United States Court of Appeals

For the First Circuit

No. 06-1880

UNITED STATES OF AMERICA,

Appellee,

v.

ALTAGRACIA RAMOS-PAULINO,

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, 

Selya, Senior Circuit Judge,

and Lynch, Circuit Judge.

Raymond L. Sanchez-Maceira, by appointment of the court, on

brief for appellant.

Nelson Pérez-Sosa, Assistant United States Attorney (Chief,

Appellate Division), Rosa Emilia Rodríguez-Vélez, United States

Attorney, and on brief for appellee.

May 23, 2007
-2-

SELYA, Senior Circuit Judge. In this criminal appeal,

the defendant challenges both her conviction (on the ground of

instructional error) and her sentence (on the ground of a

guidelines-related error). After a thorough review of the record

and the applicable law, we affirm the defendant's conviction but

vacate her sentence. The tale follows.

We begin with the denouement. In April of 2005, a

federal grand jury charged defendant-appellant Altagracia RamosPaulino with attempted transport and concealment of illegal aliens,

see 8 U.S.C. § 1324(a)(1), and trafficking in false identification

documents, see 18 U.S.C. § 1028(a)(2). These charges stemmed from

her involvement with Rafael Cintrón-Brea (Cintrón), a defrocked

police officer who became a government informant after pleading

guilty to an alien-smuggling charge.

The pertinent facts are as follows. The defendant first

met Cintrón in 2003. While she piously protests that they did not

pool their efforts to transport illegal aliens until January of

2005, Cintrón says that they collogued together from the start. We

need not resolve this conflict; for present purposes, it suffices

that, by all accounts, the joint enterprise was velivolant no later

than January of 2005. An event that is crucial to this appeal

occurred at that time: Cintrón reassured the defendant that,

notwithstanding his earlier arrest (of which she had recently
-3-

become aware), she would not be brought to book for the criminal

activities that the two of them were planning to undertake.

This brings us to the offense conduct. Between January

and April of 2005, Cintrón and the defendant arranged the transport

of four illegal aliens. The defendant was the principal contact

for the aliens. With the assistance of a man named Domingo, she

gathered information about them, collected payments from them, and

obtained false identification documents for them. She then

transferred the money, the papers, and the aliens to Cintrón with

directions about which airline tickets should be purchased. 

According to the plan, Cintrón was to purchase the

tickets and escort the aliens through San Juan's major

international airport, bypassing the usual security checkpoints.

Cintrón, however, was cooperating with the authorities, and the

defendant's activities led only to her arrest. An indictment

followed. 

Pretrial proceedings were unremarkable. Cintrón was the

government's star witness at the trial. At the close of the

evidence, the defendant renewed her earlier request for an

entrapment instruction, claiming that Cintrón's assurances had

induced her to participate in the criminal venture. The district

court refused to instruct on entrapment, and the jury found the

defendant guilty on all counts.
-4-

The district court continued the case for sentencing and

ordered the preparation of a presentence investigation report (PSI

Report). The court convened the disposition hearing on April 25,

2006. In making its guideline computations, the court adopted a

recommendation put forth in the PSI Report and applied a two-level

enhancement based on the defendant's role in the offenses of

conviction. See USSG §3B1.1(c). The adjusted offense level, when

combined with the defendant's criminal history category, yielded a

guideline sentencing range of 15-21 months. The court proceeded to

impose a sentence at the top of the range: 21 months. This timely

appeal ensued.

The defendant's claim of instructional error is easily

dispatched. She argues that she was entitled to a jury instruction

on entrapment because that was her main theory of defense and the

record contained adequate evidence to support it. We do not agree.

It is often said that a criminal defendant is entitled to

have the jury instructed on her theory of the case. But that

aphorism is not a universal truth: to warrant a jury instruction on

a specific theory of defense, the evidence adduced at trial, taken

in the light most flattering to the accused, must plausibly support

the theory. See United States v. Gamache, 156 F.3d 1, 9 (1st Cir.

1998); United States v. Rodriguez, 858 F.2d 809, 812 (1st Cir.

1988).
-5-

Where, as here, a criminal defendant seasonably requests

an instruction on a particular theory of the case and the trial

court flatly refuses to submit that theory to the jury, our review

is plenary. See United States v. Nishnianidze, 342 F.3d 6, 17 (1st

Cir. 2003); Rodriguez, 858 F.2d at 812. This strain of appellate

review does not permit differential factfinding but, rather, turns

upon an inquiry into the sufficiency of the evidence in the case.

Rodriguez, 858 F.2d at 812. The burden is on the defendant, as the

proponent of the theory, to identify evidence adduced during the

trial that suffices to satisfy this standard. See id. at 814. 

