USCA1 Opinion

UNITED STATES COURT OF APPEALS

FOR THE FIRST CIRCUIT

_________________________

No. 96-1677

UNITED STATES OF AMERICA,

Appellee,

v.

JULIO ROBLES-TORRES, a/k/a ROMERO - 55,

Defendant, Appellant.

_________________________

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF PUERTO RICO

[Hon. Hector M. Laffitte, U.S. District Judge]

___________________

__________________________

Before

Torruella, Chief Judge,

___________

Coffin, Senior Circuit Judge,

____________________

and Selya, Circuit Judge.

_____________

__________________________

Joseph C. Laws, Jr. for appellant.

___________________
Corbin A. Weiss, with whom
_______________
Attorney

John C. Keeney, Acting Assistant

______________

General, Theresa M.B. Van Vliet, Chief,

________________________

Narcotic and

Dangerous Drug Section, U.S. Department of Justice, and Guillermo

_________
Gil, United States Attorney, were on brief, for appellee.
___

__________________________

March 28, 1997

__________________________

SELYA,
SELYA,

Circuit Judge.
Circuit Judge.
______________

Defendant-appellant

Julio

Robles-Torres (Robles) invites

us to set aside

order a new round of proceedings.

his sentence and

Descrying no cognizable error,

we decline the invitation.

I
I

Robles was

part

of a

gigantic drugs-and-money

charged him,

and

among fifty-two

inter alia,
_____ ____

operation.

with conspiring to

conspiring to launder funds.

846 (1994); 18 U.S.C.

defendants

(1994).

The government

841(b)(1)(A),

1956(h)(1994).

since adolescence, requested a

4241

distribute cocaine

See 21 U.S.C.
___

Robles, who claims to have suffered

U.S.C.

indicted as

from schizophrenia

competency determination.

He was examined

See 18
___

by a psychiatrist,

Dr.

Jos

R. Fumero-Vidal, who informed the district court in February

1995

that the appellant was

district

not competent to

stand trial.

The

court provisionally accepted Dr. Fumero-Vidal's opinion

and remitted the appellant to the federal correctional center and

hospital at Butner, North Carolina,

with directions to conduct a

further examination.

Initially, prison officials concurred with

Vidal's assessment

(albeit concluding that,

Dr. Fumero-

at the time

of the

crimes, Robles "was able to appreciate the nature and quality . .

. of his acts").

issued

On November 6, 1995, however, prison

a new evaluation in

which they declared

now competent to stand trial."

officials

that Robles "is

The new report also advised that,

given Robles' "inconsistent clinical presentation

throughout the

course of his hospitalization,"

he

was "malingering,"

that

intentional production of

or

psychological

is, that

went

on to

comprised

his

"method

he

had engaged

false or grossly exaggerated

symptoms, motivated

The report

responsibility."

the examiners had concluded that

state that

of

by

"the

physical

external incentives."

the appellant's

attempting

in

to

elude

malingering

criminal

On December

competent

to stand

18, 1995, the district

trial.

Shortly thereafter,

guilty to both conspiracy charges.

court sentenced him

court found Robles

On May 14, 1996, the district

to a 135-month prison

the applicable guideline range).

Robles pleaded

term (the low end

of

This appeal followed.

II
II

The appellant assigns error in two respects.

alleges that the district

to present the

Ortega,

court

court erred in refusing to

testimony of

a psychiatrist,

at the disposition hearing.

erroneously

sentencing

refused

range (GSR)

asseverations separately.

to

below

in imposing sentence.1

permit him

Dr. Gerardo

Second, he

depart

First, he

Sanz-

avers that the

the

We

guideline

treat these

A.
A.
__

Under

the federal

sentencing

guidelines,

"when

any

factor important to the sentencing determination is reasonably in

____________________

1All references

herein to the sentencing

the November 1995 edition,

See United States
___ _____________

guidelines are to

in effect on the date

v. Harotunian,
__________

(1st Cir. 1990).

