United States v. Rondon-Garcia ( 2018 )

United States Court of Appeals
For the First Circuit
No. 17-1098
UNITED STATES OF AMERICA,
Appellee,
v.
SANTOS DANIEL RONDÓN-GARCÍA,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Aida M. Delgado-Colón, U.S. District Judge]
Before
Howard, Chief Judge,
Torruella and Kayatta, Circuit Judges.
Mary June Ciresi, on brief for appellant.
John A. Mathews II, Assistant United States Attorney,
Rosa Emilia Rodríguez-Vélez, United States Attorney, and
Mariana E. Bauzá-Almonte, Assistant United States Attorney,
Chief, Appellate Division, on brief for appellee.
March 23, 2018
TORRUELLA, Circuit Judge. In this sentencing appeal,
the Defendant-Appellant Santos Daniel Rondón-García ("Rondón")
insists that his eighteen-month sentence is both procedurally
and substantively unreasonable. After careful review, we
affirm.
I. Background
As this appeal concerns the imposition of the
defendant's sentence, we briefly summarize the relevant facts
and charted course of this case. We note that, because Rondón
pled guilty and does not challenge the factual background, we
draw those facts from the change-of-plea colloquy, the
unchallenged portions of the Presentence Investigation Report
("PSR"), and the transcript of the sentencing hearing. See
United States v. Fernández-Santos, 856 F.3d 10, 14 n.1 (1st Cir.
2017).
On September 8, 2015, agents from the Puerto Rico
Police Department's Bayamón Intelligence Division executed a
search warrant at Rondón's residence, where he lived with his
common law wife, Alitza Rodríguez-Castrillón ("Rodríguez"), and
their three children. After the agents detained Rondón and
Rodríguez in the living room, they searched the residence and
seized two notebooks containing drug ledgers, forty-one small
plastic zip-lock baggies containing a white powder that field
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tested positive for cocaine, two cellular telephones, one
fifteen-round capacity magazine fit for a 9mm Glock pistol
containing thirteen rounds of ammunition, and one crack pipe.
The police did not find a gun in the residence.
That same day, agents from the Bureau of Alcohol,
Tobacco, Firearms, and Explosives ("ATF") arrested Rondón.
After waiving his Miranda rights, Rondón admitted to selling the
cocaine, but stated that he did not remember the pistol magazine
being there and that it could belong to a friend. The ATF
agents also arrested and interviewed Rodríguez who, after
waiving her Miranda rights, stated that she did not know that
Rondón had the cocaine and that, about a month prior, she saw
Rondón walking in the street with a black firearm. She further
told the agents that she did not know if Rondón owned a gun, but
she had not seen him with a weapon in the house.
On September 9, 2015, Rondón was charged by Complaint
with possession with intent to distribute cocaine, in violation
of 21 U.S.C. § 841(a)(1). On September 17, he was released on
bail into Rodríguez's custody and ordered to comply with
conditions of his release. On November 24, 2015, pursuant to a
plea agreement, Rondón waived indictment and pled guilty to an
Information charging him with one count of possession with
intent to distribute less than fifty grams of cocaine, in
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violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(C). His plea
agreement with the government included a calculation of his
United States Sentencing Guidelines ("Guidelines") sentencing
range ("GSR"). The agreement set Rondón's base offense level at
twelve, and included a two-level reduction for acceptance of
responsibility, resulting in a final adjusted offense level of
ten. While the plea agreement included no stipulation as to
Rondón's Criminal History Category ("CHC"), it provided that,
should the district court deem Rondón to have a CHC of I, his
GSR would be six to twelve months of imprisonment. The parties
agreed that Rondón could request a sentence at the lower end of
the applicable range, while the government reserved the right to
recommend any sentence within the GSR. Rondón remained on bail
pending sentencing with Rodríguez as his third party custodian.
On November 30, 2016, Rodríguez alerted the U.S.
Probation Office, via letter, that she no longer wanted to be
Rondón's third party custodian because she had "decided to end
the strained relationship with [him]." The same day, the
probation officer filed with the court an informative motion to
this same effect. On December 19, 2016, Rodríguez was shot and
killed while driving in Guaynabo, Puerto Rico. The probation
officer filed another informative motion that same day to inform
the court of her death.
