Not for Publication in West's Federal Reporter 

United States Court of Appeals

For the First Circuit 

No. 13-2496 

UNITED STATES OF AMERICA, 

Appellee, 

v. 

BONIFACIO TORIBIO-ALMONTE, a/k/a CARLOS DE-LA-CRUZ-SANCHEZ, 

Defendant, Appellant. 

APPEAL FROM THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF PUERTO RICO 

[Hon. Jay A. García-Gregory, U.S. District Judge] 

Before 

Kayatta, Stahl, and Barron, 

Circuit Judges. 

George F. Gormley, with whom Stephen P. Super was on brief, 

for appellant. 

Francisco A. Besosa-Martínez, Assistant United States 

Attorney, with whom Rosa Emilia Rodriguez-Velez, United States 

Attorney, and Nelson Pérez-Sosa, Assistant United States Attorney, 

Chief, Appellate Division, were on brief, for appellee. 

 

October 23, 2015 
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STAHL, Circuit Judge. The defendant, Bonifacio ToribioAlmonte, after having pled guilty to participating in a drugtrafficking conspiracy, now appeals from his sentence. At 

sentencing, the government claimed that the defendant was a leader 

or organizer of the conspiracy--a claim for which the government 

finds no support in the record and accordingly declines now to 

defend. Because resolution of the government's claim appeared 

central to the sentencing calculus, and yet because the record is 

too unclear to engage in effective appellate review on this 

question, we vacate the sentence and remand the action for 

resentencing. 

I. Facts & Background 

We draw the facts from the uncontested presentence 

report ("PSR") and the transcript of the sentencing hearing. 

United States v. Gaffney-Kessell, 772 F.3d 97, 98 (1st Cir. 2014). 

On April 12, 2012, a U.S. Customs and Border Protection 

marine patrol aircraft detected a small boat approximately 

seventeen nautical miles off the coast of Puerto Rico. The vessel, 

later determined to be registered in the Dominican Republic, was 

sailing in the direction of Dorado, Puerto Rico, with its lights 

out and, as it turned out, carrying six people on board. As the 

aircraft approached the vessel, several bales of what appeared to 
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be contraband were thrown overboard. The boat was intercepted and 

its passengers were arrested, including the defendant and five 

other individuals, all Dominican citizens. Six of the jettisoned 

bales were later recovered from the water and a field test yielded 

positive results for the presence of cocaine and heroin.1 In 

total, 146.5 kilograms of cocaine and 8.53 kilograms of heroin 

were seized. 

The defendant and the five others on board the vessel 

were indicted on one count of conspiracy to import five kilograms 

or more of cocaine and one kilogram or more of heroin into the 

United States, 21 U.S.C. §§ 952(a), 960, 963, and one count of 

conspiracy to possess and distribute five kilograms or more of 

cocaine and one kilogram or more of heroin on board a vessel within 

U.S. customs waters, 46 U.S.C. §§ 70503(a)(1), 70504(b)(1), 

70506(a).2 The government initially offered the defendant a plea 

agreement, wherein the government agreed to recommend a sentence 

of 108 to 135 months, but the defendant rejected it, opting instead 

to go to trial. However, on the morning that trial was scheduled 

                                                             1 Subsequent chemical testing confirmed that the substances 

were in fact cocaine and heroin. 

2 The indictment also charged two of the codefendants with 

attempting to reenter the United States without permission after 

having been deported. 8 U.S.C. § 1326(a). 
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to begin, the defendant entered a guilty plea, with no plea 

agreement. The trial proceeded against four of his codefendants, 

who were ultimately convicted, while the fifth also pled guilty. 

The probation office calculated the defendant's base 

offense level as 38, given the drug quantities at issue, and 

calculated an overall adjusted offense level of 36 based on the 

defendant's acceptance of responsibility. The defendant had no 

criminal history points, placing him in criminal history category 

I. A total offense level of 36 and a criminal history category of 

I yielded a guidelines sentencing range of 188 to 235 months' 

imprisonment. The counts carried a mandatory minimum sentence of 

120 months. 

In its sentencing memorandum, the government requested 

a sentence of 235 months, at the high end of the guidelines range. 

