United States of America v. Luis B. Fornia-Castillo

*Of the District of Maine, sitting by designation.
United States Court of Appeals
For the First Circuit
No. 03-1069
No. 03-1070
UNITED STATES OF AMERICA,
Appellee,
v.
LUIS B. FORNIA-CASTILLO,
Defendant, Appellant.
APPEALS FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Gene Carter, Senior U.S. District Judge*
Hon. Juan M. Pérez-Giménez, U.S. District Judge]
Before
Selya, Circuit Judge,
Coffin, Senior Circuit Judge,
and Lipez, Circuit Judge.
G. Richard Strafer, with whom Luis Fornia-Castillo, pro se
ipso, was on brief, for appellant.
Edwin O. Vázquez-Berrios, Assistant United States Attorney,
with whom H.S. Garcia, United States Attorney, and Sonia I. Torres-
Pabón, Assistant United States Attorney, were on brief, for
appellee.
May 27, 2005

-- 1 of 46 --

-2-
LIPEZ, Circuit Judge. Defendant-appellant Luis B.
Fornia-Castillo was indicted, tried, and convicted on a single
count of conspiracy to distribute in excess of five kilograms of
cocaine in violation of 21 U.S.C. § 846. He then sought to
dismiss, on double jeopardy grounds, a second indictment charging
him with another count of conspiracy under 21 U.S.C. § 846 and four
substantive counts of possession with intent to distribute in
excess of five kilograms of cocaine in violation of 21 U.S.C. §§
841(a)(1) and (b)(1)(A), and aiding and abetting others in those
offenses in violation of 18 U.S.C. § 2. After the government
dismissed the second conspiracy count, the court denied Fornia's
motion to dismiss the second indictment. Fornia then pled guilty
to each of the four remaining substantive offense counts, expressly
reserving his right to appeal those convictions on double jeopardy
grounds. Fornia was sentenced in separate hearings to consecutive
terms of 210 months' imprisonment for the conspiracy conviction and
365 months' imprisonment for the four substantive counts (to run
concurrently to each other), for a total term of imprisonment of
approximately 48 years. Fornia appeals his convictions and
sentences.
With respect to his conspiracy conviction, Fornia argues
that: (1) the trial court erroneously denied his motion to suppress
evidence obtained in violation of his Fourth Amendment right to
protection against unreasonable searches and seizures and his Fifth

-- 2 of 46 --

1Fornia raises a number of other claims with respect to his
convictions. We have considered them and find them to be either
without merit or waived by his guilty plea in the second case, in
which he reserved only his right to appeal on double jeopardy
grounds. See United States v. Rodriguez-Castillo, 350 F.3d 1, 3-4
(1st Cir. 2003) ("A defendant who subscribes an unconditional
guilty plea is deemed to have waived virtually all claims arising
out of garden-variety errors that may have antedated the plea.").
-3-
Amendment right to protection against self-incrimination; (2) his
pre-trial counsel rendered constitutionally defective
representation at his suppression hearing in violation of his Sixth
Amendment right to effective assistance of counsel; and (3) the
government violated his Fifth Amendment right to indictment by a
grand jury by constructively amending the indictment after its
presentment to the grand jury. With respect to his pleas to the
substantive offenses, Fornia argues that the prosecution was barred
by the Double Jeopardy Clause of the Fifth Amendment because the
government failed to exercise due diligence either by seeking a
superseding indictment to the initial conspiracy charge or by
promptly joining both cases for prosecution.1 Fornia also assigns
numerous errors to his sentences, including the claim that the
court imposed mandatory sentence enhancements in each case based
solely on judicial fact-finding, thereby increasing the maximum
sentence otherwise authorized by jury-found or admitted facts in
violation of United States v. Booker, 543 U.S. ___, 125 S. Ct. 738
(2005).

-- 3 of 46 --

2The agents' suspicions were based in part on wiretap
surveillance of individuals with known histories of involvement in
drug activity and the seizure of plastic wrapping materials found
in the garbage outside the furniture store that tested positive for
cocaine residue.
-4-
After careful consideration of each of Fornia's claims,
tested against the record on appeal, we affirm Fornia's
convictions. Because we are not "convinced that a lower sentence
would not have been imposed" under a post-Booker, non-mandatory
Guidelines regime, United States v. Vázquez-Rivera, No. 02-1818,
2005 WL 1163672, at *10, ___ F.3d ___ (1st Cir. May 18, 2005), we
vacate all of the sentences and remand both cases for resentencing.
I. BACKGROUND
We recount the facts, consistent with record support, in
the light most favorable to the jury's guilty verdict on the
conspiracy charge, United States v. Gonzalez-Maldonado, 115 F.3d 9,
12 (1st Cir. 1997), and as found by the district court after a
suppression hearing, United States v. Ngai Man Lee, 317 F.3d 26, 30
(1st Cir. 2003). We reserve further details for our analysis of
Fornia's individual claims.
On the afternoon of September 9, 1999, Drug Enforcement
Administration ("DEA") Task Force agents conducting visual
surveillance of suspected drug conspirators outside a furniture
store witnessed several people entering and exiting the store with
small boxes and bags that the agents had reason to believe
contained illegal drugs or drug proceeds.2 Later that day, two

-- 4 of 46 --

3As we discuss in Part II.A, the officer also drew his gun in
a defensive posture, out of Fornia's sight, as a safety precaution
while Fornia opened the bag in the trunk.
-5-
suspects left the store carrying a large bag, which they placed in
the trunk of a car. Agents followed the two men as they drove the
car from the furniture store to a bakery, where they met a third
man unknown to the agents, who was later identified as Fornia. The
agents observed the men transferring the contents of the car trunk
to the trunk of Fornia's car, and began following Fornia as he
drove away from the bakery alone.
At around 7:45 PM, agents instructed a member of the Task
Force who was a local police officer in uniform to pull Fornia over
under the pretense of investigating a report of a car stolen from
a nearby shopping center whose description matched Fornia's car.
After identifying Fornia through his driver's license and car
registration, the officer obtained Fornia's consent to search the
car, including a garbage bag in the trunk, which contained several
smaller bags and a shoe box, all filled with large amounts of cash.
Once the officer saw the cash, he handcuffed Fornia and frisked
him, finding no weapon.3 While Fornia was handcuffed, the officer
signaled for assistance from two local police officers who were not
part of the Task Force but who happened to be patrolling the area.
Fornia remained handcuffed until another Task Force member arrived
on the scene, pretending to be another police officer in charge of

-- 5 of 46 --

-6-
security at the shopping center parking lot, and ordered the
handcuffs removed.
The newly arrived agent informed Fornia that the money
would have to be turned over either to the tax authorities, who
would take the cash, deduct a portion, and return the remainder to
Fornia by check, or, in the alternative, to the DEA. Fornia stated
several times that he would prefer to turn the money over to the
tax authorities, observing that their procedure resembled money
laundering. Instead, the officers awaited the arrival of DEA
agents, all of whom were members of the Task Force investigating
the suspected drug conspiracy. When the DEA agents arrived, they
told Fornia that he was not under arrest for carrying a large
quantity of cash. The agents questioned Fornia about his recent
whereabouts and asked where he was going with the large amount of
cash. Fornia did not mention that he had been at the bakery, but
replied that he had bought coffee at the shopping center and that
he was bringing the money to his mother-in-law's house to be
stored. The agents then seized the money and asked Fornia to go to
the DEA office for further questioning. Fornia agreed and drove
his own car to the DEA office, where he answered additional
questions. Fornia was then given a receipt for the cash and left
the DEA office.
On April 26, 2000, a federal grand jury returned a sealed
indictment ("I96") charging 26 named individuals, including Fornia,