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On December 21, 2016, the U.S. Probation Office filed
its PSR with the district court. Like the plea agreement, it
determined that Rondón's offense level was twelve pursuant to
U.S.S.G. § 2D1.1(c)(14), and recommended a two-level reduction
for acceptance of responsibility pursuant to U.S.S.G. § 3E1.1
(a), making Rondón's total offense level ten. The PSR specified
that while Rondón had no prior convictions, giving him a
criminal history score of zero, he had been previously arrested
on four occasions. The PSR concluded that, based on his total
offense level and CHC, Rondón's GSR was six to twelve months of
imprisonment. Neither party filed any objections to the PSR.
Rondón was sentenced on December 28, 2016. At
sentencing, Rondón's counsel argued for a sentence of six months
of imprisonment, at the low end of the GSR, while the Government
asked the court to impose a sentence of twelve months. In
making his pitch, his defense counsel emphasized that, as a
result of Rodríguez's death, Rondón would now be the lone parent
to his three children. He also pointed to Rodríguez's statements
to probation when interviewed for the PSR that Rondón was
dedicated to his children and requesting that the court show
leniency. The sentencing court responded that Rodríguez had
informed the probation office prior to her death that she no
longer wanted to be Rondón's third party custodian "because of
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verbal and physical threats and violence displayed by this
defendant against her. There is a written letter to that effect
in the hands of the Probation Officer, which is consistent with
the alleged charges of domestic violence that were [previously]
charged." For his part, Rondón's attorney claimed that he was
"not privy" to the specific information contained in Rodríguez's
letter.
The court then discussed the circumstances of
Rodríguez's murder, relayed to it by the probation officer,
noting that Rodríguez brought the children to Rondón's mother's
house "at his request," and then, after Rondón "asked her
specifically to go and pick the children up[,] . . .
coincidentally she [was] killed as she was close to the
residence. . . . She was murdered on her way to pick up the
children." Rondón's attorney responded that the details of
Rodríguez's death were "news to [him]," and that he "[didn't]
see that information." He did, however, acknowledge that he was
aware that Rodríguez had asked to be removed as Rondón's third
party custodian, and that the PSR contained information that she
was murdered while driving her vehicle in Guaynabo.
Following this exchange, in support of its
recommendation, the Government pointed out that Rondón was
selling drugs and possessed ammunition in the same apartment in
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which he lived with his kids and now-deceased wife. The court
then adopted the GSR as calculated in the PSR, but noted that it
"ha[d] its qualms" about whether those guidelines "accurately
reflect[ed] the components of the offense." After highlighting
some of the 18 U.S.C. § 3553 factors, including Rondón's age,
dependents, education and employment history, health, and
substance use, the court began its dissection of Rondón's arrest
history. The court noted that "[t]his is Mr. Rondón's fifth
arrest and first conviction," and that he had been previously
arrested for violations of controlled substances laws,
explosives laws, weapons laws, and domestic violence.1 The court
proceeded to discuss each of the prior charges, summarizing the
allegations as written in the PSR, despite the fact that all
were dismissed for lack of probable cause or for speedy trial
violations.
As the court recited the accusations of Rondón's
dismissed 2010 domestic violence charges -– which stemmed from
alleged abuse of Rodríguez -– the court drew a parallel between
the 2010 allegations and the allegations purportedly contained
1 In his four previous arrests, Rondón was charged with nine
separate offenses. Five of these counts were dismissed after no
probable cause was found, and the remaining four were dismissed
for violations of Rules 64 or 247 of the Puerto Rico Rules of
Criminal Procedure -- which are related to speedy trial
violations. See P.R. R. Crim. P. 64, 247.
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in Rodríguez's letter requesting to withdraw as Rondón's third
party custodian. Specifically, the court stated that the
alleged violence resulting in the 2010 charge was the "[s]ame
information she conveyed in 2016 shortly before she was killed[,
a]t the time that she was requesting to be relieved as third
party custody [sic]." At the conclusion of its recitation, the
court stated, "[T]his is not strange that the State system will
fail to carry over in cases such as this, and this is the reason
why this defendant has the fifth known arrest and the first time
that he is convicted is here." The court moved on to discuss
the nature of the offense in the current case, finding it
troubling that Rondón was selling drugs from the residence where
he lived with three young children. Finally, the court
considered the dangers to the community that drug dealing
creates and the violence that is commonly associated with it.
