USCA1 Opinion

UNITED STATES COURT OF APPEALS

UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
FOR THE FIRST CIRCUIT
_________________________
No. 94-1806
UNITED STATES OF AMERICA,
Appellant,
v.
FABIAN CARLOS MUNIZ,
Defendant, Appellee.
_________________________
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Edward F. Harrington, U.S. District Judge]
___________________
_________________________
Selya and Boudin, Circuit Judges,
______________
and Carter,* District Judge.
______________
_________________________

Geoffrey E. Hobart, Assistant United States Attorney, with

__________________
whom Donald K. Stern, United States Attorney, was on brief, for
_______________
the United States.

John C. Doherty for the appellee.

_______________
_________________________
March 8, 1995
_________________________
_______________
*Chief Judge, U.S. District
sitting by designation.

Court

SELYA, Circuit Judge.

SELYA, Circuit Judge.
_____________
are

long

virtually
defendants.

since

past

unfettered

when

District of

For better

federal

discretion

The sentencing

for the

or worse, the

district
in

Maine,

judges

days

wielded

sentencing

criminal

guidelines are controversial

but

they have the force of law and, therefore, command the allegiance
of

the courts.

transgress them,
not to

Judges,
must be

be seen as placing

who

enforce

the

sensitive to their

laws

others

own responsibility

themselves above the law.

exemplifies the importance of that principle.

when

This case

I.
I.

THE ROAD TO ARREST

THE ROAD TO ARREST
Because

the

guilty plea, we draw

the

Presentence

transcript of
Garcia,
______

underlying

resulted

the facts from the uncontested

Investigation

the

conviction

Report

(PSI

sentencing hearing.1

See
___

from

portions of

Report)

and

the

United States
_____________

v.

954 F.2d 12, 14 (1st Cir. 1992); United States v. Dietz,

_____________
_____

950 F.2d 50, 51 (1st Cir. 1991).

All the events mentioned, including
occurred in 1994 unless
that year, agents of

otherwise specifically indicated.

couple, Omer and Camille Belle,

of a narcotics investigation.

peal; they

told

the

kilogram quantities

Early

the federal Drug Enforcement Administration

(DEA) arrested a married

course

court proceedings,

federal agents
of

cocaine from

The Belles
that

they

in the

soon began to
had

purchased

defendant-appellee

Fabian

____________________

1In this case, much of the evidence is beyond hope of

contradiction.
The
authorities tape-recorded the
various
telephone conversations in which the defendant participated and
fitted the hotel room in which the denouement occurred with a
video camera and a microphone.
2

Carlos Muniz on a

steady basis for

December of 1993), and

two years (most recently

in

that Muniz also had made similar sales to

at least two other individuals.

The

Belles agreed

directed against

Muniz.

to cooperate

On

February 4,

in a

sting operation

Camille Belle

called

Muniz

and informed him that a friend was interested in acquiring

three

to

four kilograms

quantity

was

kilogram.

When

of cocaine.

"no problem"

Muniz replied

and quoted

price of

Camille sought reassurance that

be forthcoming, Muniz reiterated

that the

$23,500 per

the drugs would

that "as long as they

got [the

funds], it's not a problem."

Later that
that

the would-be

cocaine.
but

evening, Omer
buyer wanted

Belle called and

to purchase

Muniz scheduled the transaction for

five

told Muniz

kilograms of

the following day,

voiced some uncertainty about whether he could fill the full

order in
get . .

one fell swoop, telling Omer:

. as many sets

for tomorrow."

code word for kilograms of

and when,
the next

Muniz replied:
day."

again inquired

"I don't know

Asked how many sets

"Two

about how many

or three maybe and

5, at

the rest for

point in the conversation, Omer

kilograms would be

following day, and Muniz responded, "Two . . . or

afternoon, February

(a

cocaine) he definitely could provide,

At a subsequent

don't know, I'm not sure."

if I can

delivered the

three maybe, I

The two men agreed to meet the

an inn in

next

Sturbridge, Massachusetts.

Muniz reaffirmed that although five sets might not be immediately

available,

he

would

fill

the

entire

order

with

reasonable

celerity:

"It could be two or three [kilograms] tomorrow and

do

the rest the next day."

On

February 5, the men

this conversation,
bring

enough

Muniz emphasized that the

money to

approximately

spoke again by

8:00

pay

p.m.

for
on

as many

the

place.