We have had occasion to apply this framework to efforts

to deploy an entrapment defense. When that defense is in issue,

the test of evidentiary sufficiency has two facets. See United

States v. Capelton, 350 F.3d 231, 242 (1st Cir. 2003). To warrant

an instruction on entrapment, the evidence must be sufficient to

support both a finding that the government wrongfully induced the

unlawful conduct and a finding that the defendant lacked a

predisposition to engage in that conduct. See, e.g., United States

v. Gifford, 17 F.3d 462, 468 (1st Cir. 1994); Rodriguez, 858 F.2d

at 814. The defendant cannot pass this binary test.

Here, the claim of inducement rests exclusively on the

January 2005 conversation between Cintrón and the defendant. As

the defendant envisions it, Cintrón lured her into committing the

crime by assuring her that "nothing could happen to her because he
-6-

was a Police Officer." Appellant's Br. at 11. In our view,

however, this solitary piece of evidence leaves the defendant well

short of the finish line.

We repeatedly have held that the simple solicitation of

a criminal act or the mere provision of an opportunity to engage in

one does not meet the threshold requirement for a finding of

wrongful inducement. See, e.g., Capelton, 350 F.3d at 243;

Gifford, 17 F.3d at 468. Empty promises that a crime, once

committed, will produce no adverse repercussions fall into the same

category. Telling a person that she will not be caught does not

lead her to believe that the conduct is lawful or that she will be

in jeopardy if she refuses to go along; it is, rather, simply a way

of making the opportunity to commit the crime more attractive.

Such promises, therefore, are not the stuff of which inducement can

be fashioned. See United States v. Evans, 924 F.2d 714, 717 (7th

Cir. 1991) (stating that inducement will lie only when the

government offers the "sorts of promises that would blind the

ordinary person to his legal duties"); cf. United States v. Davis,

15 F.3d 902, 909 (9th Cir. 1994) (explaining that law enforcement

officers "are not precluded from utilizing artifice and stealth" to

apprehend criminals, provided that "they merely afford

opportunities or facilities for the commission of the offense by

one predisposed or ready to commit it"). Inducement requires

something more — something akin to excessive pressure, threats, or
Because the absence of any significantly probative evidence 1

of inducement is dispositive of the claim of instructional error,

we need not address the state of the record vis-à-vis

predisposition. See Capelton, 350 F.3d at 242-43 ("Given the

disjunctive nature of the [entrapment] test, we can fulfill our

appellate function by elaborating our disagreement on either

inducement or predisposition."). 

-7-

the exploitation of an unfair advantage. See United States v.

Luisi, 482 F.3d 43, 58 (1st Cir. 2007); United States v. Gendron,

18 F.3d 955, 961 (1st Cir. 1994) (Breyer, C.J.).

In this instance, the defendant's version of her

conversation with Cintrón is uncontradicted. Taking what was said

at face value, a finding of inducement simply will not lie. On

that basis alone, the district court's unwillingness to instruct on

entrapment was entirely appropriate.1

We turn next to the defendant's claim of sentencing

error. The Supreme Court's landmark decision in United States v.

Booker, 543 U.S. 220, 245 (2005), rendered the federal sentencing

guidelines advisory. This does not mean, however, that the

guidelines are irrelevant in the post-Booker world. To the

contrary, they remain the starting point for most federal

sentencing determinations. See United States v. Pelletier, 469

F.3d 194, 203 (1st Cir. 2006); United States v. Jiménez-Beltre, 440

F.3d 514, 517 (1st Cir. 2006) (en banc), cert. denied, 127 S. Ct.

928 (2007). When an error in the calculation of a defendant's

guideline range affects or arguably affects the sentence imposed,

that error will require resentencing. See United States v. Gobbi,
-8-

471 F.3d 302, 313 & n.7 (1st Cir. 2006); United States v.

Antonakopoulos, 399 F.3d 68, 81 (1st Cir. 2005).

We review a sentencing court's findings of fact for clear

error. See United States v. Misla-Aldarondo, 478 F.3d 52, 70 (1st

Cir. 2007); United States v. Dixon, 449 F.3d 194, 200-01 (1st Cir.

2006). We afford de novo review, however, to questions of law

involved in sentencing determinations. See United States v. Pho,

433 F.3d 53, 60-61 (1st Cir. 2006). A question about whether the

evidence is sufficient to support a particular guideline

determination is a question of law and, therefore, engenders de

novo review. See Dixon, 449 F.3d at 200; United States v.

Carrasco-Mateo, 389 F.3d 239, 243 (1st Cir. 2004). 

In the case at hand, the defendant makes a rifle-shot

objection to one part of the lower court's sentencing algorithm.

This objection takes dead aim at the court's embrace of a two-level

upward adjustment for role in the offense recommended in the PSI

Report. The operative guideline provision applies to a defendant

who is shown by a preponderance of the evidence to be an

"organizer, leader, manager, or supervisor" of between one and five

other participants in the crime of conviction. USSG §3B1.1(c); see

United States v. Tejada Beltran, 50 F.3d 105, 110 (1st Cir. 1995).