920 F.2d 1040,

of sentencing.
1041-42 &

n.2

dispute, the parties

present information

6A1.3.

to the court

an adequate opportunity

regarding that factor."

to

USSG

This provision does not mean that every factual dispute

pertinent

to the

evidentiary hearing

heard

shall be given

imposition

of sentence

demands a

after all, many disputes

full-dress

can adequately be

and determined on a paper record, see, e.g., United States

___ ____ _____________

v. Lilly,
_____

983 F.2d 300, 310-11 (1st Cir. 1992); United States v.

_____________

Shattuck, 961 F.2d 1012, 1015 (1st Cir. 1992); Aoude v. Mobil Oil
________
_____
_________

Corp., 862 F.2d 890, 894 (1st Cir.

_____

an evidentiary

See
___

USSG

1988)

hearing sometimes may be

6A1.3, comment.

Still,

but it does mean that

required at sentencing.

neither the

Confrontation

Clause

nor the

rules

of evidence

apply during

the sentencing

phase of a criminal proceeding, see United States v. Tardiff, 969

___ _____________
_______

F.2d 1283,

1287

(1st Cir.

sentencing

are

and should

the

rule.

In

the

last

evidentiary hearing at the

1992), and

evidentiary hearings

at

remain

the

exception rather than

analysis,

the

decision to

hold

an

time of sentencing or, alternatively,

to eschew such a hearing, lies within the sound discretion of the

sentencing

F.2d at

court.

See Lilly,
___ _____

983 F.2d at

310-11; Tardiff, 969

_______

1286; United States v. Garcia, 954 F.2d 12, 19 (1st Cir.

_____________
______

1992).

We

see

nothing

discretion in this instance.

interrelated sets

remotely

resembling

an

abuse

of

We base this determination on three

of circumstances:

the availability

of other

information,

testimony,

the essentially cumulative

and the

appellant's

nature of

failure to

the proposed

explore alternative

methods of presentation.

In

contradict

the first

the

Investigation

factual

place,

the appellant

predicate

Report (PSI Report),

laid

in

and that

did

the

not seek

to

Presentence

document described

his

also

psychiatric history and treatment in some detail.

had the

benefit

of careful

analyses

of the

The court

appellant's

mental condition from the forensic psychiatrists at Butner, along

with an opinion letter from Dr.

judge

had

presided over

codefendants,

in

the

telephone conversations

were aired.

Fumero-Vidal.

the trial

course

of

of which

between

What is more, the

two of

the appellant's

numerous

the appellant

and his

These conversations supplied the court

contemporaneous

tape-recorded

cohorts

with direct,

evidence of the appellant's mental condition and

degree of impairment during the time frame when the offenses were

being committed.

In

apparently

the

second

place,

Dr.

would have been cumulative.

Sanz-Ortega's

testimony

We reach this conclusion

based

largely on the offer of proof that the appellant's counsel

tendered to the trial judge.

to

testify,

Dr.

In it, he stressed that, if allowed

Sanz-Ortega

would

describe

the

etiology of the disease and its general attributes.

nature

and

Although Dr.

Sanz-Ortega had been the appellant's attending psychiatrist since

1979,

the attorney did

specific

knowledge of

not claim that

he (the doctor)

had any

the appellant's

mental condition

at the

ongoing, and there is nothing

in the

time the conspiracies were

record

that leads us to believe that his general testimony about

Robles' psychiatric

history and the nature of

the illness would

have added perceptibly to the historical data and the comments of

the other

psychiatrists.

As

matters stood,

the

record

was

replete with evidence that Robles had suffered from schizophrenia

for a long

time but

symptomatology)

that its severity

fluctuated, with

sometimes affected his behavior

in

(and, consequently,

the result that

his

the condition

and sometimes did not.

Nothing

the offer of proof either contradicted this evidence or added

a significant new dimension to it.

cavil

that a

sentencing court need

hearing merely to consider

We think it is settled beyond

not convene

an evidentiary

essentially cumulative evidence.

See
___

United States v. Regan, 989 F.2d 44, 46-47 (1st Cir. 1993).
_____________
_____

The final

the

flaw in the appellant's

mode of presentation:

argument relates to

the record reveals

no cogent reason

why the proposed testimony of Dr. Sanz-Ortega could not have been

reduced

to

writing

and proffered

Sentencing hearings are

States
______

v. Ottens,
______

defendant

74

in

the

form

of a

not meant to be mini-trials,

F.3d

357, 360

(1st

report.

see United
___ ______

Cir. 1996),

and

cannot dictate the form of the evidence that he wishes

the court to ponder.

