* Of the Northern District of Illinois, sitting by designation.



# United Stat es Court of Appeals

For the First C ircuit

Nos. 00-1422 Volume II of II 00-1457 00-1534 00-1560 00-1561 00-1628 01-1150 01-1873 01-2248

UNITED STATES, Appellee,

v. MILTON A. NELSON-RODRIGUEZ; LUIS A. ROMERO-LÓPEZ; MIGUEL A. RODRIGUEZ-RIVERA; EDUARDO ARROYO-MALDONADO; CARLOS BONET-GONZALEZ; ANGEL CHEVERE-GONZALEZ; LUIS CARIBE-GARCIA; RAÚL RIVERA-PÉREZ; VICTOR M. VALLE-LASALLE, Defendants, Appellants.

APPEALS 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 , Lynch, Circuit Judge , and Shadur, * Senior District Judge .Marlene Aponte Cabrera for appellant Nelson-Rodriguez.

Rafael F. Castro Lang for appellant Romero-López. Jose A. Suarez-Santa for appellant Rodriguez-Rivera. Raymond L. Sanchez Maceira for appellant Arroyo-Maldonado. Mauricio Hernandez Arroyo for appellant Bonet-Gonzalez. Raymond Rivera Esteves for appellant Chevere-Gonzalez. Marlene Gerdts for appellant Caribe-Garcia. Linda George for appellant Rivera-Pérez. Luz M. Rios Rosario for appellant Valle-Lasalle. William C. Brown , Attorney, U.S. Department of Justice, with whom H. S. Gar cia , United States Attorney, was on brief for appellee.

February 7, 200313 The defendants were convicted under 21 U.S.C. § 846, n o t

21 U.S.C. § 841, but they cha llenge § 841 because § 846 makes it unlawful to attempt or conspire to commit the offenses listed in § 841. Therefore, the constitutionality of § 846 is dependent upon the constitutionality of § 841.-55- H. Apprendi (Nelson, Rodriguez, Arroyo, Bonet, Chevere, Caribe, Rivera, and Valle) All of the appellants except for Romero, who pled guilty, argue that their sentences were imposed in violation of Apprendi v. New Jersey , 530 U.S. 466 (2000). Apprendi held that "[o]ther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submittedto a jury, and proved beyond a reasonable doubt." Id. at 2362-63. The defendants raise several distinct Appr endi claims, and we address each in turn. 1. Facial Challenge to 21 U.S.C. § 841 The defendants make a facial chall enge to 21 U.S.C. § 841. 13 Section 841(a) makes it unlawful for any person to knowingly or intentionally distribute or possess with intent to distribute a controlledsubstance. Section 841(b) lists the penalties for violation of section 841(a), which vary depending on the drug type andquantity. Defendants say this renders th e statute facially unconstitutional. This argument about § 841 is foreclosed by United States v. Collazo-Aponte , 281 F.3d 320 (1st. Cir. 2002), which held that "there is nothing in the statutory language that explicitly defies-56-

Apprendi " because "[t]he statute is silent as to who makes these findings and under what burden of persuasion." Id. at 325. Our decision in Collazo-Aponte is consistent with the decisions of all circuits that have addressed this issue. See, e.g. , United States

v. Buckland , 289 F.3d 55 8, 56 2 (9th Cir. 2002) (en banc); United States v. McAllister , 272 F.3d 228, 232 (4th Cir. 2001); United States v. Brough , 243 F.3d 1078, 1079 (7th Cir.), cert. denied , 534 U.S. 889 (2001). Collazo-Aponte similarly rej ected the claim that § 841(b) includes a mens rea requirement as to the ty pe a nd quantity of drugs. Section 841(a) requires the defendant to "knowingly or intentionally" possess controlled subs tance s with an intent to distribu te. T he defendants argue that this mens rea requirement applies to all elements of the crime, including those listed in § 841(b). However, as we held in Collazo-Aponte , "The plain language of § 841(b) requires the government to prove only that the offense 'involved' a particular type and quantity of drugs, not that the defendant knew that he was distributing that particular drug type andquantity." 281 F.3d at 3 26. The presumption in favor of a scient er requirement does not apply in this case because the elements in § 841(b) only set the penalty and do not cri minal ize otherwise innocent conduct. 2. Vague Allegations in Indictment Defendants argue that the indictment was inadequate in that it-57-

made only vague allegations as to the ty pe a nd quantity of the drugs involved in the conspiracy. It is true that Apprendi considers any fact (other than a prior conviction) that increases the penalty for a crime beyond the statu tory maximum to be an element of the crime. B ut th e indictment here easily meets this requirement. The superseding indictment charged that the defendants possessed with intent to distribute over 1,000 kilograms of cocaine, five kilograms of heroin, and 5,0 00 pounds of marijuana. Furthermore, it provided the drug type and quantity for each of the planned importations at issue at trial, stating for example that Arroyo and Rivera met "two other persons known to the GrandJury," CIS Hernandez and Diaz, to discuss the importation of approxim ately 1,200 kilograms of cocaine into Puerto Rico in May 1997, and that Rivera, Torres, and Chevere received a shipment of 250 kilograms of cocaine in July 1997. Such detail is more than sufficient to meet Apprend i 's mandate, and we therefore reject defendants' claim. 3. Lack of Jury Determination of Drug Type and Quantity Defendants argue that their sentences must be vacated because the jury did not determine drug type or quantity. In fact, the jury verdict sheet asked simply whether a particular defendant was guilty of the one count in the indictment, a copy of which was provided to the jury. The indictment charged that the defendants didunlawfully, knowingly, willfully, and intentionally combine, conspire, confederate, and agree together with divers-58-

other persons to the Grand Jury known and unknown, to possess with intent to distribute amounts o f coca ine, a Schedule II narcotic drug controlled substance, which amounts of cocaine exceededOne Thousand (1,000) kilograms; heroin, a Schedule I, Na rcot ic Drug Controlled Substance, which amounts of heroin exceededFive (5) kilograms; andmarijuana, a Schedule I controlledsubstance, which amounts exceeded Five Thousand (5,000) pounds of marijuana (emphasis added). It also specified particular amounts and kinds of drugs for transactions in which those defendants participated. We un ders tand the argument to have several parts, including first that the jury, at a minimum, had to decide the drug quantity andtype for the underlying conspiracy (to the extent of determining a quantity which sets the maximum sentence under § 841 that would be applicable to the conspirators). The argument moves to another level with the assertion that it was error for the trial judge to deny the requests of several defendants that the jury make

an individualized determination as to the drug type and qu antity which could be attributed to that defendant. Both arguments have in common the assertion that Apprendi required these issues to be submittedto the jur y in light of the fact that the defendants receivedsentences greater than the default statutory maximum. The relevant default statutory maximumis based on distribution of less than 50 kilograms of marijuana, which produces a maximum sentence of five years for f irst felony drug convictions and ten years if there is a prior such conviction. 21 U.S.C. § 841(b)(1)(D). It is common ground, and the government concedes, that th e-59-

defendants were entitled to some form of jury determination as to quantity -- whether general or individual is a separate question -- before being subject to more than the defaul t stat utory maximum. He re, t here was no jury determination of either sort. One might suppose from the indictment quoted above that the jury necessarily foundthe quantities there specified, but in fact review of the jury instruc tions confirms that the jury was asked only to determine whether there was a conspiracy as charged, not whether it coveredany specific amounts of drugs. The government does not claim otherwise. However, the jury's failure to determine drug type and amount is not fatal if the evidence overwhelmingly establishes the amount. UnitedS tates v. Cotton , 535 U.S. 625 (2002). In this instance,

