US v. Candelaria-Silva

Filing 920091223

Opinion

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Not for Publication in West's Federal Reporter

United States Court of Appeals
For the First Circuit

No. 08-2131

UNITED STATES,

Appellee,

v.

MOISÉS CANDELARIA-SILVA,

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO

[Hon. José Antonio Fusté, U.S. District Judge]

Before

 Torruella, Selya and Boudin,
Circuit Judges.

    Moisés Candelaria-Silva on brief pro se.
    Thomas F. Klumper, Assistant U.S. Attorney, Nelson Pérez-Sosa,
Assistant U.S. Attorney, and Rosa Emilia Rodríguez-Vélez, United
States Attorney, on brief for appellee.

 

December 23, 2009

 

         Per Curiam. After a thorough review of the parties'
submissions and of the record in this case, including the original
trial record, we vacate the district court's order denying
defendant Moises Candelaria-Silva's motion for reduction of
sentence and remand for further proceedings.
         The district court denied Candelaria's motion on the
ground that "[a]ny of the other narcotics [involved in this
offense] standing alone substantiate the Offense Level of 42 for
which defendant was sentenced." We have not been directed to any
record support for this factual conclusion. The trial transcript
does not appear to contain sufficient evidence with regard to the
types and quantities of drugs involved in Candelaria's offense to
support this conclusion. Likewise, the Pre-Sentence Report
prepared in this matter does not provide any estimate of the types
or quantities of drugs involved in the offense. While Candelaria
was part of a larger conspiracy that may have handled a sufficient
amount of powder cocaine, heroin, or some combination thereof to
support the highest base offense level of 38, Candelaria may only
be held responsible for those drugs he personally handled as well
as those that were reasonably foreseeable to him. See U.S.S.G. §
1B1.3(a)(1). The district court's conclusions regarding the types
and quantities of drugs involved in the offense must be based on
something more than "hunch or intuition." United States v.
Marrero-Ortiz, 160 F.3d 768, 780 (1st Cir. 1998). Because we have
not been directed to any record support for the court's factual
conclusion, we vacate the order denying relief and remand for
further proceedings. The sentence imposed may or may not be
appropriate; but it cannot be sustained on the basis of a factual
conclusion that has no evident record support.
         The district court's order denying appellant Moises
Candelaria-Silva's motion for reduction of sentence is vacated, and
the matter is remanded.