-- 6 of 46 --

4The other named individuals were described in order as "head
and owner drug point" (#1), "sources of supply" (#2-4),
"supervisors/managers" (#5-7), "assistants" (#8-15), "counter
surveillance" (#24), and "preparers and packagers of drugs" (#25-
26).
-7-
and unknown co-conspirators with a solitary count of conspiracy to
distribute in excess of five kilograms of cocaine in violation of
21 U.S.C. § 846 during a time period beginning "not later than the
summer of 1997" and continuing through the date of the indictment.
The indictment assigned each named individual a number and
described his or her alleged role within the conspiracy. Fornia,
#21, was included among #16-23 as "transporters of drug[s] or
money."4 The indictment also alleged 74 overt acts, "among
others," committed in furtherance of the conspiracy. Fornia's name
appeared only once in the list of overt acts, in paragraph 50,
which alleged that "[o]n September 9, 1999, (2) Fernando TORRES-
Fernandez and (20) Osvaldo VILLEGAS-Rivera delivered to (21) Luis
FORNIA-Castillo approximately Two Hundred Eighty-One Thousand and
Nine Hundred Twenty-Six Dollars ($281,926.00) of drug proceeds"
(emphasis omitted).
The indictment was unsealed on May 1, 2000, and Fornia
was arrested on a warrant that day. He was later released on bail.
On December 27, 2000, Fornia moved to suppress the evidence,
including his statements, obtained as a result of the September 9,
1999 stop and search of his car and his subsequent interview at the
DEA office. After an evidentiary hearing before Judge Casellas on

-- 7 of 46 --

5Fornia filed a motion to reopen his suppression hearing on
January 18, 2002, in order to supplement the record with facts
relating to his interrogation at the DEA office. Judge Hornby
(sitting by designation) denied the motion to reopen because "[t]he
transcript of the [suppression motion] hearing fully supports the
findings that Judge Casellas made" and because he concluded, based
on an independent review of the record, that the evidence should
not be suppressed.
6Osvaldo Villegas-Rivera was named in I96 as #20, a
"transporter," and in I528 as #3, a "source[] of supply."
7The other named individuals were identified as "sources of
supply" (#2-5), "narcotics transporter[]" (#6), "drug distributors
in [] their respective distribution area or drug point" (#7-12),
and "assistants in receiving and delivering money or drug[s]" (#13-
15).
-8-
February 5-6, 2001, the motion was denied.5 By March 2001, each of
Fornia's 25 co-defendants in I96 had pled guilty.
On August 1, 2001, a federal grand jury returned a sealed
indictment ("I528") charging 15 named individuals, including Fornia
and one other person who had also been indicted in I96,6 and others
unknown, with conspiracy to distribute in excess of five kilograms
of cocaine in violation of 21 U.S.C. § 846 during a time period
beginning "on or about the end part of 1996" and continuing through
the date of the indictment. As in I96, all of the conduct alleged
against Fornia in I528 took place no earlier than "the summer of
1997." I528 identified Fornia as #1, "owner of drugs."7 The
indictment also charged Fornia with four additional counts alleging
substantive offenses in violation of 21 U.S.C. §§ 841(a)(1) and
841(b)(1)(A), and aiding and abetting others in those offenses in
violation of 18 U.S.C. § 2. The substantive offenses were also

-- 8 of 46 --

8The unindicted co-conspirator in Counts Three, Four, and Five
turned out to be Fernando Torres-Fernandez, who was indicted in I96
as co-conspirator #2, and who testified against Fornia at his trial
in I96 after pleading guilty.
-9-
alleged as overt acts #4-6 and #10 committed in furtherance of the
conspiracy charged in Count One.
Specifically, Count Two alleged that Fornia, indicted co-
conspirators #2 and #6, and an unindicted co-conspirator possessed
with intent to distribute approximately 50 kilograms of cocaine
"[o]n or about the end part of 1997." Count Three alleged that
Fornia, the same indicted co-conspirators, and an unindicted co-
conspirator possessed with intent to distribute the same quantity
of cocaine "[o]n or about the beginning of 1998." Count Four
alleged that Fornia, indicted co-conspirator #3, and an unindicted
co-conspirator possessed with intent to distribute approximately 40
kilograms of cocaine "[o]n or about August[] 1999," and Count Five
alleged that Fornia and an unindicted co-conspirator possessed with
intent to distribute approximately 30 kilograms of cocaine "[o]n or
about October[] 1999."8 Additional overt acts alleged in
furtherance of the conspiracy included three instances of drug-
related payments, including an expanded version of paragraph 50 of
I96 alleging that "[o]n September 9, 1999, . . . OSVALDO VILLEGAS
RIVERA[] and an unindicted coconspirator delivered to . . . LUIS B.
FORNIA-CASTILLO approximately $281,926.00 of drug proceeds, money
related to over[t] acts Nos. 6 and 7 herein" (emphasis omitted).

-- 9 of 46 --

9The government filed a similar motion in I528, pending before
Judge Pérez-Giménez, which was "noticed" on or about April 23,
2002.
10The government's motion contained no explanation of why the
government did not seek joinder of the cases during the eight-and-
a-half-month period between August 1, 2001 and April 15, 2002.
-10-
The money was also related to the facts alleged in support of the
substantive offense charged in Count Three. Fornia was arrested on
the second set of charges on August 30, 2001 and held without bail.
On April 15, 2002, more than eight months later and
during the week when Fornia's jury trial in I96 was scheduled to
begin before Judge Carter (who was sitting by designation), the
government moved at a pre-trial status conference, over Fornia's
objection, to consolidate I96 and I528 for trial and sentencing.9
Judge Carter denied the motion, stating: "We are going to try this
case." In a written motion filed the next day upon the court's
instruction, the government explained its reasons for seeking
joinder and for seeking a second indictment instead of a
superseding indictment in I96:10
The counts contained in both indictment[s]
could have been joined in the same indictment
since they are of the same or similar
character pursuant to Fed. R. Crim P. 8(a).
However, since [by] August 1, 2001, [the date
on which the second indictment was returned,]
all the codefendants with the exception of
codefendant Luis B. Fornia-Castillo in [I96]
had already pled guilty[,] the government
elected to file a separate indictment against
fourteen (14) additional codefendants in lieu
of supersed[ing] the indictment in [I96].

-- 10 of 46 --

11This event was also alleged as both a substantive count
(Count Two) in I528 and as an overt act in furtherance of the
conspiracy (Count One) charged in that indictment.
12This event was also alleged as both a substantive count
(Count Three) in I528 and as an overt act in furtherance of the
conspiracy (Count One) charged in that indictment.
-11-
Fornia's trial in I96 began two days later, on April 18,
2002, and continued for five days. The government's first witness
was a member of the DEA Task Force who described the events
depicted on a surveillance videotape, including the arrival and
departure of suspected co-conspirators at the furniture store on
September 9, 1999, the two co-conspirators' rendezvous with Fornia
at the bakery, and the subsequent discovery of the bags of cash in
Fornia's trunk by investigators during the stop and search of his
car.
The government then called an indicted co-conspirator,
Fernando Torres-Fernandez, who had pled guilty in I96, as a
cooperating witness. Torres testified that sometime in late 1997,
Fornia asked him if he had any contacts at the airport who could
assist in shipping cocaine to New York. According to Torres, he
and two other co-conspirators then met with Fornia to arrange a
test shipment of 50 kilograms of cocaine to New York.11 Torres
testified that when the test shipment, which also involved a fifth
individual who worked at the local airport, proved successful, the
same group of four co-conspirators arranged a second shipment of
more than 50 kilograms of cocaine to New York.12 The second

-- 11 of 46 --

13As we have noted, the government had earlier acknowledged in
its motion to consolidate the cases for trial and sentencing that
while it had obtained separate indictments, I96 and I528 were "of
the same or similar character pursuant to Fed. R. Crim P. 8(a)."
The government did not specify the features that made the two
conspiracies "similar." According to the indictments, the
conspiracies in I96 and I528 involved overlapping time periods,
-12-
shipment, however, never arrived at its destination, according to
Torres, because the airport worker had been killed and the cocaine
lost. Torres testified that the four co-conspirators had gone to
the airport several times to try to find the killer.
During Torres' testimony, Fornia's counsel objected
several times on hearsay grounds to Torres' reports of statements
made by other alleged co-conspirators. After one such objection,
the court took judicial notice of the indictment in I528, which was
pending before Judge Pérez-Giménez. Because the events Torres
described were alleged only in I528, and the co-conspirators to
whom Torres referred were indicted only in I528, the court asked
the government whether it could show that the co-conspirators were
also participants in the conspiracy charged in I96 for purposes of
admitting their hearsay statements. The court then asked: "Why
have you indicted in two separate indictments, alleging in the
indictment all of these transactions in case number 528, and now
you are proving those acts and transactions in a separate case,
this one bearing number 96. I don't understand what you are trying
to do." The government responded that "at the time [I96 and I528]
were indicted, they were separate conspirac[ies]."13 The court