The defendant's argument centers on the paucity of

evidence that she organized, led, managed, or supervised any other

participant in the criminal enterprise. Because the district court
It is conceivable, of course, that the aliens might qualify 2

as participants for the purpose of a role-in-the-offense

enhancement with respect to the "false document" count. See

Thiongo, 344 F.3d at 62-63. Here, however, the district court made

no findings to that effect.

-9-

did not base the enhancement on specific findings as to whom the

defendant may have organized, led, managed, or supervised, we have

searched the record (including the PSI Report) in an endeavor to

identify any such underlings.

We have come up dry. The district court indicated at one

point its belief that the defendant oversaw Cintrón. Even if that

were true — and the record is murky on the point — such a finding

could not sustain the enhancement. For purposes of the

"participant" requirement of section 3B1.1(c), Cintrón (who was

acting undercover in 2005 as part of a government sting operation)

does not count. Neither a government agent nor anyone acting under

the direction of a government agent qualifies as a "participant"

for purposes of a role-in-the-offense enhancement. See USSG §3B1.1

cmt. n.1; see, e.g., United States v. Andreas, 216 F.3d 645, 679

(7th Cir. 2000); United States v. King, 21 F.3d 1302, 1304-05 (3d

Cir. 1994). By the same token, the aliens themselves cannot be

deemed participants for this purpose. See United States v.

Thiongo, 344 F.3d 55, 63 (1st Cir. 2003); see also USSG § 2L1.1

cmt. n.2. 

2

Beyond the defendant's relationship with Cintrón and her

dealings with the aliens themselves, there is little if any
-10-

evidence indicating that she organized, led, managed, or supervised

any other participant. Although she worked hand in glove with the

mysterious Domingo, there is nothing to show either that he was her

subordinate in the chain of command or that she oversaw his

activities.

The absence of any such evidence is puzzling, but the

record contains a likely explanation. In fashioning the managerial

role enhancement, the district court seems to have gone in a

different direction. For aught that appears, the court based the

enhancement primarily on the defendant's control over the

activities of the criminal enterprise rather than over any

participants in it.

To justify this focus, the court pointed to language in

the guidelines discussing "a defendant who did not organize, lead,

manage, or supervise another participant, but who nevertheless

exercised management responsibility over the property, assets, or

activities of a criminal organization." USSG §3B1.1 cmt. n.2.

That description, the court said, "fit[] very well to this

defendant's role." Elaborating, the court observed that the

defendant was the principal contact for the smuggled aliens, that

she was apparently responsible for determining fees and accepting

payments, that she procured the false identification documents, and

that she had some influence over the scheduling of the transports.
-11-

We appreciate the district court's concern. The problem

with this approach, however, is that the very application note

cited by the court makes it pellucid that the management of

criminal activities (as opposed to the management of criminal

actors) may ground an upward departure but not an upward role-inthe-offense adjustment. See id. Although both may lead to similar

outcomes, there is an important structural distinction between

sentencing enhancements and sentencing departures. See United

States v. Cali, 87 F.3d 571, 576-79 (1st Cir. 1996); see also USSG

§1B1.1 cmt. n.1(E) (defining departures generally). For present

purposes, then, we are constrained by the unambiguous case law

holding that management of criminal activities, standing alone,

does not constitute a basis for a role-in-the-offense enhancement

under section 3B1.1. See, e.g., United States v. Harness, 180 F.3d

1232, 1235 (11th Cir. 1999); Cali, 87 F.3d at 876-79; United States

v. Greenfield, 44 F.3d 1141, 1146 (2d Cir. 1995). Consequently,

the district court erred in upwardly adjusting the defendant's

offense level on the basis of section 3B1.1(c).

Even under an advisory guidelines regime, the sentencing

court is obliged to calculate the guideline range correctly. See

Gobbi, 471 F.3d at 313 & n.7. An accurate calculation of the range

is particularly important where, as here, the district court

sentences the defendant at the range's apex. Accordingly, we have

no principled choice but to vacate the defendant's sentence and
-12-

remand for resentencing consistent with this opinion. We leave

open the full gamut of possibilities — for example, the district

court, if it can identify a participant or participants under the

defendant's sway, may reimpose the managerial role enhancement; or

it may essay an upward departure for management of criminal

activities; or it may simply eschew any further embellishments and

impose what it deems to be a reasonable sentence. We take no view

either as to the course to be followed or as to the duration of the

sentence to be imposed. In the first instance, these are matters

for the sentencing court.

We need go no further. For the reasons elucidated above,

we affirm the defendant's conviction, vacate her sentence, and

remand for resentencing consistent with this opinion.

Affirmed in part; vacated in part; and remanded for resentencing.