Summing up its considerations, the court then
explained:
[A] departure is warranted and reasons I already
stated are on the record. More so pointing as to
the sale of drugs and the violent conduct of this
defendant and the sale of drugs and keeping drugs in
a house and ammunition where there were minors, and
what appears to be his violent tendencies.
Ultimately, the court sentenced Rondón to an upwardly variant
sentence of eighteen months of imprisonment. In its statement
of reasons, the court indicated that it departed from the
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Guidelines because of "Criminal History Inadequacy" and
"Aggravating/Mitigating Circumstances." This timely appeal
followed.
II. Discussion
"Appellate review of federal criminal sentences is
characterized by a frank recognition of the substantial
discretion vested in a sentencing court." United States v.
Flores-Machicote, 706 F.3d 16, 20 (1st Cir. 2013). This Court
reviews preserved challenges to the reasonableness of sentencing
decisions under an abuse of discretion standard. United States
v. Santiago-González, 825 F.3d 41, 48 (1st Cir. 2016); see also
Gall v. United States, 552 U.S. 38, 46 (2007). Our review is
limited to determining whether the district court's sentencing
determinations were reasonable. Gall, 552 U.S. at 46. When
conducting that review, we first determine whether a sentence is
procedurally reasonable and then, if it is procedurally
adequate, evaluate its substantive reasonableness. Flores-
Machicote, 706 F.3d at 20.
A. Procedural Reasonableness of Rondón's Sentence
We review the district court's method for arriving at
a sentence to ensure that the court did not commit any
"significant procedural error." Gall, 552 U.S. at 51. Examples
of this include "failing to calculate (or improperly
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calculating) the [GSR], treating the Guidelines as mandatory,
failing to consider the [18 U.S.C.] § 3553(a) factors, selecting
a sentence based on clearly erroneous facts, or failing to
adequately explain the chosen sentence—including an explanation
for any deviation from the Guidelines range." Flores-Machicote,
706 F.3d at 20 (alterations in original) (quoting Gall, 552 U.S.
at 51). When a defendant fails to object to the procedural
reasonableness of a court's sentencing determinations at
sentencing, we review only for plain error. Santiago-González,
825 F.3d at 49 n.10; see also United States v. Cortés-Medina,
819 F.3d 566, 569 (1st Cir. 2016). "Plain error review is not
appellant-friendly. It 'entails four showings: (1) that an error
occurred (2) which was clear or obvious and which not only
(3) affected the defendant's substantial rights, but also
(4) seriously impaired the fairness, integrity, or public
reputation of judicial proceedings.'" Cortés-Medina, 819 F.3d
at 569 (quoting United States v. Duarte, 246 F.3d 56, 60 (1st
Cir. 2001)). Both parties agree that plain error is the correct
legal framework for this Court to employ here, as Rondón did not
object to his sentence on procedural or substantive grounds
before the district court. With this standard in mind, we turn
to the arguments.
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Rondón's primary contention is that his sentence was
procedurally flawed because the sentencing court relied on
impermissible and prejudicial factors. Specifically, Rondón
raises two errors: that the court gave undue weight to its
speculation of the circumstances surrounding Rodríguez's murder,
and that the court improperly considered his prior arrest
record. We will address each in turn, but we begin with the
principles.
When fashioning the appropriate sentence, a court must
consider numerous factors, including: the nature and
circumstances of the offense and the history and characteristics
of the defendant; the need for the sentence to reflect the
seriousness of the offense and promote respect for the law, to
provide deterrence, to protect the public, and to provide the
defendant with needed training and care; the kinds of sentences
available; the established sentencing range; and the need to
avoid disparities in sentencing. 18 U.S.C. § 3553(a)(1)-(4),
(6). In so doing, "[n]o limitation shall be placed on the
information concerning the background, character, and conduct of
a person convicted of an offense which a court of the United
States may receive and consider." 18 U.S.C. § 3661. During a
sentencing hearing, neither the Federal Rules of Evidence nor
the Sixth Amendment's confrontation clause applies, United
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States v. Bramley, 847 F.3d 1, 5 (1st Cir. 2017), and thus "the
sentencing court has broad discretion to accept hearsay evidence
at sentencing so long as the court supportably concludes that
the information has sufficient indicia of trustworthiness."
United States v. Rodríguez, 336 F.3d 67, 71 (1st Cir. 2003).