-- 12 of 46 --

overlapping participants, and the same objective of distributing
and "possess[ing] with intent to distribute" cocaine "for
significant financial gain or profit." See United States v.
Portela, 167 F.3d 687, 695 (1st Cir. 1999) (determination whether
conspiracies are separate depends on totality of the circumstances,
including factors such as existence of a common goal,
interdependence among participants, and degree to which
participants overlap); United States v. Morris, 99 F.3d 476, 480
(1st Cir. 1996) (using "five-part test for determining whether two
conspiracies are synonymous for double jeopardy purposes," which
inquires whether conspiracies "took place contemporaneously (or
nearly so)," "involved essentially the same personnel," "occurred
at much the same places," are proven by the same evidence, and "are
premised" on the same statutory provision).
14Fornia's receipt of drug proceeds from Torres and a co-
conspirator indicted in both I96 and I528 constituted the only
overt act alleged against him in I96. The same incident was also
alleged as both a substantive count (Count Four) in I528 and as an
overt act in furtherance of the conspiracy (Count One) charged in
that indictment.
-13-
warned, "You can't convict the same defendant two times [for the
same conspiracy]." The court then permitted the government to
proceed with its direct examination of Torres, advising the
government that it would not admit co-conspirator hearsay "until
you tell me that you can connect those co-conspirators to this
conspiracy and not just to the other [one in I528]."
Torres next testified that on September 9, 1999, he had
collected money from several people in order to pay Fornia for
about 40 kilograms of cocaine Torres had purchased from him at a
price of $13,000 per kilogram. Torres testified that the cash
seized from Fornia later that same day represented partial payment
for the drugs after successful resale.14 Torres also identified a
paper bag and a shoe box that had been used to hold the cash, and

-- 13 of 46 --

15This incident was also alleged as both a substantive count
(Count Five) in I528 and as an overt act in furtherance of the
conspiracy (Count One) charged in that indictment.
-14-
identified his handwriting on the containers recording the amount
of cash held in each. Torres went on to state that on September
10, 1999, Fornia had informed him that the cash had been seized by
the DEA the previous day, but that Fornia planned to recover the
cash through a suppression motion or by characterizing the money as
proceeds from his legal motorcycle business. Torres then described
new installment payment procedures Fornia devised for receiving
future payments in order to avoid the possibility of any additional
seizures of large amounts of cash. Finally, Torres described one
additional incident that took place after September 9, 1999, in
which Fornia supplied him with about 30 kilograms of cocaine.15
After the government rested its case, Fornia moved for an
acquittal. His counsel stated that
because this case . . . involved a
conspiratorial time period that would overlap
with [I528], it appears that the evidence that
has been brought here is partially from [I528]
and . . . because of that, I don't know how we
can decide whether this particular conspiracy
has been set forth with all of the elements.
The court asked the government how, in the event Fornia was
convicted in I96, he would "prove[] in the other court that he has
already been convicted of the same conduct that he is charged with
[in I528]?" In response, the government continued to assert that
the conspiracy alleged in I528 was different from the one for which

-- 14 of 46 --

-15-
Fornia was being tried in I96. Eventually, however, the government
represented that it would request dismissal of the conspiracy count
against Fornia in I528.
On April 24, 2002, the jury found Fornia guilty of
conspiracy and found that the quantity of cocaine involved in the
offense exceeded five kilograms. On April 26, 2002, Fornia moved
for a new trial alleging that "the government's failure to provide
required pretrial disclosure materially prejudiced [his] right to
a fair trial" and that "by falsely indicting and prosecuting
[Fornia] for two conspiracies when it knew there was only one, the
government deprived [him] of a fair trial." On June 6, 2002,
Fornia also moved in I96 to "confirm consolidation" of his cases on
the ground that, inter alia, they involved the same alleged
conspiracy. The government opposed Fornia's motion to confirm
consolidation of the cases, arguing that: (1) consolidation had
already been denied; (2) "no substantial public interest [would] be
promoted" by consolidation "[a]t this stage of the proceedings";
and (3) Fornia was estopped from seeking consolidation or had
waived the claim because he had opposed the government's earlier
motion, filed on the eve of trial, to consolidate the cases. On
June 25, 2002, Judge Carter denied both Fornia's motion for a new
trial and his motion to confirm consolidation of the cases, noting
that any double jeopardy concerns could adequately be addressed by
Judge Pérez-Giménez in I528.

-- 15 of 46 --

16By July 2, 2002, each of Fornia's 14 co-defendants in I528
had also pled guilty.
-16-
On July 1, 2002, Fornia filed a motion to dismiss I528 on
double jeopardy grounds. As promised, the government dismissed the
conspiracy count against Fornia in I528 on July 3, 2002. Fornia
then moved in I528 for a change of plea.16 At the change-of-plea
hearing on July 15, 2002, Judge Pérez-Giménez denied Fornia's
motion to dismiss I528. Fornia then pled guilty to the four
remaining counts charging him with substantive drug offenses.
Although Fornia did not enter into a plea agreement with the
government, he expressly reserved the right to appeal his
conviction in I528 on double jeopardy grounds, citing Menna v. New
York, 423 U.S. 61, 62-63 (1975) (per curiam) (guilty plea does not
automatically waive double jeopardy claim).
On October 8, 2002, Judge Carter recused himself from
sentencing, and the case was reassigned to Judge Pérez-Giménez.
Fornia moved in I528 to consolidate both cases for sentencing on
October 25, 2002, but Judge Pérez-Giménez denied the motion. On
the morning of December 5, 2002, Judge Pérez-Giménez sentenced
Fornia in I96 to 210 months' imprisonment. That afternoon, in a
separate sentencing hearing, the court sentenced Fornia in I528 to
365 months' imprisonment to run concurrently as to the four
substantive counts, but consecutive to the sentence in I96. Fornia
timely appealed his convictions and his sentences.

-- 16 of 46 --

-17-
II. I96 CONSPIRACY CONVICTION
A. Suppression of Evidence
1. Validity of Consent to Search
We construe Fornia's Fourth Amendment claim, which he
raises in a pro se brief, as a renewal of his challenge to the
voluntariness of his consent to the search of the bag in his car
trunk. See United States v. Weidul, 325 F.3d 50, 53 (1st Cir.
2003) (consent to a warrantless search "must be voluntary to be
valid"). Fornia alleges that his consent was invalid because it
was coerced by the police officer's drawing of his gun after Fornia
opened the car trunk, requiring suppression of the bags of cash
contained within the larger bag in the trunk. "Typically, whether
consent is voluntary turns on questions of fact, determinable from
the totality of the circumstances. For that reason, a finding of
voluntary consent (other than one based on an erroneous legal
standard) is reviewable only for clear error, and the trial court's
credibility determinations ordinarily must be respected." United
States v. Romain, 393 F.3d 63, 69 (1st Cir. 2004) (citations
omitted).
During the suppression hearing, Officer Alverio, the
police officer who initially stopped Fornia, testified that after
Fornia consented to a search of the car and opened the trunk to
reveal a large bag, he asked Fornia if he would mind opening the
bag. When Fornia began to open the bag, Officer Alverio testified