The

trio proceeded

reality an undercover
the

agent two

thought

it was

to a

kilograms of

Muniz

At

and

the customer

inside, Muniz handed

When the agent

tomorrow," and volunteered:

"If you want three tomorrow,

I can

bring

problem."

Following

and possible

future

discussion regarding
Muniz again
three

no

prices

assured the

agent that

for tomorrow, no problem."

his

THE ROAD TO SENTENCING

further

transactions,

sources had

"promised

At that point, law enforcement

officers arrested both Muniz and Villar.2

II.

"No,

said, "I

three

tomorrow,

Muniz replied,

(in

two today,

three

three,"

Once

cocaine.

sets.

Belle at the appointed

room where

agent) waited.

three

date,

confederate, Juan Carlos Villar, met Omer

In

customer needed to

as

same

telephone.

II.

THE ROAD TO SENTENCING

On

possessing

March 2,
cocaine,

a federal grand
intending to

jury charged

distribute

841(a)(1), conspiracy to distribute, 21 U.S.C.

and

abetting, 18 U.S.C.

2.

it,

Muniz with
21 U.S.C.

846,

and aiding

Shortly thereafter, the government

filed a notice memorializing its

position that, for the

purpose

of determining Muniz's offense level under the federal sentencing

____________________
2The grand jury indicted Villar along with Muniz.
however, is not a party to this appeal.

Villar,

guidelines, the
for

prosecution would

seek to hold

him accountable

five to fifteen kilograms of cocaine, thus triggering a ten-

year minimum mandatory sentence on the conspiracy count

U.S.C.

841(b)(1)(A)(ii).

five-year minimum
under 21 U.S.C.
On
indictment.

The notice

under 21

also admonished that

mandatory sentence applied to

the other count

841(b)(1)(B)(ii).

March 29, Muniz pled

guilty to both

counts of the

In the plea contract, the parties agreed to disagree

anent length of sentence; the

government continued to advocate a

ten-year
minimum

sentence, while
applied

kilograms
parties

of

because

cocaine.

stuck to

because

made

about

case

At the

that only

involved

well

change-of-plea
The

a five-year

government

under

five

hearing,

both

reiterated that

responsible for at least five

he

undercover agent.
had

his

their guns.

Muniz should be held

cocaine

Muniz asserted

agreed

Muniz,

to

deliver

that

amount

however, dismissed any

undelivered

quantities

exaggerating," and urged that he

as

kilograms of
to

the

statements he

mere

"puffing

or

should only be held accountable

for the amount of contraband actually delivered.

The Probation Department sided with the government.
espousing

this

view, the

PSI Report

events occurring on February 4 and 5

statements of
they had

Muniz, Camille

number of

to the

but also to the post-arrest

intimating that

on a regular basis

objections

continued to debunk statements

not only

Belle, and Villar

dealt with each other

Muniz filed

alluded

In

to

the PSI

in the past.
Report.

he had made about his

He

ability to

procure

the

full

five

kilograms

of

cocaine

as

unfounded

rodomontade, and argued that he had no means of obtaining so huge

a quantity.
had

In respect to past dealings,

Muniz admitted that he

delivered 125 grams of cocaine to Camille Belle in late 1993

but denied

having sold drugs on

any other occasion.

Not to be

outdone, the government filed an affidavit signed by a DEA agent,

Steven

Story, corroborating many of the facts recited in the PSI

Report.
III.
III.

THE IMPOSITION OF SENTENCE

THE IMPOSITION OF SENTENCE
In

the

guidelines link

typical

narcotics

drug quantity

to sentence

United States v. Sepulveda, 15

______________
_________
("In

drug-trafficking cases

sentences are
Ct.

under

the

the

length.

F.3d 1161, 1196

sentencing

See, e.g.,
___ ____

(1st Cir. 1993)

sentencing

largely quantity-driven."),

2714 (1994).

guidelines,

cert. denied, 114

_____ ______

S.

But ascertaining drug quantity is not always a

simple matter of weighing

sentenced

case,

and sorting.

