government's letter asked that Cifuentes's sentence reflect not only "the severity of the charges" but also "his untrustworthiness and his lack of cooperation."
Cifuentes's counsel responded in writing, disputing the accuracy of these assertions. He sought discovery of all notes and memoranda concerning the government's post-plea discussions with Cifuentes and a continuance of sentencing to allow him an opportunity to review the matter with his client.
Sentencing proceeded as scheduled. At the sentencing hearing Cifuentes's counsel disputed the factual accuracy of three portions of the pre-sentence report. They were: (1) the reference to his role as part of an organization responsible for large scale cocaine distribution in "the New York-New Jersey area," (2) the companion statement that he was more culpable than his co-defendant, and (3) a statement describing him as an "upper echelon trafficker, controlling couriers. . . ." In addition, counsel objected to the government's letter accusing Cifuentes of duplicity and lack of cooperation. After the government modified the statement in the pre-sentence report that Cifuentes was more culpable than Garcia to one that they were equally culpable, Cifuentes asked for a hearing on the accuracy of the government's statement that Cifuentes had been deceitful and uncooperative.
With respect to Cifuentes's objections to the three items in the pre-sentence report, the government suggested the district court either hold a Fatico hearing and call the DEA agent to testify about them or rely on the "other aspects of the Presentence Report." Appendix (App.) at 34. The court proceeded without a hearing on either the government's claim of lack of cooperation or the disputed portions of the pre-sentence report after stating it had "a good Presentence Report with only a couple of parts objected to by [Cifuentes]." Id. at 36. The court then inquired whether Cifuentes had identified the person to whom he would give the drugs. Id. at 38. After considering favorable letters from Cifuentes's family and friends and hearing his expressions of contrition, the district court imposed the ten year sentence, stating it had "carefully considered the Presentence Report . . . all of the letters that were sent in behalf of Mr. Cifuentes, [and] the comments of counsel for Mr. Cifuentes as well as [his own] statements." Id. at 41-42. This appeal followed.
Cifuentes contends the failure to give him a hearing on the accuracy of the government's statement that he was uncooperative deprived him of a fair sentencing. He couches this argument in the context of a claim that the government violated the plea bargain agreement. To do so, he interprets a statement in the agreement that the government would inform the sentencing judge and the Probation Department of "'the full nature and extent' of [his] cooperation . . ." as a promise. Appellant's Brief at 10. The premises of his contention are that the statement is untrue, that the sentencing court nevertheless accepted it, and that the court relied on it to his detriment in imposing a ten year sentence. As evidence that the court relied on the government's contested statement about his lack of cooperation, Cifuentes points to ...