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When the basis for a sentence is clearly unclear…you resentence.

Bonifacio Toribio-Almonte was indicted on two counts: (1) conspiracy to import five kilos or more of cocaine and one or more kilos of heroin into the U.S., and (2) conspiracy to possess and distribute five kilos or more of cocaine and one or more kilos of heroin on board a vessel within U.S. customs waters.  On the morning his trial was set to begin, he pled guilty without a plea agreement.

Mr. Toribio-Almonte’s guideline range was 188-235 months in prison.  He requested a sentence below the guidelines, or at the very least, his minimum mandatory sentence, which was 120 months.  The Government requested a 235 month sentence.  To support its request for a sentence at the high end of the guideline range, the Government claimed Mr. Toribio-Almonte was a leader or organizer of the conspiracy.  The problem for the Government was that it had no evidence whatsoever to back up its claim.

Defense counsel argued Mr. Toribio-Almonte was a minor participant in the scheme.  The Government disputed defense counsel’s characterization and argued that a “based on the debriefing of a coconspirator” Mr. Toribio-Almonte was an organizer.  But the Government provided no details about the debriefing or information relayed by the coconspirator.

Although Mr. Toribio-Almonte’s alleged role as a leader/organizer of the scheme was the only “fact debated at the hearing,” the district court made no findings on the issue.  Instead, the district court announced it was sentencing Mr. Toribio-Almonte to 188 months’ imprisonment.  The only factors the district court identified as a basis for the sentence were Mr. Toribio-Almonte’s status as a father, his lack of criminal record or history of substance abuse, and a past illegal entry into the U.S.  Although defense counsel argued repeatedly that Mr. Toribio-Almonte was a minor participant in the scheme, counsel did not object to the sentence or the district court’s failure to resolve the factual dispute on this point.

On appeal, Mr. Toribio-Almonte argued his sentence was procedurally and substantively unreasonable for various reasons.  The First Circuit addressed only one of his arguments: that his sentence was based on erroneous facts.  Specifically, Mr. Toribio-Almonte maintained that the district court erred by relying on the Government’s unsupported assertion that he was an organizer of the conspiracy.  According to the First Circuit, during the appellate proceedings, the Government “made no attempt to defend its assertion that the defendant was a ‘leader’ or organizer.’”  In fact, at oral argument, the Government conceded it adduced no evidence at sentencing to support its claim.

The First Circuit vacated Mr. Toribio-Almonte’s sentence and remanded for resentencing.  It held that even if it “assume[d] the defendant did not adequately preserve his objection,” it was “impossible to determine whether a clear and obvious error (or for that matter, any error at all) occurred” because the “record is silent as to how the [sentencing] court resolved” the question of Mr. Toribio-Almonte’s status as a leader/organizer.  Moreover, the district court sentenced him to 188 months, even though no party requested that specific sentence.  On that record, the First Circuit found “appellate review” of Mr. Toribio-Almonte’s argument “unworkable” because the Court was “wholly unable to discern the [sentencing] court’s rationale” for imposing the 188 month sentence.

This case serves as an interesting exception to the normal rule that “it is typically the defendant’s responsibility to police the adequacy of the record to any deficiencies in the district court’s explanation” at sentencing.  United States v. Gilman, 478 F.3d 440, 447 (1st Cir. 2007).  The First Circuit excused Mr. Toribio-Almonte’s failure to formally object to the sentencing court’s explanation (or lack thereof) of the sentence because defense counsel “engaged in a highly consequential factual dispute before the sentencing court” and because “the government’s position in that dispute had little to no support in the record.”

Mike Brownlee is an appellate attorney in Orlando, Florida with the firm of Fisher Rushmer, P.A.  His practice is dedicated to federal and state civil and criminal appeals.  For more information, visit


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