Muniz on June 15,

battle concerning the

agreed to supply but

When the

1994,3 the parties

three kilograms of cocaine

had not delivered.

district court

waged a pitched

that Muniz had

five-year difference

in the minimum mandatory sentence depended on whether these three

kilograms did or did not figure in the drug quantity attributable

____________________

3The November 1993 edition of

the federal sentencing
guidelines applies to this case. See United States v. Aymelek,
___ _____________
_______
926 F.2d 64, 66 n.1 (1st Cir. 1991) (explaining that, absent ex

__
the

post facto concerns, a

sentencing court must consult
____ _____
guidelines in effect at the time of sentencing).
Thus, all
references herein are to that version.
6

to Muniz.4
The parties agree for purposes

of this appeal that the

key to unlocking the drug quantity puzzle here can be found in an

application note that states in pertinent part:
In an offense
involving negotiation
to
traffic in a controlled substance, the weight
under
negotiation
in
an
uncompleted
distribution shall be used to calculate the
applicable amount. However, where the court
finds that the defendant did not intend to
produce and was not reasonably capable of
producing the negotiated amount, the court
shall exclude from the guideline calculation
the amount that it finds the defendant did
not intend to produce and was not reasonably
capable of producing.
U.S.S.G.

2D1.1, comment., n.12 (Nov. 1993).

application note 12 as
negotiation must be
of

minimum

supportably

We have interpreted

directing that the amount of

considered in determining the

mandatory

finds both
____

penalty unless
that

the

the defendant

drugs under

applicability

sentencing
did

court

not intend

to

produce the additional quantity of narcotics, and that

___
the capacity to do so.

he lacked

See United States v. Pion, 25 F.3d 18, 25

___ _____________
____

(1st Cir.), cert. denied, 115 S. Ct. 326 (1994).

_____ ______

Phrased another

way,

the evidence in

if the court

finds by a

preponderance of

regard to an aborted narcotics transaction that the defendant had

either the intent
______

or the capacity to deliver the

full amount of

the drugs under negotiation, then that amount must be included in

____________________

4Although the government urged the

district court to
consider other transactions, e.g., Muniz's prior sales of cocaine
____
to the Belles, as relevant conduct includable in the drug
quantity calculation, the court rejected this exhortation. The
government has not appealed the court's refusal to hold Muniz
responsible for other relevant conduct.
7

the drug quantity calculation.

Here, Muniz contended that
either

intent or capacity.

facts,

the

district

court

the evidence failed to show

In an effort
asked

Agent

to glean the material

Story

to

testify,

questioned him sua sponte, and allowed defense

___ ______
examine him.
and

Near the end of the disposition

the Assistant

United States

counsel to cross-

hearing, the court

Attorney (AUSA)

discussed the

holding in Pion and its relevance to Muniz's case:

____
[AUSA]: But even if the Court were to find
[AUSA]:
that [Muniz] wasn't reasonably capable of
producing [the three additional kilograms],
in this case because he intended to produce
it, under Pion, the minimum mandatory still
____
applies.
THE COURT:
THE COURT:
factors?
[AUSA]:
[AUSA]:

So

you only need

one of

those

That's correct, your Honor.

THE COURT:
Well, . . . I'm not enthusiastic
THE COURT:
about this type of a sentence, because I grew
up in an era where you sentence under the
specific terms of the indictment.
But I'm
constrained to find, unless [defense counsel]
can persuade me to the contrary, that there
is sufficient evidence that he intended to
produce the three additional kilograms and
that he was, in fact, capable of so doing.
When

defense

counsel

contradictory to intend

suggested
to do

that

it

"seem[ed]

something and not

doing it," the district judge responded:

logically

be capable

of

"No, I said both. . . .

I'm constrained to find that he intended to do it and was capable

of so

doing."

The

judge then explained

his use of

"constrained to find," stating:

. . . I don't like
rather
sentence by

to do it because I'd
the
terms
of
an
8

the phrase

indictment, namely, two kilograms. But the

law [provides] that if an intention is made
to produce further kilograms and that the
defendant is capable of so doing, that enters
into the calculus as to the weight of the
cocaine which is the basis for the offense.
And I have to so find.
After
judge indicated
"The

a further
that he

exchange

with defense

had ruled,

and

counsel,

switched the

the

subject:

finding having been made, what is the recommendation of the

government?"
sentence.