In support, the government submitted that "maritime drug 

trafficking . . . has significantly increased over the past years" 

and that Puerto Rico "has seen a dramatic increase in overall drug 

use and consumption[.]" The government further stated, "[a]ny 

potential argument that the defendant acted as a mere 'mule' who 

now deserves a downward departure . . . directly snubs the 

potential victims of the defendant's offense[.]" 
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In his sentencing memorandum, the defendant requested 

that the Court "not impose a strict Sentencing Guidelines 

sentence[.]" Instead, the defendant requested a sentence below 

the mandatory minimum or, "[i]n the alternative," the mandatory 

minimum itself.3 At the sentencing hearing, defense counsel 

provided some additional points of reference "for persuasion 

purposes." Drawing the court's attention to "similar" cases 

previously before the District of Puerto Rico, defense counsel 

observed that conspiracy "leaders" received sentences of 

approximately 188 months, whereas other participants received 

lesser sentences, such as 97 months, 125 months, or the applicable 

mandatory minimum. Defense counsel then asked the court to 

consider the fact that the defendant was a "minor participant" in 

fashioning its sentence. In response, the district court 

acknowledged that the government's sentencing memorandum "assumes 

that [the defendant] may be a mule[.]" 

 The prosecutor immediately disputed that the defendant 

was a lesser participant, stating that the government believed, 

based on the debriefing of a coconspirator, that the defendant was 

                                                             3 The defendant's sentencing memorandum posits the statutory 

minimum as 60 months rather than 120 months, a mistake brought to 

the district court's attention by defense counsel at the outset of 

the sentencing hearing. 
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an organizer of the drug-trafficking scheme in question. "So that 

being said and following in line with the cases that [defense 

counsel] mentioned," the prosecutor argued, "it would behoove this 

Court to sentence him within this guideline range." 

 As the hearing drew to a close, defense counsel pushed 

back on the suggestion that the defendant held any kind of 

leadership role. Without speaking directly to defense counsel's 

argument, the district court moved directly to allocution. Noting, 

inter alia, the defendant's status as a father, his lack of a 

criminal record or history of substance abuse, and his past illegal 

entry into the United States, the court imposed a sentence of 188 

months' imprisonment.4 The court did not indicate whether the 

defendant's request for a below-guidelines sentence had been 

entertained as a motion, or denied as such, and the court made no 

findings concerning the only fact debated at the hearing; i.e., 

defendant's alleged role as an organizer of the conspiracy. The 

court only noted that it had "taken into consideration the 

arguments of counsel[.]" 

                                                             4 Over a year after the sentencing hearing, the district court 

granted the defendant's motion to reduce his sentence, based on 

the U.S. Sentencing Commission's change to the drug quantity table, 

made retroactive pursuant to 28 U.S.C. § 994(u). The court reduced 

the defendant's sentence from 188 to 151 months. 
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II. Analysis 

On appeal, the defendant attacks the reasonableness of 

his sentence. Such a challenge "involves a procedural as well as 

a substantive inquiry." United States v. Politano, 522 F.3d 69, 

72 (1st Cir. 2008) (citing Gall v. United States, 552 U.S. 38, 51 

(2007)). "We first determine whether the district court made any 

procedural errors" such as "selecting a sentence based on clearly 

erroneous facts[.]" Id. (quoting Gall, 552 U.S. at 51). In the 

absence of procedural error, "we next turn to the substantive 

reasonableness of the sentence actually imposed[.]" Id. "We 

review preserved objections to both the procedural and substantive 

reasonableness of a sentence for abuse of discretion." United 

States v. Medina-Villegas, 700 F.3d 580, 583 (1st Cir. 2012). 

Where a claim has not been preserved, our review is for plain 

error. Id. This entails four showings: "(1) that an error 

occurred (2) which was clear or obvious and which not only (3) 

affected the defendant's substantial rights, but also (4) 

seriously impaired the fairness, integrity, or public reputation 

of judicial proceedings." Id. (quoting United States v. Duarte, 

246 F.3d 56, 60 (1st Cir. 2001)). 

The defendant lodges both procedural and substantive 

complaints, but we need only address one: sentencing based on 
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erroneous facts. The defendant claims that the district court 

erred by allegedly relying upon the government's unsupported 

assertion that the defendant was an organizer of the conspiracy, 

which the defendant directly and explicitly challenged when it was 

raised for the first time at the sentencing hearing. 

On appeal, the government has made no attempt to defend 

its assertion that the defendant was a "leader" or "organizer." 

In fact, at oral argument, the government pointed to no evidence 

on the record that the defendant was an organizer and, indeed, 

conceded that there was no such evidence. In any event, the record 

tends to belie the government's abandoned claims of leadership. 

First, the offense conduct articulated in the PSR, which did not 

attribute to the defendant an aggravating-role enhancement, 

describes all defendants as having "equal roles in the conspiracy." 

