Appeals from imposition of sentences under the Sentencing Reform Act of 1984, as amended, following judgments of conviction by guilty pleas entered in the United States District Court for the Southern District of New York, Docket Nos. 89-1051, 89-1057, Kevin T. Duffy, Judge. Vacated and remanded.
Lumbard, Pratt, and Altimari, Circuit Judges.
Defendants Jesus Palta and Edison A. Marmolejo appeal sentences imposed under the Sentencing Reform Act of 1984, as amended, 18 U.S.C. § 3551 et seq. and 28 U.S.C. §§ 991-98, (the "Act"), following judgments of conviction by guilty pleas entered in the United States District Court for the Southern District of New York (Kevin T. Duffy, Judge). On this appeal, neither of the defendants challenges the underlying conviction, but both now argue that the district court erred in imposing sentence. Specifically, Palta contends that the district court's imposition of concurrent twenty-five year terms of imprisonment was unreasonable. Marmolejo contends that the district court improperly failed to rule on his objections to his presentence report and to make explicit factual findings in regard to his objections.
Since we agree with both defendants' contentions, the sentences are vacated and remanded to the district court for resentencing consistent with this opinion.
On July 14, 1988, Jesus Palta accompanied by Edison Marmolejo went to 79th Street and Riverside Drive in Manhattan to transact a previously arranged purchase of cocaine with an undercover agent and a confidential informant of the Drug Enforcement Administration ("DEA"). While Palta took the DEA informant to his automobile to show him the cocaine, Marmolejo went with the undercover agent to inspect the money. Before the transaction could be completed, Marmolejo refused to view the money and attempted to flee. Palta and Marmolejo were then arrested. A search of Palta's automobile revealed two kilograms of cocaine, a .32 caliber revolver and three small plastic bags of cocaine. Two more plastic bags of the drug were found on Palta's person.
Pursuant to plea agreements with the government, Marmolejo and Palta entered guilty pleas before Judge Duffy on October 11 and October 12, 1988 respectively. Both defendants pled guilty to conspiracy to distribute and possess with intent to distribute 500 grams or more of cocaine in violation of 21 U.S.C. § 846. In addition, Palta alone entered a guilty plea to possessing with intent to distribute approximately two kilograms of cocaine in violation of 21 U.S.C. §§ 812, 841(a)(1) and 841(b)(1)(B).
As sentences were to be imposed on November 30, 1988, presentence reports were prepared for both defendants. See 18 U.S.C. § 3552(a). Shortly before the sentencing date arrived, it was discovered that Jesus Palta was in reality Luis Eduardo Toro, an illegal alien with a prior narcotics-related felony conviction. Accordingly, the sentencing date was adjourned in order for an accurate presentence report to be prepared. Palta's second presentence report accounted for his prior narcotics conviction, his violation of parole, and his attempt to shield his true identity by providing false information during preparation of the first presentence report. Palta received a base offense level of 28 points for attempting to sell two kilograms of cocaine. See United States Sentencing Commission, Guidelines Manual § 2D1.1(a)(3) (rev. ed. 1988) ("Guidelines Manual"). The base level was increased two levels for possession of a firearm, see id. § 2D1.1(b)(1), and an additional two levels for willfully impeding and obstructing the administration of justice by supplying false information, see id. § 3C1 1. Palta received a two-level reduction for his acceptance of responsibility, see id. § 3E1.1., resulting in an offense level of 30. Additionally, Palta's prior narcotics conviction and parole violation resulted in a criminal history category of III, see id. § 4A1.1. and 2. Under the report's recommendation, the sentencing range as per the guidelines was set at 121 to 151 months. Defense counsel did not contest this recommendation,
Marmolejo's presentence report set a base offense level at 28 points for attempting to sell two kilograms of cocaine, with a two-level increase since a firearm was possessed at the time of the offense, see Guidelines Manual § 2D1.1(a)(3) and § 2D1.1(b)(1). He received a two-level reduction since he was deemed a "minor" participant in the criminal activity, see id. § 3B1 2(b), and a further two-level reduction for his acceptance of responsibility, see id. § 3E1.1. Since Marmolejo had no prior criminal history, his criminal history category, I, when matched with the offense level total, 26, resulted in a guideline range of 63 to 78 months.
At Palta's sentencing, on the morning of January 25, 1989, the government indicated it had nothing to add to the presentence report, and defense counsel stated no objection. Despite the report's recommendation of 121-151 months, Palta received two concurrent terms of 25 years (300 months) imprisonment. In imposing sentence, the district court explained:
You know it amazes me. Here you are you come into the country you claim you're a mule and you get caught and sentenced. I would assume that would teach you. But you can't do that. No, you go and do it again. You do it again and finally you get caught again.
Now, the second time you figure, hey, I've got a wonderful out, I'm no longer me, I'm somebody else and you continued to lie and you continued to lie and you played basically with the entire justice system and you say that the justice system of the United States stinks. I will play with them. Well, you got caught.
This is a case where the guidelines don't apply. The guidelines apply to people who get caught and who do not think that the system of justice is a play-thing. . . . I will not designate you to Danbury. I would think that Leavenworth would be a better place for you. . . . INS is to be notified if and when he ...