Not surprisingly, the AUSA

Muniz's

reconsideration

lawyer

of

the

then made
court's

recommended a ten-year

an

impassioned plea

findings,

attacking

for

the

credibility of Camille Belle (who had provided information to the

DEA about Muniz's resources as a drug supplier) and stressing the

perceived

unfairness of a ten-year

previously

unblemished

allocution

in which

the

of intent

issues

record.

sentence in light of Muniz's

Upon

hearing

the defendant's

the defendant shed no additional

and capability,

but merely

light on

admitted his

guilt and beseeched the court "not [to] be too tough on me"
court passed sentence:
After review of the entire evidence in this
case, I think a fair sentence, in view of the
statement that
has
been made
by
the

the

defendant, I'm going to base my sentence on

the hard evidence of the two kilograms of
cocaine.
Therefore, under the statute, I'm
going to impose a
term of five years'
imprisonment, five years' supervised release,
and $100 special assessment.
This man doesn't appear to have any
record whatsoever. He doesn't appear to have
made significant amounts of money in this
business of cocaine trafficking.
I cannot
believe that he's a major dealer, and it's
unconscionable for me to impose a sentence of
9

ten years on this individual.

I think five
years is a fair and just sentence, and that
will be the sentence imposed.
The court
well

subsequently issued

beyond its remarks at

a written judgment

sentencing.

The

that extended

judgment stated in

relevant part:
The Court did not impose a mandatory sentence
of 120 months, as it was not sufficiently
satisfied, on the basis of the evidence
introduced at the sentencing hearing and on
the defendant's denial, that the defendant
would
have
actually
transferred
three
additional kilograms of cocaine on the next
day, the factor necessary to the mandatory
imposition of an additional 60-month term of
imprisonment.
The government

now appeals

the imposition of

a five-

year sentence.
IV.
IV.

DISCUSSION
DISCUSSION
The prosecution

thrice flawed.

It

argues

that the

says (1) that

sentence imposed

the court, having

is

found both

that Muniz intended to deliver the full amount

under negotiation

and

so, erred

that he

including
quantity

possessed the

the

extra

capability

three

calculation as

to do

kilograms of

required

cocaine

by application

in

in not

the drug

note 12;

that, in view of the record evidence, any contrary finding

Muniz

lacked

the

requisite

intent,

requisite capability, or both

therefore,

without legal

evidenced by
the

that

he

lacked

that

the

would be clearly erroneous, and,

force;

and

(3)

that the

court,

as

its written judgment, misinterpreted and misapplied

applicable legal

mindful that a

or

(2)

standard.

We approach

district court's findings

these contentions

of fact at

sentencing

"clearly

erroneous"

10

are

reviewed

standard.
and

deferentially

However, the

its application of

under

the

court's interpretation of the guidelines

rules of law to

the discerned facts are

reviewed

de novo.
__ ____

See United States

___ _____________

v. Brewster, 1 F.3d 51, 54

________

(1st Cir. 1993); United States v. St. Cyr, 977 F.2d 698, 701 (1st
_____________
_______
Cir. 1992).
We

address

undifferentiated whole,

the

government's

have

time of sentencing.
made

intended

definite

court viewed the

obviously misread

of it that

The government understands the court to

findings

of

fact

signifying

that way, the

application note

that

Muniz

kilograms of cocaine on

he had the capability to do

facts in

an

uttered from the bench at

to deliver an additional three

February 6, and that

as

beginning with those aspects

require interpretation of the comments

the

claim

so.

Since the

government posits,

12, or

it

otherwise misapplied

the law, in not attributing the weight under negotiation to Muniz

for sentencing purposes.
runs, any other

And, moreover, the government's thesis

findings would

be so clearly

erroneous that

reviewing court would be duty bound to set them aside.

The

defendant

understanding of

articulates

what transpired.

somewhat

Though he concedes

different

that the

district court initially found against him on both the intent and
capacity prongs of the application
that

the

court

reconsidered

note 12 paradigm, he
and,

on

reflection,

asserts

found

insufficient evidence of those elements.

Because the nisi prius

____ _____

roll supports

Muniz asseverates, the

the reconsidered findings,

11

court

acted lawfully

kilograms

in sentencing

of cocaine

that

him based

he actually

only on

the two

delivered, and

nothing

more.

On this scumbled record, we cannot fully endorse either

party's view.
the first

While the district court

time around that

capability to

deliver the

Muniz had

was apparently persuaded

both the

intent and

promised three kilograms

of cocaine,

the court's words have a cryptic quality and its findings

can call them findings
they give us pause.

at all

are sufficiently

To add to the confusion,

the

if we

recondite that

the court's abrupt

about-face undermines our confidence in its earlier statements.

Having

refused to

refuse to hold with

hunt with

the hare.