-- 17 of 46 --

17Fornia maintains on appeal that, as depicted on the video,
he looked back at Officer Alverio before opening the bag, and that
he saw the gun at that moment and felt he had no choice but to
continue opening the bag. Fornia did not testify during the
suppression hearing in order to present his version of events. In
all events, "a district court's choice between two plausible
competing interpretations of the facts cannot be clearly
erroneous." Weidul, 325 F.3d at 53.
-18-
that he drew his gun in a "defensive position" -- out of Fornia's
visual range and pointing at the ground -- because it was too dark
for him to be able to see whether the trunk contained any weapons.
The district court determined that Officer Alverio "provided
credible undisputed testimony that Fornia voluntarily agreed to
allow him to search the vehicle and to examine the trunk."17 The
court specifically found that the officer "kept [the gun] out of
Fornia's view[] and at his side, and placed it back in his holster
when Fornia stepped away from the trunk, all of which were
confirmed by the [surveillance] video" played during the hearing.
The court further found that "the video shows Fornia willingly
reach[ing] in to the open trunk of the vehicle and open[ing] the
bags containing the money."
Because "the evidence presented at the suppression
hearing fairly supports" the district court's factual findings,
United States v. Laine, 270 F.3d 71, 75 (1st Cir. 2001), the
district court committed no clear error in determining that
Fornia's consent to the search of the car trunk was valid. Based

-- 18 of 46 --

18Miranda warnings inform a suspect that he "has the right to
remain silent, that anything he says can be used against him in a
court of law, that he has the right to the presence of an attorney,
and that if he cannot afford an attorney one will be appointed for
him prior to any questioning if he so desires." Dickerson v.
United States, 530 U.S. 428, 435 (2000) (quoting Miranda v.
Arizona, 384 U.S. 436, 479 (1966)).
19Pursuant to Terry v. Ohio, a warrantless investigatory stop
comports with the Fourth Amendment's prohibition on unreasonable
searches and seizures if it is justified by more than an
"inarticulate hunch[]" and is "reasonably related in scope to the
circumstances which justified the interference in the first place."
392 U.S. 1, 22, 20 (1968).
-19-
on those findings, the court properly denied Fornia's motion to
suppress the evidence obtained during the stop.
2. Miranda Claim
Fornia argues that the statements he made during his
entire encounter with the Task Force agents, including those made
at the DEA office, should have been suppressed because he was
subjected to custodial interrogation without first being advised of
his Miranda rights, in violation of his Fifth Amendment right to
protection against self-incrimination. See Dickerson v. United
States, 530 U.S. 428, 435 (2000) (failure to give required Miranda
warnings amounts to Fifth Amendment violation).18 "Miranda warnings
must be given before a suspect is subjected to custodial
interrogation." United States v. Ventura, 85 F.3d 708, 710 (1st
Cir. 1996). By contrast, "[a]s a general rule, Terry stops do not
implicate the requirements of Miranda." United States v. Streifel,
781 F.2d 953, 958 (1st Cir. 1986).19 This is so "because 'Terry

-- 19 of 46 --

-20-
stops, though inherently somewhat coercive, do not usually involve
the type of police dominated or compelling atmosphere which
necessitates Miranda warnings.'" Id. (quoting United States v.
Bautista, 684 F.2d 1286, 1291 (9th Cir. 1982)). A valid
investigatory stop may nevertheless escalate into custody, thereby
triggering the need for Miranda warnings, where the totality of the
circumstances shows that a reasonable person would understand that
he was being held to "the degree associated with a formal arrest,"
Stansbury v. California, 511 U.S. 318, 322 (1994) (per curiam)
(internal quotation marks omitted). Relevant factors bearing on
whether an investigatory stop has evolved into a de facto arrest
include "whether the suspect was questioned in familiar or at least
neutral surroundings, the number of law enforcement officers
present at the scene, the degree of physical restraint placed upon
the suspect, and the duration and character of the interrogation."
Ventura, 85 F.3d at 711 (internal quotation marks omitted). While
we review the court's factual findings for clear error, the
ultimate conclusion whether a seizure is a de facto arrest
"qualifies for independent review" because it presents a "mixed
question of law and fact." United States v. Trueber, 238 F.3d 79,
91, 93 (1st Cir. 2001) (quoting Thompson v. Keohane, 516 U.S. 99,
113 (1995)).
During the suppression hearing, Officer Alverio testified
that once he saw the large quantity of cash contained in the bags

-- 20 of 46 --

20At the suppression hearing, Officer Alverio himself used the
word "arrest" to describe his restraint of Fornia during the stop
of his car. However, Officer Alverio clarified that he restrained
Fornia only for safety purposes and not because he was arresting
Fornia for a crime.
-21-
in Fornia's car trunk, he re-holstered his weapon and handcuffed
and frisked Fornia because he was the sole law enforcement officer
on the scene, and, in his personal experience, people who may be
traveling with large quantities of drug proceeds may also be armed
or may travel with armed escorts. Officer Alverio explained that
he did not remove the handcuffs even after the local police
officers arrived on the scene to assist him because he did not know
the officers.
Fornia argues that the totality of the circumstances
establishes that the stop of his car, while initially a valid
investigatory stop, escalated into a de facto arrest triggering the
need for Miranda warnings. Fornia maintains that the combination
of the officer's display of a gun, his use of handcuffs and a pat-
down search, and his explanation that he was investigating a car
theft would have led a reasonable person to believe he was
effectively under arrest.20 In particular, Fornia argues that he
was subjected to custodial interrogation because Officer Alverio
questioned him while he was handcuffed. Indeed, Officer Alverio
testified during the suppression hearing that he asked Fornia where
the money in his trunk had come from while Fornia was handcuffed,
and that Fornia responded that the money was from his motorcycle

-- 21 of 46 --

-22-
business. While the government did not introduce this particular
statement at trial, Fornia maintains that the statements he made
after the handcuffs were removed in response to questioning by
other Task Force agents should have been suppressed because they
were derived from the same Miranda violation. See United States v.
Byram, 145 F.3d 405, 409-10 (1st Cir. 1998) ("where the Miranda
violation is not merely technical, where there is a substantial
nexus between the violation and the second statement, and where the
second statement is not itself preceded by an adequate Miranda
warning," suppression of subsequent voluntary statements may be
warranted).
The district court concluded that Fornia was not
subjected to custodial interrogation at any time during the stop
and therefore that no Miranda violation occurred. The court
recognized "two arguably coercive facts" in support of Fornia's
Miranda violation claims: Officer Alverio's drawing of his gun and
his use of handcuffs. As the court correctly noted, however,
neither the use of handcuffs nor the drawing of a weapon
necessarily transforms a valid Terry stop into a de facto arrest.
Trueber, 238 F.3d at 94 (officer's drawing of weapon while asking
suspected narcotics trafficker to step out of vehicle at night does
not transform entire investigatory stop into de facto arrest);
United States v. Acosta-Colon, 157 F.3d 9, 18 (1st Cir. 1998) (the
"use of handcuffs in the course of an investigatory stop does not

-- 22 of 46 --

-23-
automatically convert the encounter into a de facto arrest"). As
the court had previously found, Officer Alverio briefly drew his
weapon out of Fornia's view and for defensive purposes only.
Similarly, based on Officer Alverio's testimony, the district court
found that "reasonable safety concerns permeated the [officer's]
decision to use [handcuffs]."
While an officer's drawing of his gun and use of
handcuffs might in some situations weigh more heavily in favor of
a finding that a detention has escalated into a de facto arrest,
the district court found that numerous other factors weighed
against such a determination in Fornia's case. Specifically, the
court observed that the stop took place at the side of "a busy
public street with a heavy volume of traffic," and that, initially,
Officer Alverio "was the only officer on the scene." In addition,
the court found that "the handcuffs were removed when other
surveillance team members arrived, and only remained on [Fornia]
for ten or fifteen minutes." Finally, the court noted that "the
interaction between the . . . officers and Fornia was not
confrontational or bellicose."
These factual findings were not clearly erroneous. Based
on these findings, the court supportably came to the ultimate
conclusion that Fornia's detention was a valid investigatory stop
that did not require Miranda warnings. While a reasonable person
in Fornia's situation would certainly have understood that he was