Yet, this discretion is not boundless and must comply
with due process considerations and the parameters of Federal
Rule of Criminal Procedure 32. Bramley, 847 F.3d at 5; see also
Betterman v. Montana, 136 S. Ct. 1609, 1617 (2016) ("After
conviction, a defendant's due process right . . . is still
present. He retains an interest in a sentencing proceeding that
is fundamentally fair."). Due process requires that the
defendant be sentenced on information that is not false or
materially inaccurate. United States v. Curran, 926 F.2d 59, 61
(1st Cir. 1991). A sentencing court may consider both charged
and uncharged conduct of the defendant, but only if proven by a
preponderance of the evidence. United States v. González, 857
F.3d 46, 59 (1st Cir. 2017); see also United States v. Lombard,
72 F.3d 170, 176 (1st Cir. 1995). The defendant must be given
adequate notice of those facts prior to sentencing and the court
must "timely advise[] [the defendant] . . . that it heard or
read, and was taking into account [those facts]." United States
v. Acevedo-López, 873 F.3d 330, 341 (1st Cir. 2017) (second
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alteration in original) (quoting United States v. Berzon, 941
F.2d 8, 21 (1st Cir. 1991)). "[A] defendant must be provided
with a meaningful opportunity to comment on the factual
information on which his or her sentence is based," Berzon, 941
F.2d at 10, unless that information "fall[s] within the garden
variety considerations which should not generally come as a
surprise to trial lawyers who have prepared for sentencing."
United States v. Pantojas-Cruz, 800 F.3d 54, 61 (1st Cir. 2015)
(internal quotation marks).
1. Ex Parte Communication
Rondón's first claim relies on the sentencing court's
discussion of the circumstances surrounding Rodríguez's murder,
which Rondón argues amounts to an insinuation by the court that
he was somehow involved and responsible. Citing due process
concerns with the court's consideration of supposedly unreliable
information, Rondón declares that "[t]he court's tacit innuendo
was prejudicial and founded on speculation and improperly before
the court." Rondón points to the district court's references to
information contained in Rodríguez's letter to probation, and to
the fact that Rodríguez was allegedly on her way to pick up the
children from his mother's house at Rondón's request when she
was murdered close to the residence. This information was
relayed to the court by probation, and, according to Rondón, was
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not provided to him in the PSR or in either of the informative
motions the probation officer filed.
As a threshold matter, the government argues that
Rondón has failed to explain why it was improper for the
district court to consider the letter and thereby has waived
that argument. We disagree. Before the sentencing court and in
his opening brief, Rondón and his counsel repeatedly proffered
that only the court and probation were privy to both the letter
submitted by Rodríguez and information that the probation
officer gave to the court pertaining to Rodríguez's death. When
the sentencing court first discussed Rodríguez's November 2016
letter, the following exchange took place:
[DEFENSE]: I am not privy to that information.
Whatever information she gave to the Probation
Officer I know about but that information has never
been notified to me.
THE COURT: But you heard about that through the
motion that was filed.
[DEFENSE]: But it only says an estranged
relationship.
THE COURT: The letter alludes that she can no longer
act as the third party custody [sic], that the
residence belongs to her, that she has it rented and
all of the belongings in there belong to her and he
has been physically and verbally abusive and violent
and she can no longer hold on to the situation.
[DEFENSE]: Well, I have no information to say
whether that is true or false.
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Further, after the sentencing court relayed information that it
learned from the probation officer about Rodríguez's death,
counsel responded:
[DEFENSE]: That is news to me.
THE COURT: She was murdered on her way to pick up
the children.
[DEFENSE]: But I don't see that information.
THE COURT: I am giving you the information, but the
Presentence Report contains the information that she
was killed on December 19 in Guaynabo.
[DEFENSE]: And she notified the Probation Officer
that she did not want to continue as third party
custody [sic], that I knew.
THE COURT: The new information is the one that the
Probation Officer obtained concerning the fact that
she had been requested to go in the morning hours to
pick up the children and that is when she gets
killed.
[DEFENSE]: That I cannot argue, Your Honor.
The very crux of Rondón's argument is that this information was
improperly before the sentencing court due to its unreliable
nature, and the fact that he had not been informed of it in
advance of sentencing. Therefore, while the claim is subject to
plain error review for Rondón's failure to object, we do not
find the argument waived.