Although

the hounds,

we likewise

Muniz's claim that

the

court reconsidered its initial findings and reversed its field is

not

entirely

statement
two

without

record

support

Judge

Harrington's

that his decision would be based on "hard evidence" of

kilograms of cocaine, made on the heels of defense counsel's

request for reconsideration and coupled

with the imposition of a

five-year (rather than a ten-year) sentence, allows an inference,

strained as it

may be, that

the judge rethought

intent and capacity and came out the other way

the issues

of

it withers under

close

scrutiny.

The

earlier findings;
sudden

judge's

he offered

turnaround;

subsidiary fact.

judge never

and

explicitly

disclaimed

no reasoned justification

he

made

no

supportive

his

for the

findings

of

Reading the record with an unjaundiced eye, the

180-degree

turn

defies

rational

explanation.

We

12

conclude, therefore,
so inexplicit

that the court's findings

that the sentence

are, on balance,

cannot plausibly rest

on them.

Cf. United States v. Tavano, 12 F.3d 301, 305 n.5 (1st Cir. 1993)
___ _____________
______

(suggesting that, when there is significant uncertainty about the

meaning of the sentencing judge's statements, the ends of justice

are

usually best

served by

Aguilera-Zapata, 901
_______________
sentence

starting afresh); United States v.

______________

F.2d 1209,

where record

unclear

1216 (5th Cir.

as to

1990) (vacating

whether sentencing

court

applied the correct legal standard).

prepared

Nor

can the

and

filed by

sentence rest
the

district

on the

written memorandum

judge as

part

of the

judgment

after
_____

conveniently

he

had

overlook the

the written document

respect from what
the

entire

sentenced

the

prior proceedings, but

have

the court said orally

sentencing record.5

infected

noted.
by

We

cannot

must evaluate

though it deviates in at least one salient

More importantly,
virulent error

as

part and parcel of

Viewed in

written explanation is insufficient to

we

defendant.

of

that

context, the

overcome the deficiencies

the

law,

written
and,

judgment

is

thus, cannot

be

accorded substantial weight.

Explaining the court's error

can best be

accomplished

____________________

5Where, as
in this case, the
district court's oral
expression of its sentencing rationale varies materially from its
subsequent written expression of that rationale, appellate courts
have tended to honor the former at the expense of the latter.
See, e.g., United States v. Drummey, 949 F.2d 997, 997-98 (8th
___
____ _____________
_______
Cir. 1991). Because we find that neither the court's oral nor
written findings adequately support the sentence, we need not
address the incipient problems posed by the inconsistencies
between them.
13

by taking

a close

look

at our

opinion in

Pion.
____

There,

the

defendant

had agreed

installments.

Pion,
____

he had tendered
At

to sell

25 F.3d at 20.

judge imposed

doing

inclusion

DEA arrested him after

a ten-year

See id.
___ ___

minimum mandatory

so.

installment, he was not reasonably capable

See id.
___ ___

at 24-25.

Pion

assigned error

to the

of the undelivered quantity on the ground that, as the

sentencing court had

it.

in two

finding that, though Pion intended to deliver the

second three-kilogram
of

The

of cocaine

the first (three-kilogram) installment.

sentencing, the

sentence after

six kilograms

found, he lacked

the capability to

secure

We rejected that argument, holding that application note 12

"requires

the

sentencing court

negotiation in an uncompleted
`the defendant did not
capable

to

include

under

distribution' unless it finds that

intend to produce and was

___

of producing the negotiated amount.'"

application note 12).

`the weight

not reasonably

Id. at 25 (citing
___

Consequently, Pion's claim failed "because

neither conjunctive clause in note 12 can be ignored."

In the document under consideration here,

Id.
___

the district

judge wrote that, based on the evidence, he "was not sufficiently

satisfied

that

the

defendant

would

have

actually

transferred three additional kilograms of cocaine on the next day

. . . ."

He described

this as "the factor necessary" to trigger

the imposition of the higher (ten-year) minimum mandatory term of

imprisonment.
teaches, whether

As a
a

matter of

law, the judge

defendant would

actually

erred:
have

as Pion
____

transferred

_____

________

____

___________

additional drugs is not the relevant inquiry.

14

By focusing on the factual probability of delivery, the

lower

court turned the proper rule inside

the proposition

out.

that a defendant's subjective

Pion stands for

____

intent to deliver

drugs under negotiation is sufficient to trigger their inclusion,

even

if

the

defendant's

impossibility.

See id.
___ ___

the teeth of this

intent

is

stymied

by

objective

The judge's reasoning flies directly in

proposition, and, in the

bargain, contradicts

the plain language of application note 12.

