Of the District of New Hampshire, sitting by designation. *

Not for Publication in West's Federal Reporter.

United States Court of Appeals

For the First Circuit

No. 06-1129

UNITED STATES OF AMERICA,

Appellee,

v.

EUTACIO CÁCERES-CABRERA,

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF PUERTO RICO

[Hon. José Antonio Fusté, U.S. District Judge]

Before

 Torruella and Lynch, Circuit Judges,

and DiClerico, District Judge. *

Héctor L. Ramos Vega, with whom Joseph C. Laws, Jr. and

Patricia A. Garrity were on brief, for appellant.

Timothy R. Henwood, Assistant U.S. Attorney, with whom Rosa

Emilia Rodríguez-Vélez, United States Attorney, and Nelson PérezSosa, Assistant U.S. Attorney, were on brief, for appellee.

March 15, 2007
-2-

LYNCH, Circuit Judge. Eutacio Cáceres-Cabrera was

convicted after trial of attempting to launder proceeds of a

specified unlawful activity. See 18 U.S.C. § 1956(a)(1)(B)(I),

(a)(2). The sums were forfeited. See id. § 982(a)(1). The

unlawful activity specified in the indictment and argued by the

prosecutor was drug dealing, and the amount of money the defendant

attempted to launder was $198,965 in cash. 

At sentencing, the district court imposed a six-level

upward adjustment under U.S.S.G. § 2S1.1(b)(1), and sentenced

Cáceres-Cabrera to sixty-three months' imprisonment with three

years of supervised release.

Cáceres-Cabrera appeals his sentence, arguing the court

erred in imposing the six-level adjustment. Under U.S.S.G.

§ 2S1.1(b)(1) the adjustment may be imposed if, inter alia, the

government has demonstrated, by a preponderance of the evidence,

that the defendant knew or had reason to believe that the laundered

funds were narcotics proceeds.

The parties disagree over the basis for the district

court's ruling. The defendant argues that the ruling rested on an

error of law, and that the evidence is insufficient. He argues

that the district court erroneously imposed the enhancement solely

on the basis of the jury verdict, which did not establish CáceresCabrera's knowledge that the monies were drug proceeds. The

defendant correctly points out that it is not an element of the
The government also adds some arguments on appeal which 1

were not directly presented to the district court. One of those

arguments is that the defendant was untruthful on this very

subject. He gave one version of events when he testified as to

whether he knew the bag contained money and whether he knew the

source of the money, and gave another version to the Probation

Officer, as reflected in the P.S.R.

-3-

offense of conviction that the defendant know that the laundered

monies are proceeds of illicit drug transactions. 18 U.S.C.

§ 1956(a). Rather, conviction requires only that the defendant

know that the monies are proceeds of some illegal activity. Id.

§ 1956(a)(1); see also United States v. Cornier-Ortiz, 361 F.3d 29,

37 (1st Cir. 2004). Defense counsel also notes that the government

argued at closing that there was no burden on the government to

prove that Cáceres-Cabrera knew the money came from narcotics

proceeds, only that the money came from illegal activity.

The government rejoins that the court's result is based

on the jury verdict along with other evidence the government

produced at sentencing.1

The court asked for and heard a recitation of the

government's evidence supporting the six-level increase. After

that recitation, the court expressed, several times, considerable

doubt that the evidence was enough to meet the government's burden

of proving that the laundered monies were drug proceeds. The

government then switched tactics and argued that the jury, in

delivering the verdict of guilt, necessarily adopted the

government's theory that the funds were drug funds, despite the
-4-

defense's objections that this was not an element of the crime and

that the jury verdict form did not require any such finding.

The court then concluded, "[T]he adjustment has to be

made in light of the verdict." It is unclear whether the court was

implicitly ruling that the government's other evidence was

insufficient, as the court had earlier suggested; or that the

totality of the evidence, including the verdict, sufficed to meet

the government's burden; or that the result was compelled by the

jury verdict standing alone, regardless of the other evidence.

The sentencing transcript can be read to support either

side's argument as to the court's reasons. We think that the

proper course is to remand to the district court for clarification

and a further statement of reasons. See United States v. JiménezBeltre, 440 F.3d 514, 519 (1st Cir. 2006) (en banc) ("[O]ur

emphasis in reviewing . . . claims [contesting the treatment of

various sentencing factors by the district court] will be on the

provision of a reasoned explanation . . . ."); see also United

States v. Catano, 65 F.3d 219, 231 (1st Cir. 1995) (remanding for

further explanation); United States v. Levy, 897 F.2d 596, 599 (1st

Cir. 1990) ("Where, as here, the record admits of possible

ambiguity, our practice is to remand for a limited purpose.").

Rather than retain jurisdiction, we remand for resentencing. See

United States v. McDowell, 918 F.2d 1004, 1012 (1st Cir. 1990)

(remanding for resentencing where appellate court cannot tell the
-5-

basis on which a four-level upward adjustment was given). Nothing

in this opinion should be taken as addressing the merits of the

issues raised by the defendant.

This appeal is terminated. If the defendant is

dissatisfied with the district court's actions after remand, he

should take a new appeal.

So ordered.