-- 23 of 46 --

21Fornia specifically notes that if he had been able to testify
at the suppression hearing, he would have described the
conversation he had with the two men he met at the bakery, which
was recorded without sound on the government's surveillance
videotape.
-24-
under investigation for a crime, the stop, given the facts as found
by the district court, "lacked the coercive element necessary to
convert it into something more draconian," based on the totality of
the circumstances. Ngai Man Lee, 317 F.3d at 32. The district
court thus properly denied Fornia's motion to suppress his
statements on the ground that they were obtained as a result of a
violation of his Fifth Amendment right to protection against self-
incrimination.
B. Ineffective Assistance of Counsel
In his pro se brief, Fornia claims that he was deprived
of his Sixth Amendment right to effective assistance of counsel at
his suppression hearing. Under the Supreme Court's decision in
Strickland v. Washington, 466 U.S. 668 (1984), to establish such
a violation, "a defendant must show that counsel performed
unreasonably and that prejudice resulted therefrom." United States
v. Mena-Robles, 4 F.3d 1026, 1034 (1st Cir. 1993). Fornia alleges
that his pre-trial counsel performed deficiently by denying him the
opportunity to exercise his constitutional right to testify at his
suppression hearing, which resulted in the denial of his motion to
suppress evidence.21

-- 24 of 46 --

-25-
The record on appeal, however, is devoid of facts
relating to Fornia's interactions with counsel, including whether
counsel informed Fornia of his right to testify at his suppression
hearing, informed him of the constitutional nature of that right,
or somehow coerced him into forgoing the exercise of that right.
See Lema v. United States, 987 F.2d 48, 52-53 (1st Cir. 1993)
(discussing considerations for determining whether defense counsel
coerced or merely advised client regarding decision whether to
testify). Because the record is insufficiently developed to permit
"reasoned consideration of the ineffective assistance claim,"
United States v. Glenn, 389 F.3d 283, 287 (1st Cir. 2004), Fornia
may raise such a claim only on collateral attack in a proceeding
pursuant to 28 U.S.C. § 2255. See United States v. Genao, 281 F.3d
305, 313 (1st Cir. 2002). We therefore dismiss his ineffective
assistance of counsel claim without prejudice to the filing of a §
2255 petition.
C. Constructive Amendment/Prejudicial Variance
Fornia alleges that the government constructively amended
the indictment in I96 by introducing evidence of the conspiracy
alleged in I528 to prove the conspiracy charged in I96 -- in
effect, trying him for an offense other than that alleged in I96 --
in violation of his Fifth Amendment right to presentment of charges
to a grand jury. The government argues that Fornia has forfeited
his claim of constructive amendment through failure to object to

-- 25 of 46 --

-26-
the introduction of evidence on that ground or to seek a
continuance or mistrial below. As we have explained, however,
after the government rested its case, Fornia's counsel moved for an
acquittal on the ground that the conspiracy the government had
attempted to prove in I96 was indistinguishable from that charged
in I528 and that the evidence was therefore insufficient to prove
the conspiracy charged in I96. In his motion for a new trial,
Fornia also argued that he had been prejudiced at trial by the
government's failure to clarify which of the two charged
conspiracies it was attempting to prove in I96. Fornia's claim is
thus preserved.
The Presentment Clause of the Fifth Amendment provides
that "[n]o person shall be held to answer for a capital, or
otherwise infamous crime, unless on a presentment or indictment of
a Grand Jury" (with exceptions not relevant to this case).
Accordingly, "after an indictment has been returned[,] its charges
may not be broadened through amendment except by the grand jury
itself." Stirone v. United States, 361 U.S. 212, 215-16 (1960)
(citing Ex Parte Bain, 121 U.S. 1 (1887)). An indictment has been
constructively amended in violation of the Presentment Clause "when
the charging terms of the indictment are altered, either literally
or in effect, by prosecution or court after the grand jury has last
passed upon them." United States v. Fisher, 3 F.3d 456, 462 (1st
Cir. 1993) (internal quotation marks and citation omitted). Such

-- 26 of 46 --

-27-
an amendment may occur through the "admission of evidence of an
offense not charged by the grand jury." United States v. Dunn, 758
F.2d 30, 35 (1st Cir. 1985).
Fornia argues specifically that the government tried him
for the offense of participating in a conspiracy in which he was an
"owner of drugs," as charged in I528, as opposed to the conspiracy
charged in I96, in which he was identified as a "transporter[] of
drug[s] or money" and another individual was identified as the only
"head and owner drug point." However, the statutory offense
charged against Fornia in I96, and the offense the government
proved at trial, was conspiracy to distribute in excess of five
kilograms of cocaine in violation of 21 U.S.C. § 846. Role in the
conspiracy is not an element of that offense. Thus, Fornia's claim
does not involve an alleged constructive amendment of I96 to
include "an offense not charged by the grand jury," Dunn, 758 F.2d
at 35, but rather an alleged variance from the indictment, which
"occurs when the charging terms remain unchanged but when the facts
proved at trial are different from those alleged in the
indictment," Fisher, 3 F.3d at 463.
Though related, claims of constructive amendment and
prejudicial variance differ in at least one important respect. "A
constructive amendment is considered prejudicial per se and grounds
for reversal of a conviction." Id. By contrast, "[v]ariance is
grounds for reversal only if it affected the defendant's

-- 27 of 46 --

-28-
substantial rights." Id. (internal quotation marks omitted). In
short, "[s]o long as the statutory violation remains the same, the
jury can convict even if the facts found are somewhat different
than those charged -- so long as the difference does not cause
unfair prejudice." United States v. Twitty, 72 F.3d 228, 231 (1st
Cir. 1995).
Fornia argues that the government's proof at trial
impermissibly varied from the allegations in I96 by establishing
that his role in the alleged conspiracy was not that of a
"transporter[] of drug[s] or money" in someone else's drug
distribution operation, but that of an "owner of drugs," which
Fornia sold to Torres, who, in turn, sold them to co-conspirators
indicted in I96. Indeed, while the government introduced evidence
that Fornia literally "transport[ed]" drug proceeds in the trunk of
his car, the government introduced no evidence whatsoever that
Fornia "transport[ed]" the cash in the trunk of his car to or for
anyone else. Rather, Torres testified that it was he who
distributed the cocaine he purchased from Fornia to the individual
identified in the indictment as #1, "head and owner drug point,"
and other indicted co-conspirators. Torres also testified that he
then collected cash from other co-conspirators and delivered it to
Fornia as partial payment for the cocaine Fornia had supplied.
Because the government's evidence of Fornia's role in the
conspiracy differed from the role of a "transporter[] of drug[s] or

-- 28 of 46 --

22Of course, a different grand jury did indict Fornia for
conspiracy based on those facts in I528.
23Another purpose for the protection against variance from an
indictment, not at issue here, is to prevent prejudicial spillover
in cases involving multiple co-defendants. Tormos-Vega, 959 F.2d
at 1115.
-29-
money" in a conspiracy in which another individual was identified
as the "head and owner drug point," as alleged in the indictment in
I96, there was a variance between the government's proof at trial
and the charge alleged in the indictment.
Nevertheless, Fornia fails to establish any prejudice
resulting from the variance. The question "whether a variance
affected a defendant's substantial rights" is subject to de novo
review. United States v. Wihbey, 75 F.3d 761, 774 (1st Cir. 1996).
Fornia points out that the grand jury that returned the indictment
in I96 never had an opportunity to assess the government's evidence
that he was an owner of drugs, since the government acknowledges
that it discovered the facts alleged in I528 only after I96 had
already been returned.22 Fornia's argument misapprehends the nature
of the substantial rights protected by the prohibition on
prejudicial variance from an indictment, namely, the rights to
"have sufficient knowledge of the charge against [one] in order to
prepare an effective defense and avoid surprise at trial, and to
prevent a second prosecution for the same offense." United States
v. Tormos-Vega, 959 F.2d 1103, 1115 (1st Cir. 1992).23