Moreover, the government insists that all of the
factual information relevant to sentencing was disclosed to
Rondón, and that he had a reasonable opportunity to comment.
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But, while the informative motions and the PSR filed by the
probation officer stated that Rodríguez requested to withdraw as
Rondón's third party custodian because she "decided to end her
strained relationship with Mr. Rondón-García," none of these
filings contained information that the third-party-withdrawal
request was made due to allegations of physical or verbal abuse.
The letter to probation was never itself entered into the record
and those facts were not incorporated into the PSR. Cf.
Acevedo-López, 873 F.3d at 341 (finding no lack of notice where
a summary of the incident at issue was contained in PSR and the
challenged portions of the defendant's detention hearing were
part of the record). We also note that the PSR contained
information that Rodríguez was shot in the head while driving
her vehicle on December 19, 2016, in Guaynabo, but contained
nothing suggesting Rondón's potential involvement in her murder,
a possibility that the sentencing court implied.
A sentencing court using documents outside of the PSR,
and that are therefore not subject to Federal Rule of Criminal
Procedure 32, "should either make clear that the document is not
being used for its factual content, or should disclose to the
defendant as much as was relied upon, in a timely manner, so as
to afford the defendant a fair opportunity to examine and
challenge it." Acevedo-López, 873 F.3d at 342 (quoting Curran,
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926 F.2d at 63). While we have recognized the sentencing
court's right to consult ex parte with a probation officer to
receive advice, "if the probation officer reveals new facts
relevant to the sentencing calculus, those facts cannot be
relied upon by the sentencing court unless and until they are
disclosed to the parties and subjected to whatever adversarial
testing may be appropriate." Bramley, 847 F.3d at 7. Providing
new factual information in response to a defendant's sentencing
argument does not provide the defendant "a fair opportunity to
examine and challenge it." Id. at 6 (quoting Curran, 926 F.2d
at 63); see also Berzon, 941 F.2d at 10; U.S.S.G. § 6A1.3(a).
Here, as noted above, the evidence challenged is absent from the
record and was not provided prior to the sentencing hearing.
Given the court's discussion of the evidence and its explanation
that its departure from the GSR was based, at least in part, on
the defendant's "violent conduct" and "violent tendencies," the
record suggests that the allegations of abuse were at least a
factor in its sentencing calculus. Coupled with defense
counsel's repeated rejoinders that he had not been provided
notice of the information, we find the failure to provide this
factual information to the defendant to be erroneous.
Further, without more, we cannot say this information
had a sufficient indicia of reliability to meet the requisite
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preponderance of the evidence standard. While hearsay is both
an acceptable and often important part of the sentencing
process, see Acevedo-López, 873 F.3d at 340; United States v.
Hankton, 432 F.3d 779, 780-90 (7th Cir. 2005), and the court may
use dependable information even if not subjected to cross-
examination, United States v. Cintrón-Echautegui, 604 F.3d 1, 6
(1st Cir. 2010), a defendant must have "notice prior to its use
and . . . the opportunity to challenge its reliability." United
States v. Cruz, 120 F.3d 1, 2 (1st Cir. 1997). As previously
noted, the allegations of physical and verbal abuse contained in
the letter were not previously provided to the defendant, nor is
there anything in the record corroborating these new
allegations. Cf. United States v. Ramírez-Negrón, 751 F.3d 42,
52 (1st Cir. 2014) (hearsay testimony contained adequate indicia
of reliability when accompanied by agent's personal observations
and knowledge). Nor can we say that Rodríguez's letter was
"thorough and replete with details" without the benefit of
seeing the letter. Rodríguez, 336 F.3d at 71. As to the fact
that Rodríguez and Rondón coordinated a drop-off of their
children prior to her death, while the district court stated
that it was alerted to the information by the probation officer,
the record is unclear as to where the probation officer obtained
this information. More importantly, Rondón was only told of
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this information at sentencing and was not given a meaningful
opportunity to challenge the reliability of this unfavorable
information. See United States v. Zavala-Martí, 715 F.3d 44,
55-56 (1st Cir. 2013). Use of this information constituted a
clear error of law.2
Rondón must make it past two additional hurdles of
plain error review. Finding that a claimed error affected a
defendant's substantial rights requires a showing that, there is
"a reasonable probability that, but for the error, the district
court would have imposed a different, more favorable sentence."