our review shows that this is so as to all defendants, whether the test is plain error or harmless error and whether the figure relates to the overall conspiracy or to the individual defendant. We will return to these calculations in due course. But for the sake of future litigation, it is useful to say something more about both the requirements for preservation of Apprendi claims and the problemof general versus specific findings as to amount of drugs. We begin with the latter. In United States v. Derman , 298 F.3d 34, 42-44 (1st Cir. 2002), this court ruled that it was sufficient to satisfy Apprendi if the jury found that the conspiracy charged was to distribute, or-60-

poss ess with intent to distribute, a specific quantity (assuming that this figure triggered the higher maximum sentence at issue). If the defendant were conv icted of participating in such a conspiracy, this necessarily meant that he was liable, for Apprendi purposes, for the quantity of the overall conspiracy. We therefore held that there was no Apprendi error where a jury has determined that the conspiracy involved a type and quantity of drugs sufficient to justify a sentence above the default statutory maximum and has found a particular defendant guilty of participation in the conspiracy[.] [In this situation,] the judge lawfully may determine the drug quantity attributable to that defendant and s ente nce him accordingly (so long as the sentence falls within the statutory maximum made applicabl e by the jury's conspiracy-wide drug quantity determination).

Derman , 298 F.3d at 43. Anumber of other circuits have taken the same view as to the issue required to be decided by the jury if the default maximum is to be exceeded. See UnitedStates v. Thomas , 274 F.3d 655 (2dCir. 2001); United States v. Patterson , 241 F.3d 912 (7th Cir. 2001); United States v. Nance , 236 F.3d 820 (7th Cir. 2000) . Of course, such a jury determination by itself merely es tab lishes a new statutory maximum under Apprendi ; it does not set the defendant's guideline sentence, which will ofte n b e less than the statutory maximumand which depends on numero us d eterminations specific to the individual defendant, including role in the offense, attributed relevant conduct, past criminal history, and the like. Derman thus answers in this circuit the defendants' claim that-61-

they are entitledunder Apprendi to a defendant-specific finding by the jury as to the amount of drugs properly attributedto an individual defendant in a conspiracy case. But we recognize that this is not necessarily the last word on the subject. Conceivably, borrowing from related doctrines, one could co nstru ct a foreseeability test of some kind -- attributing to each defendant the amount that the individual agreed upon, actually handled, and reasonably could have foreseen that others would handle -- and could ask the jury by special interrogatories to identify such an amount. Derman itself involved a relatively simple conspiracy: growing marijuana in an underground greenhouse, first on Derman's property, then on another's. See 298 F.3d at 37. In such cases, it would be a simple matter for the government to indict on the charge that a particular defendant joined an agreement to possess the quantity of drugs grown in the greenhouse, with the intent to distribute that quantity, and to seek a special verdict to that effect. That simple approach may break down for more complex conspiracies involving multiple transactions of different amounts of drugs imported at different times, with a shifting cast of actors. A series of problems implicating sentencing then arises. Aparticular defendant, for example, may have agreed to import seven kilograms of a drug, but not agreed to import ten, although it was reasonably foreseeable to him that his coconspirators would-62-

import ten. Or a particular defendant may have gone in and then out of a conspiracy. See Edwards v. United States , 523 U.S. 511 (1998). There may be one conspiracy; there may be multiple conspiracies. Or a defendant may raise Pinkerton issues. See Pinke rton v. United States , 328 U.S. 640 (1946). Some of thes e problems might be s olv ed by more specificity in indictments, by tailored instructions, and by special verdicts. Such an endeavor would pose issues of its own too numerous to recount in full. It would implicate the instructions that define conspiracy, itself a tangled subject with built-in tensi on. It couldalso hav e practical disadvantages for some defendants by compromising later arguments they might otherwise make to the judge concerning the application of the sentencing guidelines. But Apprendi itself is a recent innovation; it is too early to expect all of its implications to be worked out, and only the Supre m e Court can provi de final guidance. It is enough here that Derman provides provisional guidance for the circuit andthat the outcome for the defend ants in this case would not change even if Derman were overturned. In explaining this last determination, we consider first the level of review to which each defendant is entitled and then examin e separately the evidence bearing on drug quantity attributable to each individual defendant.14 Apprendi was decided on June 26, 2000. We have been asked

here to evaluate whether there was Apprendi error in two trials, one of which took place before Apprendi was decided and the other of which began after Apprendi . These cases were indicted in 1998, and the first trial came to verdict in October 1999. Five of the six appellants convicted at t his fi rst trial were also sentenced before the Apprendi decision; Caribe, the sixth, was sentenced on December 15, 2000. Valle and Rivera were convicted at the second trial, which began in September 2000, after Apprendi . -63- a. Preservation of Objection Valle's appeal raises the question, new to us, of what must be done at trial to preserve an Apprendi objection. Valle was convictedat the second trial, after the Appr endi decision. 14 In

our only case holding an Apprendi objection pres erve d, the objection was raised both at trial and at sentencing. United States v. Bailey , 270 F.3d 83, 88-90 (1st Cir. 2001). Apprendi is primarily about se nten cing, but it also has implications for indictment and trial, at least in relation to a sentence which rests on facts which elevate the s entenc e above the statutory minimum. For future cases, we think it sufficient if the defendant raises the issue at sentencing. The defendant, of course, has no interest in being sentenced above the maximum and no incentive to req uest that the jury specifically determine those facts whi c h wouldcarry him a bove that level. The government, on the other hand, d oes have an interest in going above the maximum, so it shouldbear the burden of requesting submission of the issue to the jury. F urther, a defendant will not know whether there is an-64-

Apprendi error until sentencing, and then only if the court considers a sentence above the maximum. An object ion from defendant at the point of sentencing will be timely. Rivera requested before the jury was charged that the district court submit the question of drug quantity and type to the jury in

a special verdict. Valle joined in this initial objection. Rivera renewedhis objection at sentencing, but Valle did not. The government argues that Valle waived his Apprendi claim by failing to renew his objection after the jury was charged or at sentencing. The di stri ct court denied Rivera and Valle's request, presumably because this court had not yet held that Apprendi applied to § 846 prosecutions; under prior circuit law, the drug quantity and type determination for sentencing purposes was for the judge to decide. See, e.g. , UnitedStates v. Lindia , 82 F.3d 1154, 1160-61 (1st Cir. 1996). It was not until January 2, 2001, some three months after the trial judge acted here, that this circuit decided that Apprendi applied to §§ 841 and 846. United States v. Baltas , 236 F.3d 27, 40-41 (1st Cir. 2001). Thus, this case may be viewed as a transition case to a new post- Apprendi regime, before this co urt applied Apprendi to prosecutions under §§ 841 and 846. In this transition context, where the defendant did raise the issue and ask f or a special verdict, we have sympathy for the argument that this is enough to p reserve the Apprendi objection. Still, given Bousley v. Unite d-65-