-- 29 of 46 --

24Pursuant to Fed. R. Evid. 404(b), "[e]vidence of other
crimes, wrongs, or acts is not admissible to prove the character of
a person in order to show action in conformity therewith. It may,
however, be admissible for other purposes . . . provided that upon
request by the accused, the prosecution in a criminal case shall
provide reasonable notice in advance of trial, or during trial if
the court excuses pretrial notice on good cause shown, of the
general nature of any such evidence it intends to introduce at
trial." Prior to trial, the government argued both that it had
complied with the disclosure requirements of Fed. R. Evid. 404(b)
and that in any event the evidence of acts alleged in I528 did not
fall within the scope of that rule because the "crimes, wrongs, or
acts" of which it sought to introduce evidence were not "other
crimes, wrongs or acts" but were intrinsic to the crime of
conspiracy to distribute cocaine charged in I96.
-30-
The record shows that Fornia had ample notice of and
ample opportunity to prepare to meet the government's evidence
before trial. "The government need not recite all of its evidence
in the indictment, nor is it limited at trial to the overt acts
listed in the indictment." United States v. Innamorati, 996 F.2d
456, 477 (1st Cir. 1993). Here, however, prior to trial, the
government disclosed its intention to introduce evidence in I96
relating to Fornia's ownership of drugs as alleged in I528.24 That
evidence was relevant to central factual disputes in I96, for
example, whether the money in Fornia's trunk represented drug
proceeds (as distinct from legal business proceeds), and whether
Fornia shared an interest in the sales and distribution activities
of others. Further, Fornia's particular role in the conspiracy
alleged in I96 was unrelated to his defense theory; rather, Fornia
was well aware that his "central defense [in I96] needed to be that
he was not part of [the] organization -- as a [transporter of drug

-- 30 of 46 --

-31-
proceeds, owner of drugs], or in any other capacity." United
States v. Alicea-Cardoza, 132 F.3d 1, 6 (1st Cir. 1997) (no
impermissible variance where defendant was indicted "for being a
conspirator/triggerman but the evidence proved him a
conspirator/runner"). Accordingly, Fornia was not misled by the
government's evidence at trial to "defend himself on the wrong
grounds." Id. Fornia was thus able to "prepare an effective
defense and avoid surprise at trial." Tormos-Vega, 959 F.2d at
1115.
Finally, the trial court detected the potential for
prejudice to Fornia's ability to avoid a successive prosecution for
the same offense based on the government's introduction of evidence
relating to the charges in I528 -- including evidence of Fornia's
role in that conspiracy -- to prove the conspiracy charged in I96.
However, as we discuss below in Part III, any such prejudice was
cured by the government's dismissal of the conspiracy count in
I528. Because the variance failed to affect Fornia's substantial
rights, we reject his challenge to his conviction in I96 on the
ground of constructive amendment or prejudicial variance.
III. I528 DOUBLE JEOPARDY CLAIM
Fornia appeals the denial of his motion to dismiss the
indictment in I528 on double jeopardy grounds. The government
argues that Fornia has waived his double jeopardy claim by
objecting to its motion to consolidate the cases for trial, thereby

-- 31 of 46 --

25As we have noted, Fornia also expressly reserved the right
to appeal his conviction in I528 on double jeopardy grounds,
despite his guilty plea, pursuant to Menna v. New York, 423 U.S.
61, 62 (1975) (per curiam) (double jeopardy claim not automatically
waived by guilty plea).
-32-
"elect[ing] to have the two offenses tried separately and
persuad[ing] the trial court to honor his election." Jeffers v.
United States, 432 U.S. 127, 152 (1977) (plurality op.). While the
record is silent on Fornia's reasons for objecting to the
government's motion, which was made during a pre-trial conference
three days before Fornia's trial began in I96, Fornia maintains on
appeal that his objection was based solely on his inability to
prepare to try both cases on such short notice rather than as an
attempt to "persuade" the trial court of his "election" to face
separate trials. Id. The government points out that Fornia could
have sought a continuance. In denying the government's motion,
however, Judge Carter, who was sitting in Puerto Rico by special
designation for a limited period of time, clearly announced his
intention "to try this case," meaning the I96 indictment. Under
these circumstances, we treat Fornia's claim as preserved.25
The availability of double jeopardy protection is a
constitutional question reviewable de novo. United States v.
Lanoue, 137 F.3d 656, 661 (1st Cir. 1998). Under the Fifth
Amendment, no person shall "be subject for the same offence to be
twice put in jeopardy of life or limb." Among the purposes for
double jeopardy protection is the prevention of "repeated

-- 32 of 46 --

26As we have discussed, Judge Carter expressed concerns about
double jeopardy during Fornia's trial in I96 after the government
introduced evidence of the conspiracy alleged in Count One of I528.
After arguing that the conspiracy charged in I528 was different
from that in I96, the government later represented that it would
seek to dismiss the conspiracy count in I528. It so moved in July
2002, after Fornia moved to dismiss I528 on double jeopardy
grounds.
-33-
prosecutions for the same offense," Oregon v. Kennedy, 456 U.S.
667, 671 (1982), pursuant to "a constitutional policy of finality
for the defendant's benefit," United States v. Jorn, 400 U.S. 470,
479 (1971) (plurality op.).
Fornia's double jeopardy claim is narrow in scope. While
the Double Jeopardy Clause protects against "the danger that, in
conspiracy cases, the government might . . . partition[] a single
conspiracy into separate prosecutions" by prohibiting successive
prosecutions for conspiracies with identical features, United
States v. Morris, 99 F.3d 476, 480 (1st Cir. 1996), Fornia
ultimately faced only one conspiracy prosecution because the second
conspiracy count against him was eventually dismissed.26 Fornia
therefore does not allege that he was prosecuted twice for the same
violation of the same statute, 21 U.S.C. § 846.
Nor does Fornia make the futile argument that he could
not be successively prosecuted in I528 for substantive drug
offenses that were the objects of a drug conspiracy for which
Fornia had already been prosecuted in I96. Under the traditional
test announced in Blockburger v. United States, 284 U.S. 299, 304

-- 33 of 46 --

-34-
(1932), "where the same act or transaction constitutes a violation
of two distinct statutory provisions, the test to be applied to
determine whether there are two offenses or only one, is whether
each provision requires proof of a fact which the other does not."
Fornia's sequential prosecutions under different statutes fully
satisfy the Blockburger test. "In order to establish a violation
of 21 U.S.C. § 846, the Government need not prove the commission of
any overt acts in furtherance of the conspiracy." United States v.
Shabani, 513 U.S. 10, 15 (1994). Conversely, no agreement need be
proven to secure a conviction for a substantive drug offense under
21 U.S.C. § 841(a)(1). Indeed, it has long been established that
"conspiracy to commit a crime is not the same offense as the
substantive crime for double jeopardy purposes," Lanoue, 137 F.3d
at 662, because "the agreement to do the act is distinct from the
[completed] act itself," United States v. Felix, 503 U.S. 378, 390-
91 (1992) (internal quotation marks omitted) (adhering to line of
cases holding that separate prosecutions for conspiracy and for
underlying substantive offenses do not violate the Double Jeopardy
Clause).
Fornia attempts to reach shelter under the Double
Jeopardy Clause by a different route. He points out that the
Supreme Court has suggested that even where a successive
prosecution would otherwise be barred under the Blockburger test,
such a prosecution may nevertheless be permissible under the Double

-- 34 of 46 --

-35-
Jeopardy Clause where "the additional facts necessary to sustain [a
subsequent] charge ha[d] not [yet] occurred or ha[d] not [yet] been
discovered despite the exercise of due diligence" at the time of
the first prosecution. Brown v. Ohio, 432 U.S. 161, 169 n.7
(1977). Fornia asks us to fashion a new rule by holding that the
Double Jeopardy Clause also prohibits successive prosecutions that
would not otherwise be barred under the Blockburger test where, in
the exercise of due diligence, the government could have brought
the prosecutions in the same proceeding. See Fed R. Crim. P. 8(a)
(permitting joinder of charges against a defendant in the same
indictment "if the offenses charged . . . are of the same or
similar character, or are based on the same act or transaction, or
are connected with or constitute parts of a common scheme or
plan").
Fornia's proposed rule is a barely disguised attempt to
resurrect the "same transaction" test for determining when
successive prosecutions are barred by the Double Jeopardy Clause.
Such a test, "which would require the Government to try together
all offenses (regardless of the differences in the statutes) based
on one event," has been "consistently rejected by the [Supreme]
Court." United States v. Dixon, 509 U.S. 688, 709 n.14 (1993).
Instead, "the performance of a Blockburger analysis completes the
judicial task in a successive prosecution case." Morris, 99 F.3d
at 480. Even where, as in Fornia's cases, prosecutions for

