Not For Publication in West's Federal Reporter

Citation Limited Pursuant to 1st Cir. Loc. R. 32.3

United States Court of Appeals

For the First Circuit

No. 04-2187

UNITED STATES OF AMERICA,

Appellee,

v.

JESÚS MANUEL DÍAZ CORREA,

Defendant, Appellant.

No. 04-2331

UNITED STATES OF AMERICA,

Appellee,

v.

JORGE D. LÓPEZ-ENCARNACIÓN,

Defendant, Appellant.

No. 04-2369

UNITED STATES OF AMERICA,

Appellee,

v.

JOSÉ M. MORALES-BORIA,

Defendant, Appellant.
No. 04-2420

UNITED STATES OF AMERICA,

Appellee,

v.

ZILKIA MARRERO-VARGAS,

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF PUERTO RICO

[Hon. Juan M. Pérez-Giménez, U.S. District Judge]

Before

 Boudin, Chief Judge,

Torruella and Howard, Circuit Judges.

Juan J. Hernández López de Victoria on brief for appellant

Jesús M. Díaz Correa.

Guillermo A. Macari-Grillo on brief for appellant Jorge LópezEncarnacion.

Olga M. Shepard De Mari on brief for appellant José MoralesBoria.

Lydia Lizarribar-Masini on brief for appellant Zilkia MarreroVargas.

Germán A. Rieckehoff, Assistant U.S. Attorney, Nelson PérezSosa, Assistant U.S. Attorney, and H.S. Garcia, United States

Attorney, on brief for appellee.

June 28, 2006
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Per Curiam. This is an appeal by four co-defendants--

Jesús Manuel Díaz Correa ("Díaz"), Jorge D. López-Encarnación

("López"), José M. Morales-Boria ("Morales"), and Zilkia MarreroVargas ("Marrero")--from sentences imposed after they pled guilty

to conspiring to commit credit card fraud and other related

crimes. All defendants seek resentencing under United States v.

Booker, 543 U.S. 220 (2005). In addition, defendants Morales and

López challenge their sentences on other grounds. For the

reasons discussed below, we vacate all of the defendants'

sentences and remand for resentencing under Booker. 

A. Booker Claims

As the government correctly concedes, all defendants

preserved their Booker arguments by arguing below that the

Guidelines were unconstitutional under Blakely v. Washington, 542

U.S. 296 (2004). See United States v. Antonakopoulos, 399 F.3d 68,

74 (1st Cir. 2005). Accordingly, we review defendants' Booker

claims for harmless error. United States v. Fornia-Castillo, 408

F.3d 52, 73 (1st Cir. 2005). Under that standard, "to avoid a

remand for resentencing under advisory Guidelines, 'the government

has the burden of proving . . . that the error did not affect the

defendant[s'] substantial rights. That is, we must be convinced

that a lower sentence would not have been imposed had the

Guidelines been advisory.'" Id. (quoting United States v. Vázquez-
We reject the government's argument that all defendants 1

except Díaz waived the benefit of the harmless error standard by

not expressly invoking it in their briefs. Nor did the defendants

waive their Booker claims by stipulating to certain Guidelines

calculations in their plea agreements, as the government further

contends. While such stipulations may be binding as to particular

Guidelines calculations, United States v. Serrano-Beauvaix, 400

F.3d 50, 54 (1st Cir.), cert. denied, 126 S. Ct. 106 (2005), they

do not preclude a defendant from seeking resentencing under a

scheme where the Guidelines calculations are not dispositive. 

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Rivera, 407 F.3d 476, 490 (1st Cir.), cert. denied, 126 S. Ct. 279

(2005)).

Here, for all but one defendant, Díaz, the government 1

does not even attempt to show that the district court would have

imposed the same sentence under the advisory Guidelines and other

statutory factors. As to Díaz, the government argues that the

sentence was driven, not by the mandatory Guidelines, but by the

parties' stipulations in the plea agreement, which the court simply

adopted. But those stipulations, entered into pre-Booker, dealt

only with the Guidelines calculations and therefore provide no

insight into what the district court would have done if the

Guidelines were not mandatory and other factors were also

considered. Indeed, at sentencing, Díaz's counsel specifically

asked the district judge how he would sentence Díaz if the

Guidelines were declared unconstitutional, but the judge declined

to answer that hypothetical question. If anything, the fact that

the court adopted the parties' recommendation to sentence Díaz at

the bottom of the applicable Guidelines range is an indication that
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the court might have imposed an even lower sentence if it had the

discretion to do so. Vázquez-Rivera, 407 F.3d at 490. Under those

circumstances, we are not convinced that the district court would

have imposed the same sentence absent the mandatory nature of the

Guidelines. Cf. United States v. Benedetti, 433 F.3d 111, 119 (1st

Cir. 2005) (finding Booker error harmless where the court stated

that it would apply "exactly the same sentence" if the Guidelines

were unconstitutional). Similarly, as to the remaining defendants,

nothing in the record indicates that the sentencing judge would

have imposed the same sentences if he were not bound by the

Guidelines. 