To the contrary, a party has an obligation,

where

reasonably

circumstances

desired evidence

permit, to

in a format convenient

by the sentencing court.

attempt

to present

for ready consideration

To be sure the court may elect to allow live testimony;

and,

moreover, the court may be required to allow live testimony

in a

few instances

(say, when

an

issue takes

a defendant

by

evidence cannot

be

surprise or when

the gist

captured in writing).

not

of the proffered

In this instance, however, the court chose

to hear the doctor's testimony, and

we do not think it was

required

to do so.

A sentencing court

has broad discretion in

determining whether live testimony is, or is not, essential, see,

___

e.g.,
____

United States v. Claudio, 44

_____________
_______

and nothing

in the

testimony.

The disposition hearing did

out

of some

advance,

reason

why

record indicates a

abyss, but,

and the offer of

psychiatrists

conveyed

dark

instant

F.3d 10, 16 (1st Cir. 1995),

who

had

rather,

input,

examined

satisfactorily in

was scheduled

failure to explore this avenue

well

in

suggest any particular

like

that of

Robles, could

a written

live

not spring unexpectedly

proof did not

Dr. Sanz-Ortega's

need for

report.

not

the

other

have

been

The appellant's

weighs against his assignment

of

error.

We have said enough on this score.

Considering all the

circumstances,

sentencing

we

detect

court's

evidentiary

no

denial of

hearing.

See,
___

misuse

the

e.g.,
____

of

discretion

appellant's

Regan,
_____

989

in

request for

F.2d

the

an

at 45-47

(upholding as within the district court's discretion a refusal at

sentencing

to allow live testimony by physicians on the issue of

the defendant's mental capacity).

B.
B.
__

The

construction

appellant

of

the GSR

does not

(offense

challenge

level

the

lower court's

33; criminal

history

category I;

imprisonment range 135-168 months).2

he asserts that the

Nevertheless,

sentencing court blundered in denying

downward departure on the

him a

ground of diminished mental capacity.3

We lack jurisdiction over this claim.

We need

criminal

not tarry.

defendant

cannot

"It

ground

court's discretionary decision not

is by

now axiomatic

an appeal

on

that a

sentencing

to depart below the guideline

____________________

2In
bevue

its appellate

to our

attention.

brief, the

government calls

During the

a possible

disposition hearing,

the

district court noted conclusorily that USSG

This

section permits

court

to

certain mandatory statutory minima

specified criteria set forth

5C1.2 did not apply.

sentence a

when the defendant

in USSG

two-level

Robles

reduction

if

did not receive the

neither the

a defendant

Report

is

silent

in that

these

two-level reduction

court to consider the applicability

of

respect

In cases

2D1.1(b)(4) mandates

meets

appellant nor the government

below

satisfies

5C1.2(1) - (5).

in which the offense level exceeds 25, USSG

a

defendant

criteria.

in fairness,

requested the district

2D1.1(b)(4), and the PSI

and

the prosecutor

now

suggests that this likely was an oversight because he "has reason

to

believe that appellant may be eligible for such a reduction."

Government Br. at

8 n.2.

Under the circumstances, we direct the

district court, on remand,

GSR in

light

Robles'

of

the

to reconsider the computation

government's concession,

and

to

of the

reduce

sentence if the court determines it is appropriate to do

so.

3The appellant's

claim is

premised on USSG

5K2.13, which

provides:
If the defendant committed a non-violent
offense

while

suffering from

significantly

reduced

mental

capacity not

resulting from

voluntary use of

drugs or other intoxicants,

a lower sentence may be warranted

the extent to

which reduced mental

to reflect
capacity

contributed to the commission of the offense,

provided
history

that
does

the
not

defendant's
indicate

criminal

need

for

incarceration to protect the public.

sentencing range."

(1st

Cir.

1994),

United States
_____________

cert. denied,
_____ ______

v. Pierro, 32
______

115

S.