-- 35 of 46 --

27Fornia's reliance on two decisions by our sister circuits
that allegedly adopt such a rule is misplaced. See Rashad v. Burt,
108 F.3d 677 (6th Cir. 1997); United States v. Reed, 980 F.2d 1568
(11th Cir. 1993). Not only are the circumstances of Fornia's
sequential prosecutions factually distinguishable, but these cases
are of limited applicability even in their originating circuits.
See United States v. Forman, 180 F.3d 766, 770 (6th Cir. 1999)
(limiting language in Rashad that may conflict with Dixon to apply
only to the specific circumstances present in Rashad); United
States v. Maza, 983 F.2d 1004, 1008 n.8 (11th Cir. 1993)
(characterizing as dicta language in a case cited in Reed as
authority for a due diligence rule imposed by the Double Jeopardy
Clause).
-36-
different offenses may be suitable for joinder, successive
prosecutions are permitted under the Double Jeopardy Clause so long
as the offenses pass the Blockburger test, with its "focus[] on the
statutory elements of each offense." United States v. Colon-
Osorio, 10 F.3d 41, 43 (1st Cir. 1993). We therefore reject
Fornia's claim that his prosecution in I528 was barred by the
Double Jeopardy Clause solely because the government, in the
exercise of due diligence, could have brought the charges in a
superseding indictment or could have more promptly moved to
consolidate I96 and I528 for trial.27
IV. SENTENCING IN I96 AND I528
A. Background
Under 21 U.S.C. §§ 846 and 841(b)(1)(A), Fornia was
subject to a statutory mandatory minimum sentence of 10 years'
imprisonment and a maximum term of life imprisonment for each of
his convictions, given the jury's finding in I96 and his admissions
in his guilty pleas in I528 that the quantity of cocaine involved

-- 36 of 46 --

28A reviewing court ordinarily "appl[ies] the edition [of the
Sentencing Guidelines] in effect at the time of sentencing."
United States v. Martin, 363 F.3d 25, 32 n.3 (1st Cir. 2004). In
Fornia's case, that would be the edition that went into effect on
November 1, 2002. For reasons that remain unclear, Fornia's
presentence investigation reports were prepared according to the
2000 Guidelines. The parties have pointed out no differences in
the 2000 and 2002 versions of the Guidelines applicable to Fornia,
nor have we detected any. All references to the Guidelines
throughout this opinion are thus to the 2002 edition.
-37-
in each offense exceeded 5 kilograms. Under the federal Sentencing
Guidelines, Fornia's sentence in each case was limited to a
narrower Guidelines Sentencing Range ("GSR") based on an assessment
of his Criminal History Category and a total offense level
calculated by identifying a "'base offense level' corresponding to
the crime for which [he was] convicted, as modified by mandatory
'adjustments' which take into account certain aggravating or
mitigating factors." United States v. Austin, 239 F.3d 1, 5 (1st
Cir. 2001).28
We recount the facts pertinent to Fornia's sentencing as
gleaned from "uncontested portions of the presentence investigation
report[s] and the transcript[s] of the sentencing hearing[s]."
United States v. Cloutier, 966 F.2d 24, 25 (1st Cir. 1992). On the
morning of December 5, 2002, the court held a sentencing hearing in
I96. The court calculated Fornia's base offense level as 34 for a
drug offense involving 21 kilograms of cocaine. See U.S.S.G. §
2D1.1(a)(3). The court arrived at this 21-kilogram figure by
dividing the total amount of drug proceeds seized from Fornia

-- 37 of 46 --

-38-
($281,926) by the amount Torres testified that he paid Fornia per
kilogram of cocaine ($13,000), as recommended in the presentence
investigation report ("PSR") for I96. The court then found that
Fornia had been "a manager or supervisor (but not an organizer or
leader) and the criminal activity involved five or more
participants or was otherwise extensive" within the meaning of
U.S.S.G. § 3B1.1(b), warranting a three-level upward adjustment to
reach a total offense level of 37. The court declined to impose an
upward adjustment sought by the government for the specific offense
characteristic of possession of a firearm. U.S.S.G. § 2D1.1(b)(1).
The court also declined to impose an acceptance of responsibility
downward adjustment because Fornia had gone to trial in I96. See
U.S.S.G. § 3E1.1, cmt. n.2 (adjustment for acceptance of
responsibility generally unavailable to defendant who "puts the
government to its burden of proof at trial by denying the essential
factual elements of guilt"). The court then sentenced Fornia to
the minimum sentence, 210 months' imprisonment, within the
appropriate GSR for an offender in Criminal History Category I
(210-262 months), and imposed a fine of $5000 and a five-year term
of supervised release.
Later that afternoon, the court held a separate
sentencing hearing in I528. The court determined that the quantity
of drugs involved in all conduct relevant to the charged offenses
was the sum total of the amounts involved in the four substantive

-- 38 of 46 --

29Although Fornia pled guilty to the factual basis for each of
the substantive counts in I528, he admitted only that each count
involved a quantity in excess of five kilograms of cocaine.
-39-
counts in I528, or 170 kilograms.29 Following the recommendation
of the PSR in I528, the court reasoned that "21 of those kilograms
were the subject of the . . . sentence in [I96]" and had already
been accounted for by that sentence. Accordingly, the court used
the remaining quantity, 149 kilograms, to calculate a base offense
level of 36 in I528. The court then found that Fornia "was an
organizer or leader of a criminal activity that involved five or
more participants or was otherwise extensive" within the meaning of
U.S.S.G. § 3B1.1(a), warranting a four-level upward adjustment to
reach a total offense level of 40. The court also found, based on
the government's representation and the description in the PSR
prepared in I528, that two indicted co-conspirators who had pled
guilty in I528 had placed Fornia in possession of a firearm during
a drug-related incident. The court accordingly imposed a two-level
upward adjustment for the specific offense characteristic of
possession of a firearm during a drug offense, U.S.S.G. §
2D1.1(b)(1), reaching a total offense level of 42. Because Fornia
pled guilty to the four counts in I528, however, the court imposed
a three-level decrease for acceptance of responsibility, U.S.S.G.
§ 3E1.1(b), lowering the total offense level to 39. Finally, based
on Fornia's "prior undischarged sentence" imposed that morning in

-- 39 of 46 --

30Explaining its decision to impose the maximum sentence in the
GSR, the court cited Fornia's criminal history, including his
conviction in I96 as well as a prior conviction from 1975 that was
mentioned in each of his PSRs but which had been excluded from the
Criminal History Category calculation in each case pursuant to
U.S.S.G. § 4A1.2(e). The court made no reference to the 1975
conviction during sentencing in I96.
-40-
I96, the court awarded three criminal history points to place
Fornia in Criminal History Category II. U.S.S.G. § 4A1.1(a). The
court then sentenced Fornia to the maximum sentence, 365 months'
imprisonment, within the applicable GSR (292-365 months), to run
concurrently as to the four substantive counts, but consecutive to
the sentence of 210 months' imprisonment in I96, for a total term
of imprisonment in both cases of just under 48 years.30 The court
also imposed a fine of $250,000 and a five-year term of supervised
release to run concurrently with the term of supervised release
imposed in I96. The court declined Fornia's request for a downward
departure on the basis of alleged prosecutorial misconduct.
Finally, the court determined that no other mitigating
circumstances -- neither Fornia's deportability nor his allegations
of disparity in his sentence as compared with those of his co-
defendants -- warranted a downward departure.
Fornia appeals his sentences on multiple grounds, several
of which are interrelated. Specifically, Fornia argues that: (1)
the district court imposed mandatory sentence enhancements based
solely on judicially found facts, increasing the sentence in each
case beyond the maximum authorized by jury-found or admitted facts