The government did not file an objection to the PSR or seek a 

sentencing enhancement. Second, the government's sentencing 

memorandum anticipated that the defendant would claim a mere bit 

part in the affair. Rather than countering that the defendant 

played a major role, the government protested that any downward 

variance on this basis would snub the potential victims of the 

offense. As the district court noted, this position assumes that 

the defendant was, in fact, a minor participant. Finally, at the 
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trial of the defendant's confederates, counsel for one of the 

defendants told the jury that the conspirators who pled guilty, 

rather than those on trial, were the ones "responsible" for the 

scheme. The government objected to this claim for referring to 

facts not in evidence. The court sustained the objection. The 

government may find it convenient for the pleading defendants to 

be "responsible" for the conspiracy now that their codefendants' 

trial has closed, but what is sauce for the goose is sauce for the 

gander. The record cannot abide the government's volte-face. 

Even if we assume that the defendant did not adequately 

preserve his objection,5 however, "it is impossible to determine, 

based on this record, whether a clear and obvious error (or for 

that matter, any error at all) occurred." United States v. Mendez, 

___ F.3d ___, No. 14-1566, 2015 WL 5306457, at *4 (1st Cir. 2015). 

From start to finish, the sentencing hearing centered almost 

                                                             5 It is typically the defendant's responsibility to police 

the adequacy of the record by objecting to any deficiencies in the 

district court's explanations. See United States v. Gilman, 478 

F.3d 440, 447 (1st Cir. 2007). But on the facts of this case, 

where defense counsel engaged in a highly consequential factual 

dispute before the sentencing court, and where the government's 

position in that dispute had little to no support in the record, 

and where the district court failed to send any signal as to how 

its resolution of the critical question played into its sentencing 

rationale, we cannot justly lay sole responsibility for the 

record's ambiguity at the feet of the defendant. 
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entirely on the question of whether the defendant was a leader or 

organizer as opposed to a mere minor participant in the conspiracy. 

Yet, the record is silent as to how the court resolved that 

question. 

"While we have on occasion gone to significant lengths 

in inferring the reasoning behind, and thus in affirming, some 

less-than-explicit explanations by district courts, there are 

limits. If we are in fact wholly unable to discern the court's 

rationale, appellate review is unworkable and a remand is 

necessary." Id. (internal citations and quotation marks omitted). 

Such is the case here. 

On the central question presented at the sentencing 

hearing, the court merely observed in closing that it had "taken 

into consideration the arguments of counsel to sentence him to the 

minimum of the guideline range[.]" But the sentence itself is one 

that neither party clearly requested, and it therefore offers us 

no insight into whether the court did or did not find the 

defendant's role to be minor or major. Perhaps the court 

understood the defendant to have requested a sentence at the low 

end of the guidelines range rather than a sentence below the 

guidelines range, but, here too, inferences from the record point 
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in both directions and frustrate our capacity to engage in a 

meaningful analysis. 

Although the law "does not require a district court to 

be precise to the point of pedantry," United States v. Fernández–

Cabrera, 625 F.3d 48, 53 (1st Cir. 2010), we must be able to 

ascertain the court's findings to engage in effective appellate 

review. See Mendez, 2015 WL 5306457, at *5. "We cannot do that 

here and, therefore, are unable to effectively consider even the 

first prong of plain error review." Id. 

III. Conclusion 

 The Court's holding today is an exceedingly narrow one, 

confined to the unique and opaque record before us. Where the 

sentencing hearing is largely devoted to a single, highly material 

issue debated by the parties, and where resolution of that issue 

in favor of the prosecution would be clear error, we need to know 

how the court resolved the question in exercising its broad 

sentencing discretion in order that we may perform our appellate 

function of determining whether the sentencing was procedurally 
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correct. For the reasons stated above, the defendant's sentence 

is VACATED and the action is REMANDED for re-sentencing.6 

                                                             6 We make no comment on the appropriate sentence that may 

follow a properly conducted sentencing hearing. In addition, we 

need not address the defendant's contention that the district court 

committed procedural error by failing to apply the "safety valve" 

provision of the sentencing guidelines that permits relief from 

otherwise mandatory minimum sentences if certain criteria are met. 

See 18 U.S.C. § 3553(f); U.S.S.G. § 5C1.2. We recognize that the 

defendant's sentencing memorandum appears to light upon the 

elements of a safety valve reduction, however ungracefully. A 

defendant does not need to incant the magic words "safety valve" 

in order to invoke its protections, but the defendant also bears 

the burden of raising the issue with sufficient clarity. United 

States v. Richardson, 225 F.3d 46, 53 (1st Cir. 2000) ("The 

defendant bears the burden of showing his entitlement to a safety 

valve reduction."). We express no opinion as to whether that 

threshold was met here or whether the defendant qualifies under 

the relevant provision. The district court may evaluate the 

defendant's qualifications in the first instance upon remand.