Ct. 919

F.3d 611,

619

(1995).

An

exception

to

this black-letter

rule recognizes

that appellate

jurisdiction

may exist "if it appears that the failure to depart

stemmed from

the sentencing court's mistaken

lacked the

or,

legal authority to

relatedly, from

the

governing departures."

473 (1st Cir. 1994).

deviate from the

primarily

apply.

guideline range

court's misapprehension

United States
______________

of the

v. Gifford, 17
_______

rules

F.3d 462,

We pointed out in Pierro that it is easy to

______

"confuse the exception and the rule."

it plain, however,

impression that it

that when

on differential

32 F.3d at 619.

the decision not

factfinding,

We

to depart

the exception

made

rests

does not

See id.
___ ___

This case

general rule.

fits comfortably within the

Although the appellant

confines of the

argues vociferously that,

in

denying

his

motion

5K2.13,

the district

competency

to stand

reduced

for

a downward

court mistakenly

trial with

the record of

the disposition

with crystalline

downward

if

significantly reduced

crimes of

it

found

mental capacity

conviction.

But the

5K2.13),

claim.

clarity that the

Robles

The

court, in

it had the discretion

that

of

offense (and, thus,

hearing belies this

reaching its decision, understood that

the

different concept

time of the

USSG

concept of

the law governing departures under USSG

transcript reveals

depart

under

equated the

the much

mental capacity at the

misapprehended

departure

suffered

to

from

at the time

he committed

court, after

studying the

evidence and hearing oral argument, made a specific finding

5K2.13 did not

charged in

apply because

the indictment

Robles "did not

while suffering from

commit the

that

acts

a significantly

reduced mental capacity."

The court went on to find, as a matter

of fact,

occurred while

lucid"

that the crimes

Robles was in

a "very

phase, and that his criminal behavior "was the conduct of

person who

was not doing

those acts because

capacity resulting from a mental condition."

of a diminished

This is

more,

no less.

squarely on

The

this

error of law.

appeal.4

an exercise

in differential factfinding

ensuing decision

not to depart

factfinding, unaccompanied

no

was based

by any

detectable

Hence, the departure decision is not reviewable on

See Pierro, 32 F.3d at 619; Tardiff, 969

___ ______
_______

United States
______________

v. Amparo,
______

United States v.
_____________

961 F.2d

288,

F.2d at 1290;

292 (1st

Hilton, 946 F.2d 955, 957 (1st

______

Cir. 1992);

Cir. 1991).

We

need go no further.

____________________

4Although we do not reach the

depart, we
supportable.
of Robles'

note that the

merits of the decision not to

lower court's factfinding

seems fully

The psychiatrists all agreed on the sporadic nature

symptoms, and the tape

Robles' grasp of ongoing

recordings adequately evinced

events at the critical times.

Keeping

in mind

that a defendant who

carry the devoir

of persuasion

downward

departure

capacity,

it is

Laffitte's

demonstrated

on

surpassingly
See,
___

appropriateness of

significantly
difficult
e.g.,
____

reduced

mental

to second-guess

United States
______________

to depart downward based

previous

found that,

as to the

5K2.13 must

v.

Judge

Nu ez______

F.3d 14, 24-25 (1st Cir. 1996) (affirming district

court's refusal
despite a

based

assessment.

Rodriguez, 92
_________

seeks the unguent of

at

diagnosis of

the
a

time

of the

cognizance

on diminished capacity

schizophrenia; district
crime,

defendant's

"inconsistent

capacity").

10

with

court

behavior

diminished

That portion of the defendant's appeal which purports

That portion of the defendant's appeal which purports
_______________________________________________________

to challenge the district court's refusal to depart downward is

to challenge the district court's refusal to depart downward is
_________________________________________________________________

dismissed for want of appellate jurisdiction.

dismissed for want of appellate jurisdiction.
_____________________________________________

is affirmed.
is affirmed.
____________

The judgment below

The judgment below
__________________

The case is remitted to the district court for

The case is remitted to the district court for
_________________________________________________

further proceedings in respect to footnote 2 of this opinion.

further proceedings in respect to footnote 2 of this opinion.
____________________________________________________________

11