States , 523 U.S. 614 (1998), the waiver analysis is very complicatedand we prefer to assume rather than decide that the issue was preserved in these circumstances. b. Valle Valle's sentence of 360 months exceeds the default statutory maximumfor cocaine offenses of twenty years and so raises a valid claim of Apprendi error. The jury found Valle guilty beyond a reasonable doubt of participating in a drug conspiracy. The only transaction in which Valle was alleged to be a participant was the planned importation of 1,100 kilograms of cocaine in the summer of 1997. Therefore the jury must have found that Valle participated in this transaction. The only issue is the type and amount of drugs involved in this transaction, an issue that appears to have been un disput ed at trial. See, e.g. , United States v. Swatzie , 228 F.3d 1278, 1283 (11th Cir. 2000) (affirm ing wh ere there was no evidentiary basis for the jury to findthat the defendant had possessed cocaine with intent to distribute but that the quantity of cocaine involved was less than five grams). CI Hernandez testified on direct examination at the second trial that the transaction involved 1,100 kilograms of cocaine. CI Diaz also testified that the transaction was to involve be tween 1,000 and 1,200 kilograms of cocaine. The drug type and quantity

was not the subject of any questions on cross-examination; indeed,-66-

defense counsels' qu est ions appear to take the drug type and quantity as a given. Nor did defense counsel raise the issue in closing arguments. Finally, Valle does not point to any evidence

on appeal that would cast doubt on the all eged drug type or quantity involved in this transaction. See, e.g. , United States v. Martinez-Medina , 279 F.3d 105, 122 (1st Cir. 2002) (dism issi ng defendants' Apprendi claims under harmless error review in part because neither defendant seriously denied that th e con spiracy involvedat least five kilograms of cocaine). We thus conclude that the Apprendi error as to Valle was harmless.

c. Rivera Any Apprendi error against Rivera was also harmless. Rivera

was sentenced to life imprisonment, while the default statutory maximum for a defendant with a prior felony drug conviction (such

as Rivera) is ten years. The government concedes that Rivera preserved his Apprendi claim because he raised it at trial and at sentencing. The only issue, therefore, is whether the jury must have found Rivera guilty of conspiring to possess at least half a kilogramof cocaine with an intent to distribute. The trial judge

can sentence a defendant with a prior felony drug conviction to life imprisonment based on that amount of cocaine. See 21 U.S.C. § 841(b)(1)(B). At trial, the government produced overwhelming evidence that the transactions in which Rivera participated involved at least-67-

half a kilogram of cocaine. CI Hernandez and CI Diaz testified as to the amounts involved in two planned cocaine importations of 1,100 kilograms and 700 kilograms. Torres, the cooperating defendant, testified that Rivera was involved in the successful i mporta tion of 250 kilograms of cocaine. Their testimony was supportedby evidence from wiretaps and other sur vei llance. Rivera's counsel did not contest the type or amount of drugs involved in any of these importations at trial. Rivera argues on appeal that the jury could not have been sure of the drug type or quantity involved because these were "dry" c onspi racies, which means that the government did not seize any drugs. The amount of the drugs was clear, nonetheless. There is simply no serious argument that the jury could have convicted Rivera believing that he participated in a conspiracy involving less than half a kilogram of cocaine. Rivera also relies on our decision in Collazo-Aponte to argue that an Apprendi error can never be harmless. That case does not standfor this proposition. The defendant in Collazo- Aponte did not preserve his Apprendi error at trial, which means that this court normally would have reviewed his claim under plain error review and, as part of that inquiry, examined the evidence against him. We did n ot do so, however, because the government conceded that the error was plain. Collazo-Aponte , 281 F.3d at 324. Thus there was no reason for the court to go through the plain error-68-

analysis. Had the government not made this concession, we would have reviewed the evidence presented at trial to determine whether the defendant's Apprendi claim survived plain error review. d. Arroyo Arroyo's sentence of 324 months was also contrary to Apprendi because it exceeded the ten-year default statutory maxim um f or prior offenders. Arroyo did not raise an Apprendi claim before the distri ct court, and review is for plain error. Arroyo, who was replacedas Rivera's lieutenant when he demanded a million dollars,

was connected only to the first planned impo rtat ion, involving 1,100 kilograms of cocaine. The jury could have convictedhimonly

on this basis. Arroyo did not dispute at trial th e drug t ype or amount i nvolve d in this planned importation, nor does he dispute these facts on appeal. Moreover, no jury could have failed to find beyonda reasonable doubt that the conspiracy involvedsome amount of cocaine, triggering a maximum sentence of thirty years. CI Hernandez testified in great detail about the ir plans to import 1,100 kilograms of cocaine, and CI Diaz testified to s ome o f the same facts. There was no plain error.

e. Caribe We review Caribe's Apprendi claim for harmless error because he raised the claim at sentencing. Carib e was sent enced to 420 months, which was above the applicable five-year statutory maximum. This sentence would be authorized by 21 U.S.C. § 841(b)(1)(B) if-69-

the conspiracy involved at least half a kilogram of cocaine or more than 100 kilograms of marijuana. Caribe argues that the error was

no t harmless because the evidence linking him to the dr u g

co nsp iracy was slim and relied primarily on the testimony of government informants of dubious credibility. The evidence against Caribe was much stronger than his re-telling of it; but he h as simply focused on the wrong target. The jury didconvict him of conspiring to possess drugs with an intent to distribute them; the only remaining issue is the type and quantity of the drugs involved. The jury could not have convicted Caribe without finding that he was involved in the conspiracy's fi nal planned importation. Caribe d id no t dispute the type or quantity of drugs involved in that plan at trial and does not do so on appeal. CI Diaz testified that the importation involved 700 kilograms of drugs. There is less evidence about the type of drugs involved. Diaz testified only that there were "700 kilos" involved; he never explicitly said what type of drugs the conspirators planned to import, although one question during his cross-examination referred to cocaine, and he did not correct defense counsel. Nonetheless, it does not matter for Apprendi pur poses what type of drug was involved. The only drugs charged in the indictment were cocaine, heroin, and marijuana. Under § 841(b)(1)(B), Caribe's sentence was permissible

re gard less of what type of drugs were involved, as long as the-70-

conspiracy involved at least 700 kilograms of any of these types of drugs. f. Bonet Bo net's sentence of 360 months was contrary to Appre nd i because it exceeded the ten- year default statutory maximum for prior offenders. His sentence would be valid under 21 U.S.C. § 84 1(b)( 1)(D) as long as he conspired to possess with intent to distribute any amount of cocaine or at least fifty grams of marijuana. He argues that we should review his claim for harmless error because his co-defendant Nelson made an Apprendi objection. However, the trial judge required each defense counsel to make their own objections, and Bonet's counsel did not join in Nelson's Apprendi objection. We review Bonet's claim for plain error. Like Caribe, the evidence tied Bonet to the conspiracy's final plannedimportation in the fall of 1997. The same a nalys is that appliedto Caribe al so applies to Bonet: there was overwhelming evidence of a quantity of "700 kilos," and that quantity of drugs is s uff icient to justify his sentence regardless of whether the type of narcotic was cocaine, heroin, or marijuana. See 21 U.S.C. § 841(b)(1)(B) . g. Nelson Nelson's sentence of 293 months raises a potential Appr endi issue because it exceeded the ten-ye ar d efault statutory maximum for prior offenders. His sentence would be permissible if the-71-

consp iracy involved at least 50 kilograms of marijuana or an y amount of cocaine. See 21 U.S.C. § 841(b)(1)(D). Nelson made an Appren di objection only during trial; we review his claim for harmless error. The primary evidence against Nelson at trial concerned the planned importations of 36 kilograms of cocaine and approximately 6,000 pounds of marijuana. The jury could not have convicted Nelson without finding that he was involved in at leas t one of these ventures. The Apprendi error was harmless because evidence establishing the amount and type of drugs involved in both of these plans was overwhelming and undisputed at trial. CI Hernandez and cooperating defendant Torres both t est ified that Nelson had attemptedto bring 36 kilograms of cocaine into Puerto Rico. There