United States v. Perazza-Mercado, 553 F.3d 65, 78 (1st Cir.
2009) (quoting United States v. Gilman, 478 F.3d 440, 447 (1st
Cir. 2007)).3 We have before us not a run-of-the mill within-
guidelines sentence, but rather an upward variance not requested
by the Government. In its statement of reasons, the court noted
that its basis for the departure was the "aggravating
2 Rondón also raises an insufficiency of the evidence argument,
positing that "there was no evidence to assume that [he] was
responsible for [the] murder." However, as we have found the
use of this information to be improper on both notice and
reliability grounds, we need not address his sufficiency-of-the-
evidence argument at this time.
3 We have applied the "reasonable probability" test in
sentencing "departure" cases, see, e.g., United States v.
Wallace, 461 F.3d 15, 44 (1st Cir. 2006), and in cases like this
one in which a "variant" sentence was imposed, see, e.g., United
States v. Rivera-González, 809 F.3d 706, 712 (1st Cir. 2016).
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circumstances of the offense" and its belief that the
defendant's criminal history category was underrepresented in
prior cases in state court. It is clear from our review of the
sentencing transcript, see United States v. Vásquez-Martínez,
812 F.3d 18, 23-24 (1st Cir. 2016) (stating that an appellate
court can make reasonable inferences from the district court
record), that those aggravating circumstances to which the
sentencing court was referring include the fact that Rondón was
keeping and selling drugs in a house where minors were present,
that Rondón had ammunition in the house and was seen carrying a
firearm, and the prevalence of "drug point[s]" within the
metropolitan area of Puerto Rico. However, the court also
expressly stated that it relied on "all of the[] factors"
previously discussed, which included -- at great length -- the
improperly admitted information.
But even assuming that the district court would have
imposed a more favorable sentence, our discretionary correction
of the error in this case is not warranted. See United States v.
González-Castillo, 562 F.3d 80, 84 (1st Cir. 2009) (exercising
discretion to correct plain error where "fairness of appellant's
sentence was impaired"); United States v. Mangone, 105 F.3d 29,
36 (1st Cir. 1997) ("Our final step in the [plain error]
analysis is to determine whether we should, in our discretion,
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order correction of this plain error that affects substantial
rights." (citing United States v. Olano, 507 U.S. 725, 735
(1993))). While the error that occurred at Rondón's sentencing
arguably affected the fairness, integrity, or public reputation
of the judicial proceeding, see Mangone, 105 F.3d at 36, there
are at least two considerations that suggest that we should not
intercede. First, although Rondón belatedly acknowledges the
applicability of the plain error standard in his reply brief, he
makes no argument addressing this fourth prong of that standard,
a failure which is itself sufficient to ground our declining to
exercise our discretion to correct the error. See, e.g., United
States v. Steed, 879 F.3d 440, 452 (1st Cir. 2018). Moreover,
with respect to the fourth prong, a simple calculation reveals
that Rondón has nearly completed the community corrections
center portion of his incarcerative sentence and is about to
begin his statutorily-mandated period of supervised release. We
believe it most unlikely that the district court on remand would
adjust the period of Rondón's transitional incarceration at this
late juncture. Cf. Wallace, 461 F.3d at 44 (noting that the
district court "might (although by no means must) calculate a
[different] sentence upon remand"). Accordingly, while we find
that the district court should have provided Rondón notice of
its intent to use the ex parte information obtained from
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probation and allowed him an opportunity to rebut it, we choose
not to intervene.4
2. Rondón's Arrest Record
Rondón next objects to the court's use of his prior
arrests as a basis for its variance from the GSR, claiming that
the court clearly assumed the allegations underlying those
arrests to be true. As all prior charges against him were
dismissed, Rondón claims that the district court lacked any
reliable, factual grounds to justify its consideration of those
arrests, and that the underlying allegations failed to meet the
preponderance of the evidence standard.