Although what we

have said to this

point explains the

need to vacate

Muniz's sentence, we feel obliged to comment on a

larger issue.

Judges are free, of course, to express their views

about the wisdom of guideline sentencing, and many have chosen to

do so.
judicial
further

But

when such value judgments occur in

the context of a

proceeding, it is incumbent upon the judge to avoid the

(and

quite

different)

impression

that

distaste

has

crossed the line into

disregard.

The circumstances of

the case

at bar underscore this danger.

When, for example, the AUSA reminded the district judge

that our opinion in Pion was on all fours, the judge stated:
____
I understand what the First Circuit said.
What I have problems with is that when
somebody is charged in an indictment [with] a
specific amount and then talk that they're
going to produce something else but they
don't because they're arrested, and then you
come to court, . . . and you ask for a
sentence
based
on a
fact
that three
additional kilograms [would be] delivered,
it's a very uncomfortable position to be
placed in.
It seems to me that if the
government wants to charge somebody for five
kilograms, then why not grab him after they
produce them, rather than arresting him after
15

two and then asking for five additional years

for something that he hasn't done.
Moments later,
the

the judge repeated these

court said

much the

same thing

rejecting the government's proffer

sentiments.6

in announcing

Moreover,

its rulings

of relevant conduct evidence.

See supra note 4.

___ _____

It is not these statements in the abstract that present

the

problem;

rather, it

district court's

is the

judicial actions.

positions; but to revise

effort

at

they provide

Courts do

for the

sometimes change

findings, without direct explanation or

support,

after

controlling legal rules,

this case,

context

substantially

can create a

damaging impression.

that unhealthy circumstance also

to be drawn to other cases

criticizing

the

In

permitted attention

in which the court of appeals rebuked

the district judge for failure to adhere to the guidelines.

See, e.g., United States v. Bennett, 37 F.3d 687 (1st Cir. 1994);
___ ____ _____________
_______
United States v. Norflett, 922
______________
________

F.2d 50 (1st

Cir. 1990); United

______

States v. Williams, 891 F.2d 962 (1st Cir. 1989).

______
________
It is
commands, so
honored.

vital

long as

to the

rule

of law

that

they are constitutionally

Federal courts, in

particular, are not

congressional

appropriate, be

at liberty to

____________________
6The court confided:
I don't like to sentence someone for five
additional years on weight that was not
transmitted or transferred or produced, the
weight of the narcotic, something that was
promised,
especially
if it's
a double
sentence. If it was asking for a year, maybe
you could sallow it, but you're going from
five to ten years, mandatory.
16

disregard

lawful

Commission

for

directives
that

last analysis, it is
judges be

Congress

matter) simply

conflict with the judge's

that

of

(or

because

the

Sentencing

those

directives

personal notions of fairness.

crucial to public confidence in

seen

as enforcing

the law

and

In the

the courts

as obeying

it

themselves.
This
guidelines

principle

which,

in

applies
substance,

with

full

force

are
___

commands

to

to

the

judges.7

Constitutional defects aside, "when . . . the legislative trumpet

sounds clearly, courts are duty bound to honor the clarion call."
United States v. Jackson, 30 F.3d 199, 204 (1st Cir. 1994).
_____________
_______
V.
V.

THE REMEDY
THE REMEDY
We

riddled by

must
error.

yet decide

how

Mindful, as

best to

handle

we are, of both

a situation

the high stakes

and the abundant ambiguities, we decline the parties' invitations

to speculate

or did

not

mean.

We

into

the

breach

by

attempting, on a cold record, to find the facts from scratch.

In

the end, the

no

likewise

principled

about what

decline

to

the

court did

insert

course of prudence
choice but

to

ourselves

beckons.

vacate the

We

defendant's sentence

remand for a completely new sentencing hearing.

is especially

are left with

attractive here because of

and

This alternative

the strong possibility

that

the

judge's antipathy

for

the

sentencing regime

either

____________________

7Of course, this principle applies with equal if not greater

force in cases to which minimum mandatory sentences attach.
In
those situations, Congress, by definition, has made explicit
policy choices.
17

influenced or might reasonably be thought to have influenced

imposition of the particular sentence.
are

the

For reasons that we think

apparent, we direct that resentencing

be before a different

judge.

The defendant's conviction is affirmed, his sentence is

_______________________________________________________

vacated, and the cause is remanded for resentencing, with

_________________________________________________________________
instructions.
____________

18