was some dispute as to Nelson' s moti vations for participating in the transaction, but he never disputed the type or quantity of drugs involved. As to marijuana, the government at trial played a recording of a conversation between Rivera and Nelson in which they discussed importing 6,000 pounds of marijuana. Nelson offered no evidence to rebut this point, and at sentencing did not dispute the contention that the plan involved 6,000 pounds of marijuana. h. Chevere Chevere's sentence of 540 months raised a potential Apprendi issue because it exceeded the five-year default statutory maximum. The sentence would be permissible under 21 U.S.C. § 841(b)(1)(A) as-72-

long as he was invol ved in a c onspiracy involving at least five kilograms of cocaine or 1,000 kilograms of marijuana. Chevere argues that his claim should be reviewed for harmless error because he says his counsel raised an Apprendi claim at sentencing. The transcript of his sentencing hearing shows that his counsel challengedonly Chevere's involvement in the conspiracy and the base level calculation, not the amount or type of drugs. We review his claim for plain error. Although there was not evide nce that Chevere conspired to import marijuana, the evid enc e did tie him to the successful importation of 250 kilograms of cocaine. Torres, the cooperating defendant, testified that Chevere was in ch arg e of security for that importation. There was no dispute about the type or quantity of drugs involved. Torres was directly involved in the importation andte stifie d that he and the other conspirators imported 250 kilograms of coca ine. He d escribed in detail how he and Rivera split the load and how Rivera planned to send his share to New York for distribution. CI Hernandez also testified that Rivera told him that he successfully imported 250 kilograms of cocaine into Puerto Rico. Chevere claims that the transaction never took place despite Torres and Hernandez's testimony to the contrary. To support this claim, he points to the fact that the FBI, which had Rivera's organization under surveillance, didnot see the delivery of-73-

cocaine. However, the jury necessarily found that the transaction didoccur, whether or not it was observed by inves tigators directly. There was no evidence that this importation involved a smaller amount of cocaine. i. Rodriguez Rodriguez's sentence of 151 months was contrary t o Ap prendi beca use it exceeded the default statutory maximum of five years. The sentence would be permissible as long as Rodriguez participated in a conspiracy involving any a mount of c ocaine. We review his claim for plain error because he did not raise it at trial. The only evidence at trial relating to Rodriguez tied him to the successful importation of 250 kilograms of cocaine. Taped telep ho ne conversations played at trial showed that Rodriguez deliveredthe cocaine importedin that transaction to New York, where it was distributed by Figueroa, Caribe's brother-in-law. The jury could not have convicted Rodriguez without believing that he

was involved in this aspect of the conspiracy. The amount and type of drugs in the successful importation were undisputedat tr ial, and thus we reject Rodriguez's Apprendi claim. I. Substantial Assistance Departure (Romero) Romero pledguilty and presents one issue, a sentencing issue,

on his appeal. He argues that the sole reason th e government failedto move that he be given a Section 5K1.1 sentence reduction for substantial assistance was an impermissible one: it was in-74-

retaliation for his telling the truth in his third debriefing, a truth which was exculpatory as to codefendant Ortiz. U.S .S.G. § 5K1.1 provides: "Upon motion of the governme n t stating that the defendant has provided substantial assistance in the investigation or prosecution of another pers on w ho has committedan offense, the court may depart fro m the guidelines." See also 18 U.S.C. § 3553(e) ("Upon motion of the Government, the court shall have the authority to impose a sentence below a level establishedby statute as minimum sentence so as to reflect a defendant's substantial assistance in the investigation or prosecutio n of another person who has committed an offense."). Romero's plea agreement stated that "[t]he United States reserves its o pti on to seek any departure from the applicable sentencing guidelines, pursuant to Sectio n 5K1 .1 . . . if in its discretion the UnitedStates determines that such a departure is appropriate." The agreement further specified that "[t]he defendant agrees that the decision whether to file such motion rests in the sole discretion of the United States." The district court, after hearing proffers from both counsel, rejectedthe argument and declined to take testimony f rom Agent Plichta, who co nducted the debriefings at issue here. Romero argued that there was error in not holding an evidentiary hearing and in not compelling the government to file such a motion. Our review of questions of law is de novo; our review of the-75-

fact-based conclusion of the district court as to the substantial assistance question is for clear error. See United States v. Doe , 233 F.3d 642, 643-44 (1st Cir 2000). Implicit in the question presented is an issue of law: assuming Romero's claims were true, whether it is permissible for the government to decline to s eek a substantial assistance departure in retaliation for a cooperating d e fendant's truthful disclosure of exculpatory information about codefendants. In this area, the government acts under two constraints. First, the law is clear that the government may not base its decision on an unconstitutional m oti ve, such as racial prejudice. See Wade v. UnitedStates , 504 U.S. 181, 185-86 (1992). Second, because the government entered into a plea agreement with Romero, it had to carry out in good faith the obligations it assumed under the agreement. See United States v. Alegria , 192 F.3d179, 186-87 (1st Cir. 1999); see also United States v. Davis , 247 F.3d 322, 325 (1st Cir. 2001). This good-faith req uireme nt applies even though the plea agreement speci fies that the "government retains absolute discretion with respect to the filing of a section 5K1.1 motion." Alegria , 192 F.3d at 186-87. Whether viewed as part of the Wade obligation or the Alegria obligation, the government may not base its refusal to seek a substantial assistance departure on a defendant's truthful disclosure of exculpatory information. We can think of few things-76-

more corrosive to the criminal justice system than prosecutorial retaliation against a witness for telling the truth. If these were the government's grounds, they would both be impermissible and have

no rational relationship to a l egitim ate government end. Cf. Davis , 247 F.3d at 326. The district court held that Romero had not made a threshold showing of improper motivation by the government. See Alegria , 192 F.3d at 187. In explaining to the district court its reasons for not filing a Section 5K1.1 moti on, the government used language that was likely to arouse suspicion. It complained that, because of Romero's statements and writings produced at the third of his four debriefings, the prosecution was forced to provide defense counsel with Brady and Jencks material. Appropriately concernedby these statements, the district judge investigated further and took proffers from both counsel. In the end, the district court was sat isfied that the government hadreason to think Romero was not truthful at the last two debriefings and, while he had given assistance, he had not given substantial assistance. Romero's untruthfulness was shown by the fact that he did not disclose certain information helpful toOrtiz and Nelson until his third debriefing, and that this newlydisclosedinformation appeared to be inconsistent with information providedby another cooperating witness. As the trial judge noted, the government had told the court it intended to use Romero as a-77-