-- 40 of 46 --

-41-
in violation of Booker; (2) the court erred by failing to use the
same drug quantity involved in the conspiracy in I96, 21 kilograms,
to sentence Fornia on the four substantive counts in I528 because
the cases involved related conduct, see U.S.S.G § 1B1.3; (3) the
court imposed a consecutive rather than a concurrent term of
imprisonment in I528, including role-in-the-offense sentence
enhancements based on the same conduct in each case, in violation
of Fornia's Fifth Amendment rights to due process and protection
against double jeopardy; (4) the court improperly assigned criminal
history points on the basis of Fornia's sentence for the conspiracy
conviction in I96 to increase his sentence in I528, see U.S.S.G. §
4A1.2; (5) the court improperly denied Fornia's motion to
consolidate his cases for sentencing and failed to group the counts
in both indictments, see U.S.S.G. §§ 3D1.1-3D1.5 and 5G1.2(b)-(c);
(6) the role-in-the-offense sentence enhancement in I96 violates
the Presentment Clause of the Fifth Amendment; and (7) the evidence
was insufficient to support, by a preponderance of the evidence,
the court's imposition of role-in-the-offense enhancements in both
I96 and I528, see U.S.S.G. § 3B1.1, and the "specific offense
characteristic" adjustment for possession of a firearm in I528, see
U.S.S.G. § 2D1.1(b)(1). As we discuss below, our disposition of
Fornia's claims of Booker error obviates the need to address his
other sentencing claims.

-- 41 of 46 --

31The Court also struck 18 U.S.C. § 3742(e), which authorized
appellate courts to engage in de novo review over certain aspects
of federal sentencing. Booker, 125 S. Ct. at 764. The Court left
the remainder of the Act, including the requirement that a
sentencing court calculate and consider the sentence recommended by
the Guidelines, 18 U.S.C. § 3553(a)(4), untouched. Antonakopoulos,
399 F.3d at 76.
32As we have discussed, the district court imposed role
enhancements in both cases, but imposed an upward adjustment for
possession of a firearm in I528 only.
-42-
B. Booker Error
After briefing was completed and oral argument held in
this case, the Supreme Court decided Booker, in which the Court
precluded, on Sixth Amendment grounds, a sentencing court from
imposing a sentence on the basis of judicially found facts that
"exceed[s] the maximum authorized by the facts established by a
plea of guilty or a jury verdict", Booker, 125 S. Ct. at 756, but
"only insofar as the sentence resulted from a mandatory system
imposing binding requirements on sentencing judges," United States
v. Antonakopoulos, 399 F.3d 68, 75 (1st Cir. 2005). Because "the
mandatory nature of the Guidelines . . . raised constitutional
concerns," id., the Court eliminated such concerns by striking the
statutory provision that renders the Sentencing Guidelines binding
on federal courts, 18 U.S.C. § 3553(b)(1).31
Fornia cited Apprendi v. New Jersey, 530 U.S. 466 (2000),
in his written objections to the draft PSR in each of his cases as
a ground for objection to the imposition of role enhancements or
adjustments for possession of a firearm.32 We therefore treat his

-- 42 of 46 --

33Fornia also raised a claim under Blakely v. Washington, 542
U.S. ___, 124 S. Ct. 2531 (2004), in his reply brief. Because
Fornia's claims of Booker error are preserved and therefore subject
to harmless error review, no supplemental briefing was invited from
or submitted by the parties in the wake of Booker or
Antonakopoulos. See Antonakopoulos, 399 F.3d at 83 (permitting
parties to submit supplemental briefing on consequences of the
panel's decision for unpreserved claims of Booker error). Fornia
did, however, file a letter pursuant to Fed. R. App. P. 28(j)
apprising the panel of these decisions.
-43-
claims of Booker error as preserved on appeal and subject to review
for harmless error. Antonakopoulos, 399 F.3d at 76.33 As a result
of the Supreme Court's remedial decision, Booker error is
established whenever "a defendant's Guidelines sentence was imposed
under a mandatory Guidelines system," whether or not the sentencing
court relied on judicial fact-finding to increase the sentence
beyond the maximum authorized by jury-found or admitted facts.
Antonakopoulos, 399 F.3d at 75. Under harmless error review of
Booker claims, in order to avoid a remand for resentencing under
advisory Guidelines,
the government has the burden of proving
beyond a reasonable doubt that the error did
not affect the defendant's substantial rights.
That is, we must be convinced that a lower
sentence would not have been imposed had the
Guidelines been advisory. This is an
extremely difficult, but not impossible,
standard to meet.
Vázquez-Rivera, 2005 WL 1163672, at *10, ___ F.3d at ___. Where a
defendant assails, as a constitutional violation, the imposition of
enhancements that bring his sentence above the maximum sentence
authorized by jury fact-finding or admitted facts -- a virtual

-- 43 of 46 --

34In Antonakopoulos, we stated, "[t]he argument that a Booker
error occurred is preserved if the defendant below argued Apprendi
or Blakely error or that the Guidelines were unconstitutional."
399 F.3d at 76.
-44-
prerequisite for the preservation of a claim of Booker error34 --
"factual certainty alone" in support of such enhancements "would
not be sufficient to show beyond a reasonable doubt that the judge,
acting under an advisory Guidelines system, would have applied the
same sentence on the basis of those factors." Id.
Applying this standard to Fornia's sentences, we cannot
conclude with the requisite certainty that the district court would
not have imposed lower sentences in each of his cases under a non-
mandatory Guidelines regime. As our description of Fornia's
multiple claims of Guidelines error suggests, the Guidelines
sentencing here was complex. In response, the court imposed the
minimum sentence under the GSR for the conspiracy conviction in
I96, the maximum sentence under the GSR for the convictions on the
four substantive offenses in I528 (with those sentences being
concurrent to each other), and then made the maximum sentence
consecutive to the minimum sentence. On its face, this mixture of
leniency and stringency is unusual, and the reasons for these
choices are not entirely clear. This observation is not a
criticism. The court faced a particularly difficult sentencing
problem because the closely related cases were prosecuted and
sentenced in separate proceedings, requiring the court to treat

-- 44 of 46 --

-45-
Fornia's cases as simultaneously related, yet separate, for
purposes of sentencing within the confines of a mandatory
Guidelines regime.
Indeed, the court appears to have been mindful of the
desirability of mitigating the consequences of the government's
decision to bring successive prosecutions against Fornia in its
subtraction of 21 kilograms of cocaine from the total quantity
involved in the offenses in I528 because that portion had already
been "the subject of the . . . sentence in [I96]." The Guidelines
encourage such attention to the potential unfairness of duplicative
punishment resulting solely from prosecutorial charging decisions.
For example, U.S.S.G. § 5G1.3, under which Fornia was sentenced to
a consecutive term of imprisonment in I528, "was designed 'to
mitigate the possibility that the fortuity of two separate
prosecutions will grossly increase a defendant's sentence.'"
United States v. Caraballo, 200 F.3d 20, 27 (1st Cir. 1999)
(quoting Witte v. United States, 515 U.S. 389, 404-05 (1995)). To
that end, subsection (c) contains a policy statement favoring the
"achiev[ement of] a reasonable punishment" even where a sentencing
court retains the discretion to impose a wholly concurrent,
partially concurrent, or wholly consecutive sentence.
We deem it unnecessary and inadvisable to discuss
Fornia's many claims of Guidelines sentencing error further;
suffice it to say that we cannot conclude beyond a reasonable doubt

-- 45 of 46 --

-46-
that the court would have resolved the many interrelated sentencing
issues it faced in precisely the same manner by "impos[ing] the
same sentence in the absence of mandatory Guidelines." Vázquez-
Rivera, 2005 WL 1163672, at *10, ___ F.3d at ___. We are
particularly reluctant to make presumptions in the face of such a
severe total punishment, a sentence of nearly 48 years -- virtually
a life sentence. We therefore conclude that both cases should be
remanded for resentencing under Booker. However, our decision to
remand for resentencing should not be read as a "suggestion or a
prediction that [Fornia's] sentence[s] will necessarily be
altered." United States v. Heldeman, 402 F.3d 220, 224 (1st Cir.
2005).
V.
Fornia's convictions are affirmed; his sentences on those
convictions are vacated. We remand for resentencing consistent
with this opinion.
So ordered.

-- 46 of 46 --