Accordingly, we conclude that the government has failed

to meet its burden of demonstrating harmless error and therefore

vacate and remand all defendants' sentences for resentencing under

Booker, using the protocols endorsed in United States v. JiménezBeltre, 440 F.3d 514, 518-19 (1st Cir. 2006) (en banc). "[O]ur

decision to remand should not be read as a 'suggestion or a

prediction that [defendants'] sentence[s] will necessarily be

altered.' This is especially true 'where . . . the harmless error

test[] makes even a modest possibility of change enough to warrant

remand.'" United States v. Gómez-Rosario, 418 F.3d 90, 109 (1st

Cir. 2005) (citations omitted).
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B. Other Claims

Because Morales will be resentenced under Booker, his

procedural challenges to his sentencing proceedings--that the court

refused to consider his illegible written objections to the

presentence report and refused to grant his motion to continue the

sentencing hearing--are moot and therefore need not be considered.

However, to guide the district court in resentencing Morales and

Lopez, we will address their substantive challenges to their

Guideline calculations. United States v. Green, 426 F.3d 64, 66

(1st Cir. 2005). 

Morales's substantive challenge focuses on the

calculation of the amount of loss and number of victims

attributable to him for sentencing purposes. He claims that the

district court erred in basing his sentence on the total amount of

loss (more than $400,000) and total number of victims (between 10

and 50) attributable to the entire conspiracy, rather than on the

smaller quantities involved in the overt acts with which he was

charged or otherwise evidenced by materials provided in discovery.

The district court correctly rejected that argument and

held Morales to the Guidelines calculations that he stipulated to

in his plea agreement, which were expressly based on the $400,000

loss amount and the 10-to-50 victims. As we recently reiterated

in a decision involving another co-defendant in this same case,

"[o]rdinarily, a defendant can be held to such stipulations."
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United States v. Rodríguez-González, 433 F.3d 165, 167 (1st Cir.

2005) (citing United States v. Teeter, 257 F.3d 14, 28 (1st Cir.

2001)). In this case, unlike in Rodríguez-González, there is no

claim that the defendant joined the conspiracy late, so the

principle that a late-joining member of a conspiracy is not

responsible, for sentencing purposes, for conduct of his coconspirators before he joined, id. at 168, has no bearing here.

Nor does the record here evidence any confusion on the judge's part

as to the applicable standard. Cf. id. at 168-69.

López argues that, in determining his criminal history

category, the district court erred in counting one of his prior

convictions. In reviewing this claim of Guidelines error, the

pre-Booker standards of review still apply; the district court's

interpretation of the Guidelines is reviewed de novo and its

related factual findings are reviewed for clear error. United

States v. Robinson, 433 F.3d 31, 35, 38 (1st Cir. 2005). 

Specifically, López claims that his March 2003 state

conviction for attempting to cash a false check should not have

been counted in computing his criminal history score because that

conviction was "part of the instant offense," within the meaning of

U.S.S.G. § 4A.1.2. The district court rejected that argument,

reasoning that the prior conviction for check fraud was for a

different offense, more akin to bank fraud, than the instant

conviction for credit card fraud. 
This application note--rather than application note 3, which 2

describes the circumstances under which prior sentences are

"related" to each other--is the one that applies here. See United

States v. Cyr, 337 F.3d 96, 99 n.1 (1st Cir. 2003); United States

v. Troncoso, 23 F.3d 612, 616 n.4 (1st Cir. 1994). The

government's reliance on application note 3 is therefore misplaced.

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In so concluding, the district court does not appear to

have considered several other factors relevant to whether the prior

offense was "part of" the instant one, including whether the

offenses are "'substantially connected to each other by at least

one common factor, such as common victims, common accomplices,

common purpose, or similar modus operandi.'" United States v.

Collazo-Aponte, 216 F.3d 163, 203 (1st Cir. 2000) (quoting U.S.S.G.

§ 1B1.3 comment. (n.9(A) )), vacated on other grounds, 532 U.S. 2

1036 (2001). While "[t]he nature of the offenses may also be a

relevant consideration," U.S.S.G. § 1B1.3 comment. (n.9(B)), it is

not dispositive, id. The district court cannot therefore rely on

that single factor without considering the other factors. Because

determining whether a prior offense is part of the instant offense

is "necessarily a fact-specific inquiry," id. (quotation marks and

citation omitted); see also Troncoso, 23 F.3d at 616, we leave that

determination to the district court in the first instance. 

 All of the appellants' sentences are vacated and the

matter is remanded to the district court for resentencing in

accordance with this opinion.

It is so ordered.