prosecution witness at trial but then did not do so. This decision not to call Romero as a wit ness was entirely consistent with the government's view, expressed at sentencing, that Romero was not truthful. And, as the district court aptly noted, substantial assistance is a higher standard for a defendant to meet than mere cooperation. Romero's failure to be forthcoming in earlier debriefings evidenced his failure to meet this higher standard. When faced with such Section 5K1.1 claims where there is a plea agreement, the government bears the modest burden of production, not persuasion. Alegria , 192 F.3d at 187. The government must offer "facially adequate reasons." Id. at 188. It didso here. The judge, who sat through a lengthy trial and inquiredint o this matter, found nothing impermissible about the government's reasons for declining to seek a substantial assistance departure. Given the judge's extensive exploration of the issue with counsel, no separate evidentiary hearing was required. J. Supervised Release Terms (Bonet and Rodriguez) Bonet and Rodriguez challenge the length of th eir terms of supervised release. The district judge sentenced Bonet to twenty years of supervised release and Rodriguez to fifteen years. Both defendants claim that these terms were invalid because t hey we re disproportionately longer as a percentage of their total years of imprisonment than their codefendants ' te rms. This argument is f oreclosedby 18 U.S.C. § 3742(a), which establishes the l imite d-78-

circumstances in which a defendant can seek review of his sentence. As the Seventh Circuit held in United States v. Rios-Calderon , 80 F.3d194, 198 (7th Cir. 1996), "nothing in § 3742(a) allows review of a sentence imposed in conformity with the Guidelines on the g round that a codefendant was treated differently." See also UnitedStates v. Youngpeter , 986 F.2d 349, 356 (10th Cir. 1993) ("Sentencing differences due to individual conduct as considered by the Sentencing Guidelines do es n ot make a sentence disproportionate."). Rodriguez also arg ues that his supervised release term is barredby U.S.S.G. § 5D1.2. We note at the outset that this claim

was nearly forfeited because of the skeletal manner in which it was raised. See Mass. Sch. of Law v. Am. Bar Ass'n , 142 F.3d 26, 43 (1st Cir. 1998) (claim is forf e ited if it is raised in a perfunctory manner unaccompanied by developed argumentation). But we will give Rodriguez the benefit of the doubt and find that the claimwas not forfeited. Rodriguez's counsel also failed to object to the length of the supervised release term at sentencing, which wouldnormally mean that his claimcouldbe reviewed only for plain error. But we will again give Rodriguez the benefit of the doubt because he was not given advance notice in the presentence report

or by the judge or prosecutor that he could be sentenced to more than five years of supervised release, the maximum term specified in the guidelines.-79-

We now turn to the merits of Rodriguez's claim . U.S.S.G. § 5D1.2 states that supervised release terms for Class A or B felonies shall be "at least three year s but not more than five years." The relevant statute, 21 U.S.C. § 841(b)(1)(A), provides that the defendant shall be sentenced to a term of supervised release of "at least five years." This court's recent decision in United States v. Cortes-Claudio held that these provisions should be read together to mean that a defendant convicted under 21 U.S.C. § 841(b)(1)(A) can be sentenced to only five years of supervised release unless the judge makes a permissible upward departure from the guidelines. 312 F.3d17, 18-19 (1st Cir. 2002). The judge can make such a departure if he finds that there are aggravating circumstances "of a kind, or to a degree, not adequately taken into consideration by the Sentencing Commission," and if the parties are given advance notice that the judge is contemplating making such a departure and of the grounds on which the judge is contemplating departing. Id. at 24; see also United States v. Burns , 501 U.S. 129, 138-39 (1991). The district judg e i n this case did not anticipate this court's decision in Cortes-Claudio and mistakenly concluded that the guidelines did not apply to the length of a supervisedrelease termimposed under 21 U.S.C. § 841. Thu s he d id not give the parties notice of a possible upward departure or make the required findings of aggravating circumstances to support the departure. We15 As we noted above, Apprendi only re quires the jury to

determine the drug type and quanti ty involved in the conspiracy. After the jury has made this determination, the judge can make individualizeddeterminations about the amount of drugs attributable to each defendant. Even though the jury did not make its initial determination, we found no reversible error as to any defendant, so that the judge could still determine the amount of drug attributable to each defendant. -80- accordingly vacate Rodriguez's fifteen-year supervised release term andremand to the district court for re-sentencing as to the length of the term of supervised release. On remand, should the district court find that there are aggravating circumstances of a kind, or to a degree, not adequately taken into consideration by the Sentencing Commission, it must still give the parties advance notice that it is contemplating departing and the grounds of the possible departure and give them an opportunity to respond. K. Other Sentencing Guidelines Issues 1. Drug quantities (Caribe, Bonet, Valle, Chevere, Arroyo, Nelson, Rodriguez)

In sentencing, the district court took into account the amount of drugs that could be attributed to each defendant. Several defendants challenge these determinations, which are distinct from claims that the determination of quantity by the judge rather than the jury violated Apprendi . 15 We review the trial court's factual determinations at sentencing for clear error. United S tate s v. Damon , 127 F.3d 139, 141 (1st Cir. 1997). Legal interpretations of the sentenci ng gui delines are reviewed de novo. United States v.-81-

Ranney , 298 F.3d 74, 80 (1st Cir. 2002).

a. Caribe Caribe argues that the court erred in setting his base offense level at 38, which is applicable to a quantity of 150 kilograms or

more of cocaine. The court set the bas e offense level after determining that 745 kilograms of cocaine coul d be a ttributed to Cari be. The court held that Caribe was directly involved in the conspiracy to import 700 kilograms of cocaine in the fall of 1997. This determination was consistent with the testi mony o f CI Diaz, who testified that Caribe was a key player in several meetings to plan the details of this importation. It also attributedto Caribe 45 kilograms of cocaine out of the suc cessfu l 250 kilogram importation, which he sent to his brother-in-law in New York for distribution. Torres had testified that Caribe was in charge of moving some amount of cocaine up to New York, and that he believed the amount to b e "about forty-five" kilograms. It was not clear

error for the court to conclude that Caribe was responsible, at least in part, for distributing 45 kilograms of cocaine. This total quantity of 745 kilogra ms of cocaine supports the court's decision to set Caribe's base offense level at 38. b. Bonet The court found Bonet responsible for at least 150 kilograms of cocaine, based on Bonet's involvement with the planned i mportation of 700 kilograms of cocaine. This determinati on wa s-82-

not clear error considering Bonet's role in planning this importation. Bonet argues that the court should have reduced the amount of cocaine attributed to the defendants because of the intensive involvement of CIS Hernandez and Diaz in the conspiracy. This is

a type of improper sentencing factor manipulation argument, for which Bonet has the burden. As stated in United States v. Montoya , "garden variety manipulation claims are largely a waste of time." 62 F.3d 1, 4 (1st Cir. 1995). It is insufficient to say that the idea of the conspiracy originated with undercover agents, or that conduct was encouraged by the government, or that the crime exceededin degree or kind what the defendant had done before. Insteadthe defendant must show that elements like these were so

ex tens ive that "the government's conduct must be viewed as extraordinary misconduct." Id. (internal quotations omitted). This standard is high in part because the defendant has the opportunity to raise an entrapment defense at trial. Bonet has fallen far short of this standard; he offers nothing

more than conclusory allegations. Furthermore, Hernandez testified that the Colombians, not he or Diaz, set the amount involved in the cocaine importations. For example, in the 700 kilogram importation, Hernandez testified that the Colombians wanted the organization to import 700 kilograms of cocaine as a test to determine whether its members had the capability to import larger-83-

quantities of drugs in the future. Bonet also bragged to Diaz that he and his team had been drug trafficking for years. It is unlikely, therefore, that government agents encouraged Bonet or his coconspirators to engage in conduct in which they would otherwise have been unwilling to participate.

c. Valle Valle argues that the judge erred in attributing at least 150 kilograms of cocaine to him. He did not raise this claim at sentencing, and therefore it is waived. United States v. Shattuck , 961 F.2d 1012, 1015 (1st Cir. 1992) ("We do not review sentencing guideline disputes which were not preserved before the district court."). We have discretion to review waived guidelines claims in "horrend ous cases where a gross miscarriage of justice would occur." United States v. Haggert , 980 F.2d 8, 11 (1st Cir. 1992). This is not one of those cases. The evidence overwhelmingly tied Valle to the planned importation of 1,100 kilograms of drugs. CI Hernandez testified extensively about Valle's involvement in this transaction and the amount and type of drugs involved. d. Chevere Chevere argues that the district court erred in finding that he was involved in the importation of 250 kilograms of cocaine. Torres testified that Chevere was in charge of security for this successful transaction. Chevere argues that the district court shouldnot have used this transaction to set Chevere's base offense-84-

level, because an FBI agent who was watching the delivery location testified that he did not actually see the drugs being delivered. Whether the FBI a gent saw it or not, there was ample additional evidence at trial that the transaction took place, and that Chevere was involved in it. There was no clear error.

e. Arroyo Arroyo argues error in the attribution of 1,200 kilograms of cocaine to him because the government did not show that he had the capability to transport such a large amount of cocaine. Arroyo argues that the government never proved that Arroyo owned a boat that couldbe used to bring the cocaine to Puerto Rico. Under the sentencing guidelines, if a planneddrug transaction does not take place, the sentencing court should base the defendant's drugquantity finding on the negotiated amount of drugs, in this case 1,200 kilograms. See U.S.S.G. § 2D1.1, cmt. n.12. However, the court can use a lower amount if "the defendant establishes that he

or she did not intend to provide, or was not reasonably capable of providing, the agreed-upon quantity of the controlled substance." Id. Thus the burden is on Arroyo to show that he was not capable of transporting 1,200 kilograms of cocaine. Arroyo has not met his burden in this case and there was no clear error. f. Nelson Nelson argues that the district court erred in attributing 99.5 kilograms of cocaine to him. The court found that he was-85-

involvedin the successful importation of 250 kilograms of cocaine andhad a role in distributing 50 kilograms from that shipment. Torres testifiedthat Rivera gave Nelson some unknown percentage of Rivera's own share of the cocaine from this shipment. Rivera also gave a percentage of his share to Caribe and to Chevere, but Torres didnot know exactly how much each of the three defendants

rece ived; he only knew that together they received 50 kilograms. Nelson and Rivera, in recorded conversations, discussed the price at which they would be able to sell the cocaine. The co urt also foundthat he had a role in the attempted importation of 36 kilograms of cocaine and the transaction involving 6,000 pounds of marijuana. It also could have based its overall findings on Nelson's more general involvement in distributing Rivera's share of the cocaine. We see no clear error in the court's conclusion. g. Rodriguez Rodriguez argues that the district court erred in determining that his base offense level was 34, w hich is applicable when the judge attributes at least 15 kilograms of cocaine to the defendant. The government allegedthat Rodriguez was involved in delivering to Figueroa in New York approximately 45 kilograms of cocaine from the 250 k ilogr am shipment. The government introduced taped conversations in whi ch Rivera told Figueroa that he had arranged for someone to deliver the cocaine t o Fig ueroa. The day before, Rodriguez had flown to New York from San Juan. The government also-86-

introduceda recordi ng of a conversation in which Rodriguez and Rivera discussed the price of cocaine. At trial, Rodriguez disputedthat he hadbeen involved in the cocaine delivery, but the ju ry could not have convicted Rodriguez otherwise. The only remaining issue is the amount of drugs that Rodriguez brought to New York; Torres testified that Rivera sent "a bout 4 5" kilograms there. It was not clear error for the judge to attribute at least fifteen of those kilograms of cocaine to Rodriguez. 2. Minor Participant Adjustment (Bonet)Bonet argues that the court erred in not granting him a twolevel reduction under U.S.S.G. § 3B1.2(b) for being a minor participant in the conspiracy. The commentary to this section states that "a minor participant means any participant who is less capable than most other participants, but whose role could not be described as minimal." U.S.S.G. § 3B1.2(b) cmt. n.5. In seeking a § 3B1.2 adjustment, a defendant "has the burden of proving that he is both less culpable than most others involved in the offense of conviction and less culpable than most othe r mi screants convictedof comparable crimes." United States v. Ortiz-Santiago , 211 F. 3 d 146, 149 (1st Cir. 2000). The court did not err in refusing to grant this adjustment. The testimony at trial showed that Bonet participated in several of the meetings in which the conspirators planned the importation of 700 kilograms of cocaine. Bonet was also responsible f or testing the radio equipment that-87-

would be used. Finally, Bonet told CI Diaz that he had been part of Rivera's drug trafficking team for many years. It was entirely reasonable to conclude that Bonet was no minor participant. 3. Special Skills Enhancements (Valle and Bonet) Section 3B1.3 of the sentencing guidelines provides that the district court can increase the offense level two levels if the defendant "used a special skill, in a manner th at significantly facili tat edthe commission or concealment of the offense." The commentary to this section stat es, "'Special skill' refers to a skill not possessed by members of the general public and usually requiring substantial education, training or licensing. Examples wouldinclude pilots, lawyers, doctors, accountants, chemists, and demol ition expe rts." U.S.S.G. § 3B1.3 cmt. n.3. We review the district court's legal interpretation of the term "special skill" de novo and its factual application for clear error. United States

v. Noah , 130 F.3d 490, 499 (1st Cir. 1997). The district court increased V alle 's offense level by two levels because it found that Valle was going to be the boat captain for the firs t plan ned importation of 1,100 kilograms of cocaine, thus exercisin g a special skill. Valle did not object to this enhancement at his sentencing hearing, and therefore he waived the claim. Hagger t , 980 F .2d at 10-11. Even if this claim were not waived, the record amply supports the determination. The district court enhanced Bonet's offense level by two-88-

levels because it found that his coconspirators were "counting on his skills as a person knowledgeable with communication equipment." The record establishes that Bonet had a special skill. CI Diaz testified that on October 30, 1997, Bonet conducted a test of the 20/40 radio that the conspi rat ors were planning to use to communicate with the Colombians in order to co mplete the planned importation of 700 kilograms of cocaine. A 20/40 radio is one that

can be used to communicate with any part of the world. Bonet showedDiaz the antenna he had put on a tree outside his house. Bonet then set up th e rad io and tried to contact the Colombians; unbeknownst to him, the transmission was i nterce pted by the FBI. Bonet conducted the test over high and low frequency channels and had given the Colombians the same list of frequencies so that the two groups could communicate. This evidence shows that Bonet had

a special skill with in the me aning of § 3B1.3. Accord United States v. Malgoza , 2 F.3d 1107, 1110 (11th Cir. 1993) (term "special skills" applies to an "advanced level of radio operating ability"). Adef endant does not need to have formal education or professional stature to have a special skill within the meaning of § 3B1.3. Noah , 130 F.3d at 500. Instead "a special skill can be derivedfromexperience or from self-tutelage." Id. Nonetheless, the defendant must posse ss ski lls that members of the general public would not have. Bonet's knowledge was more extensive than-89-

merely turning on a radio and speaking; h e also k new how to assemble the radio and its antenna and understood how to determine andlocate the frequencies n eces sary to communicate with the Colombians. The issue remains whether Bonet's skill "significantly facilitatedthe commission . . . of the offense." U.S.S.G. § 3B1.3. Diaz did not testify that Bonet would be the person operating the radios on th e day the shipment was delivered. Two reasonable inferences support a determination that Bonet's special skill substantially facilitated commission of the crime. We review both possible determinations for clear error. First, Bonet's radio test in and of itself aid ed the consp iracy. He was responsible for making sure that Rivera's organization had the necessary ra dio equipment to handle such a large importation of drugs. The Colombians wouldnot be willing to entrust Rivera's org anization with the shipment if it could not make this showing. Even though Bonet was unable to contact the Colombians during hi s ra dio test, it did show Diaz (who, as an intermediary, acted as the Colombians' representative) that Rivera's organization had at least some of the necessary equipment and skills. Second, an inference that Bonet would be the one operating the radios the day of the shipment could not be clear error. Bonet playedan integral part in the meetings. He told Diaz that he was-90-

skilledas a boat captain, but that he would not be the boat captain for this shipment. Bonet argues that he never got a chance to use his special skills to the full extent cont emplated by his

co nspi rators. However, U.S.S.G. § 2X1.1(a) also covers intended offense c onduct that can be established with "reasonable certainty." It was not clear error to conclude with reasonable

ce rtainty that Bonet intended to use his special skill t o facilitate the crime. See United States v. Downing , 297 F.3d 52, 65 (2d Cir. 2002). 4. Firearm Enhancement (Caribe) The district court increased Caribe's offense level by two levels because the court determined that Rivera had a weapon in Caribe's presence during part of the planning of the 700 kilogram importation. U.S.S.G. § 2D1.1 (b)(1) provides that the judge can increase the offense level by two levels "if a dangerous weapon (including a firearm) was possessed." The comment to this section states that the enhancement applies if a weapon was present, unless it is clearly improbable that the weapon was connected with the offense. See U.S.S.G. § 2D1.1(b)(1), cmt. n.3. The judge found that Caribe was present when Rivera gave CI Diaz a gun to gi ve to CI Hernandez. Diaz testified that he met with Caribe and Rivera on August 16, 199 7. At the end of the meeting, Rivera gave Diaz a gun that he asked Diaz to give to Hernandez. Rivera told Diaz that Hernandez could use the gun if he-91-

hadto because it was "clean." Caribe claims that he left the meetin g be fore Rivera gave Diaz the gun, but this claim is not supported by the record. Caribe was the last person to arrive at the meeting, but Rivera gave Diaz the gun at the end of the meeting

as they were saying good-bye. It was not clear error for the judge to determine that Caribe remained at the meeting at this point. Caribe next argues that the government did not establish the requirednexus between the gun and the conspiracy. The prosecution must show that the defendant (or in a conspiracy case, one of his coconspirators) possessed a weapon during th e of fense. United States v. McDonald , 121 F.3d 7, 10 (1st Cir. 1997); United States

v. Thornton , 306 F.3d 1355, 1358 (3rd Cir. 2002). The prosecution does not have to show that the defendant or his coconspirators actually used the gun in perpetrating the offense or intended to do

so. McDonald , 121 F.3d at 10. Once the prosecution has made this showing, the burden shifts to the defendant to establish that a connection between the weapon and the crime was clearly improbable. Id. Caribe argues that the prosecution did not make its required showing because it relied on the uncorroborated testimony of CI Diaz. It is routine, and certainly not clear error, for the trial judge to credit a witness's testimony in making se nten cing determinations, even if the testimony is not corroborated by other evidence. Nor did the judge err in determining that Caribe's coconspirator possessed the gun in connection with the conspiracy.-92-

5. Leadership Enhancement (Caribe) Caribe next argues that the court erred in increasing his offense level by three levels after determining that Caribe was a

ma nage r or supervisor in the organization. Section 3B1.1(b) permits the court to enhance the sentence if "the defendant was manager or supervisor (but not an organizer or leader) and the criminal activity involved five or more participants or was otherwise extensive." The court based its determination on CI Diaz's testimony about Caribe's role in planning the importation of 700 kilograms of cocaine in the fall of 1997. For example, Diaz testifiedthat Caribe "controlled all of the beaches and the group fromHumacao, including the captain and the boats." Caribe also toldDiaz that Orti z, who was supposed to captain the boat that wouldbring the drugs into Puerto Rico, worked for him. According to Diaz, Caribe said that " they[Rivera and Caribe] had the captains, the boats, and the personnel that was needed to carry out the job." This evidence is sufficient to support the court's determination. 6. Downward Departure Requests (Valle and Nelson) The district court denied motions by Valle and Nelson for downwarddepartures in their sentences. Valle argues that the district judge abused his discretion by failing to depart from the sentencing guidelines because of a claimed dispari ty b etween his sentence and the sentence of some of his coconspirators. The16 It is far from clear that there was any disparity. Valle's

sentence of 360 months was great er t han four coconspirators' sentences and equal to or less than four other coconspirators' sentences. -93- argument fails; a court cannot depart from the sentencing guidelines in order to correct a disparity between the sentences of coconspirators. See United States v. Ortiz-Santiago , 211 F.3d 146, 150 (1st Cir. 2000) ("Disparity in sentencing amongst coconspirators, without more, is not enough to justify a downward departure."). 16 Nelson argues for a downward departure based on his

nece ssity defense that he participated in the conspiracy only to

save his kidnapped nephew. This was committed to the nonreviewable discretion of the district court. See United States v. Romero , 32 F.3d 641, 653 (1st Cir. 1994). L. Procedural Errors at Sentencing (Caribe) 1. Right to Speedy Sentencing Caribe claims that his right to a fair trial was violated because of excessive delay in his sentencing. Caribe was convicted

on October 1, 1999. All objections to the Presentence Investigation Report were submitted by April 25, 2000, but he was not sentenced until December 15, 2000. Thus, over fourteen months passed between the date of conviction and the date of sentencing. The Sixth Amendment provides that "[ i]n all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial." U.S. Const. amend. VI. The Supreme Court has not17 A ju dge is also required under Fed. R. Crim. P. 32(a) t o

sentence a defendant "without unnecessary delay." Caribe has not arguedthat the delay in his case violated this rule, and therefore we do not address whether he would have a possible claim thereunder. -94- definitively held that this right extends to the sentencing phase. See Pollardv. United States , 352 U.S. 354, 361 (1957) (assuming without deciding that the sentence is part of the trial for purposes of the Sixth Amendment). However, most circuits that have addre ssedthis issue have held that the right to a speedy tria l extends to this phase. See, e.g. , UnitedStates v. Yelverton , 197 F.3d531, 535-39 (D.C. Cir. 1999); Burkett v. Cunningham , 826 F.2d 1208, 1220 (3d Cir. 1987); United States v. Reese , 568 F.2d 1246, 1252-53 (6th Cir. 1977). Several other circuits , incl uding this one, have assumed without dec iding that the right extends to sentencing. See, e.g. , Katz v. King , 627 F.2d 568, 576 (1st Cir. 1980); United States v. Rothrock , 20 F.3d 709, 711 (7th Cir. 1994) . No circuit has heldthat the right to a speedy trial does not apply at this phase. 17 We assume for the purposes of this appeal that the right to a speedy trial exte nds to sentencing. We analyze the defendant's claimunder the four factors that the Supreme Court se t ou t in Barker v. Wingo , 407 U.S. 514, 530 (1972): the length of the delay; the reason for the delay; the defendant's assertion of his right; and prejudice to the defendant. None of these factors is a necessary or sufficient condition to the finding of a deprivation-95-

of the right to a speedy sentencing. See id. at 533. Applying these factors to the case at hand, we conclude that any right to speedy sentencing was not violated. A fourteen-month delay between the date of conviction and the date of sentencing is long enough to trigger an inquiry into the other Barker factors. See Perez v. Sullivan , 793 F.2d 249, 254 (10th Cir. 1986) (finding

a fifteen-month delay long enough to provoke an inquiry into the remaining three factors); see also Barker , 407 U.S. at 530 ("Until there is some delay which is presumptively prejudicial, there is no necessity for inquiry into the other factors that go into the balance"); Katz , 627 F.2d at 577 (finding that a four-month delay is "not unreasonable and certainly not of constitu t ional dimensions"). Caribe does not make a persuasive showing on any of the other factors. It took approximately seven months for the probation officer to complete the presentence report and for the parties to submit their objections. This time was not excessive given the length of the trial, the number of defendants, and the complexity of the evidence, and indeed Caribe has not challenged this portion of the delay. Much of the later delay can be attributed to Caribe's own motions. He filed a series of motions to continue his sentencing: the first such motions were filed on December 17, 1999 andFebruary 1, 2000 and were denied on January 13, 2000 and February 4, 2000, respectively; the court acceded to later requests-96-

from C aribe's counsel to postpone the sentencing, which had been scheduledfor February 25, 2000; the court eventually deni ed Caribe's December 6, 2000 motion to continue his sentencing on De cem ber 13, 2000 and sentenced Caribe on December 15, 2000. Caribe also filed a motion for a new trial, which the court denied on December 15, 2000. Finally, and most importantly, Caribe has not shown he sufferedany prejudice as a result of the fourteen-month delay. The prejudice resulting from a delay between indictm ent an d trial is obvious: the accused must live with the anxiety and concern of facing trial; he may have to spend an extended length of time in custody; and his defense may be impaired if wi tnesses' memories fade. H owever , "[m]ost of those interests diminish or disappear altogether once there has been a conviction." Perez , 793 F.2d at 256. Thus, the courts have great reluctance to find a speedy trial deprivation where there is no substantial and demonstrable prejud ic e. Id. Caribe argues that the delay made it more difficult for him to challenge the contested factual allegations in the presentence report, but he does not explain which allegations or how he was prejudiced. He also claims that the delay gave the government more time to persuade the probation officer to include unwarrantedenhancements in the presentence report, but as discussedbelow, Caribe was not prejudiced by these communications. Caribe may have been anxious about the length of the sentence the-97-

judge would impose, but such anxiety is present in every sentencing and cannot be sufficient to meet the prejudice requirement. 2. Ex Parte Communications Between Prosecution and Probation Officer Caribe also argues that the prosecution violated Fed. R. Crim. P. 32(b)(6)(B) by having ex parte communications with the probation officer who wrote the presentence report. Caribe apparently wants this court to eliminate the two enhancements added to his offense level and remand the case to the district judge for re-sentencing. Rule 32(b)(6)(B) provides: Within 14 days after receiving the presentence report, the parties shall communicate in writing to the probation officer, andto each other, any objections to any material information, sentencing classifications, sentencing guideline ranges, and policy statements contained in or omitted from the presentence report. After receiving objections, the probation officer may meet with the defendant, the defendan t's counsel, and the attorney for the Government to discuss those objections. The probation officer may also conduct a further investigation and revise the presentence report as appropriate.

The probation officer issued her initial presentence report to both parties on February 3, 2000. This re port did not recommend an enhancement for Caribe's leadership role in the conspiracy or possession of a gun during the conspiracy. Caribe alleges that Agent Plichta then met with the probation officer and reviewed the evidence about Caribe's role in the conspiracy. The probation officer then amended her report to recommend a four-level enhancement for a leadership role and a two-level enhancement for firearmpossession. Caribe's counsel was not given a chance to-98-

rebut Agent Plichta's statements before the amended report was released, although he was able to file formal objections pursuant to Rule 32 and to raise his objections directly to the district court during the sentencing hearing. Caribe filed a motion objecting to the ex parte communications and demanding disclosure of all documents that the probation officer used in preparing the pres enten ce report. The defendant also asked to be able to call the probation officer as a witness at the sentencing hearing to examine the extent of the communications. In a published opinion, United States v. Caribe Garcia , 125 F. Supp. 2d 19 (D.P.R. 2000), the district judge denied the motion. The court held that there was no prosecutorial misconduct because "disclosing information to th e pr obation officer [is] the functional equivalent of disclosing inform ation to the court itself." Id. at 21. The court also stated that Caribe failed to show that he wa s entitled to a downward departure given that the presentence report only recommends a sentence and the final sentencing determination is made "after the Court hears arguments and objections to the presentence report in open court." Id. We ag ree with the second basis for the court's opinion bu t not th e first. The first issue is difficult because of the discrepanc y between the fairly formal procedure contemplated by Rule 32 and the

more informal reality. It is common for one side to speak with the-99-

probation officer, either before or after the report is released. One district court has stated that, in that court's experience, ex pa rte communications between the government and the probation officer preparing the report are " app ropriate and regular." Roccisano v. United States , 936 F. Supp. 96, 103 (S.D.N.Y. 1996). But we could not fu lly embrace such informality without reading Rule 32(b) out of the Federal Rules; Rule 32(b) does require a more structured process, at least in the fourteen-day period following the release of the presentence report. Rule 32(b) is literally read as permitting e x pa rte communications initiated by either party both before and after this fourteen-day period. During the fourt een-d ay period, however, while th e parties are preparing their written objections to the presentence report, the parties, under the rule, should communicate with the probation officer only in writing, and all communications must be disclosed to the other party. This reading of the rule permits most of the present informality, while allowing both sides to know the scope of the objections. See Fed. R. Crim. P. 32(b)(6)(B) advisory committee n otes t o 1994 Amendments (the parties should have a "fair opportunity . . . to review, object to, andcomment upon, the probation officer's report in advance of the sentencing hearing"). There are benefits to informality, but the parties should at least know what issues are on the table

co ncer ning the presentence report so they can present counter--100-

arguments if they desire. Even if contact with Agent Plichta did inadvertently violate Rule 32, Caribe has failed to show that he has suffered any harm as a result. First, he does not explain what he hoped to accomplish by additional discovery or by calling the probation officer to testify at the sentencing hearing. The revised presentence report apparently sets forth the additional evidence the probation officer reliedupon in amending he r reco mmendations, and all other facts appear to be undisputed. Second, as the district court noted, the report is only a recommendation to the court ; th e court is not boundto accept these recommendations. The district court in this

case had notice that the second report was prepared after the prosecut ion' s alleged ex parte contact and gave Caribe's counsel ample opportunity at sentencing to dispute the repor t's recommendations. The court then found that the enhancements were appropriate and sentenced the defendant accordingly. Thus Caribe fails to show what harm he suffered as a result of the e x p arte communications. See, e.g. , Montoya , 62 F.3d at 3 (1st Cir. 1995) ("[T]he sentencing court has ample power to deal with [prosecutorial misconduct impacting the judge's sentencing options] by excluding the tainted transaction from the computat ion of relevant conduct or by departing from the [recommendation].").-101-

M. Conclusion We affirm

the judgments and the sentences and reject each of the defendant's claims, except that we remand , in accordance with this opinion, the issue of the term of supervised release for Rodriguez and vacate that aspect only of his sentence. So ordered.