Rondón cannot demonstrate that it was plain error for
the court to reference his prior arrests. The Guidelines state
that "prior similar adult criminal conduct not resulting in a
criminal conviction" may form the basis for an upward departure
from the guideline range, but that a "prior arrest record itself
shall not be considered for purposes of an upward departure
4 We take this opportunity, however, to encourage appellate
counsel to inform us of the stakes early during the appellate
process in appropriate cases. In a case in which counsel has
identified a potentially serious sentencing error affecting a
sentence that is likely to be served prior to the completion of
the appellate process, a motion to expedite briefing and
consideration is not unwelcome. Cf. Burns v. United States, 501
U.S. 129, 154 n.7 (1991) (Souter, J., dissenting) (identifying
appellate difficulties for defendants serving modest sentences
after erroneous sentencing decisions).
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under this policy statement." U.S.S.G. § 4A1.3(a)(2)(E), (a)(3).
Further, this Court has stated that a district court may rely on
the information contained in a PSR at sentencing:
"Generally, a PSR bears sufficient indicia of
reliability to permit the district court to rely on
it at sentencing." United States v. Taylor, 277
F.3d 721, 724 (5th Cir. 2001). The defendant is
free to challenge any assertions in the PSR with
countervailing evidence or proffers, in which case
the district court is obliged to resolve any genuine
and material dispute on the merits. But if the
defendant's objections to the PSR are merely
rhetorical and unsupported by countervailing proof,
the district court is entitled to rely on the facts
in the PSR.
United States v. Olivero, 552 F.3d 34, 40 (1st Cir. 2009)
(quoting United States v. Cyr, 337 F.3d 96, 100 (1st Cir.
2003)). Here, the district court invoked Rondón's arrest
history as contained in his PSR, to which Rondón did not object.
Moreover, his PSR contained detailed facts underlying the
individual charges listed in his arrest record. This failure to
object constitutes a waiver of Rondón's right to challenge the
information contained in the PSR. See United States v. Serrano-
Mercado, 784 F.3d 838, 847-48 (1st Cir. 2015); United States v.
Turbides-Leonardo, 468 F.3d 34, 37-38 (1st Cir. 2006); see also
United States v. Ocasio-Cancel, 727 F.3d 85, 91-92 (1st Cir.
2013) (stating that, when the defendant did not object to the
PSR's discussion of dismissed charges against him, "the district
court may treat the fact as true for sentencing purposes.").
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This Court, however, has recently cautioned district
courts against using arrests not resulting in convictions to
speculate about or infer unlawful behavior unless there is proof
by a preponderance of the evidence of the conduct initiating
these arrests or charges. Cortés-Medina, 819 F.3d at 570
("Today, we caution district courts against placing weight on
such speculation."). See also United States v. Gallardo-Ortiz,
666 F.3d 808, 815 (1st Cir. 2012) ("We have cautioned against
district courts relying on mere arrests as indicative of a
defendant's character to justify an upward departure from the
GSR since a criminal charge alone does not equate with criminal
guilt of the charged conduct."). And here, the district court
clearly did give Rondón's criminal history weight, methodically
discussing the entries of his arrest record, concluding that
"this is not strange that the State system will fail to carry
over in cases such as this, and this is the reason why this
defendant has the fifth known arrest and the first time that he
is convicted is here." Further, the district court proclaimed
that the defendant's criminal history category, involving no
prior convictions, underrepresented his past wrongdoing. "[A]
court imposing incarceration for a later crime cannot simply
presume that past charges resolved without conviction . . . are
attributable to flawed or lax prosecutorial or judicial systems
-24-
rather than the defendant's innocence." Cortés-Medina, 819 F.3d
at 576-77 (Lipez, J., dissenting).
But, Rondón's argument once again must succumb to the
heavy burden of plain error review. In United States v.
Delgado-Sánchez, while acknowledging that "when the occasion
presents itself, we very well may sustain a preserved challenge
to a sentence that treats arrests as proof of unlawful conduct,"
we found that "[the defendant's] plain-error appellate challenge
provides no such occasion." 849 F.3d 1, 13 (1st Cir. 2017).
Plain error review requires us to reverse only where a lower
court's error is clear or obvious in light of the prevailing
law, but "Cortés-Medina held only that the law on this question
was unclear." Id. Thus, while we once again express our
distaste for a district court's reliance on a defendant's record
of prior arrests and charges without convictions, we find that
the court's use of the purported criminal conduct underlying
Rondón's criminal charges, to which he did not object, did not
amount to clear error. Rondón's second claim must suffer the
same fate as his first.
We hold that, on plain error review, the procedural
errors in Rondón's sentence do not warrant reversal. We move
next to Rondón's claim of substantive unreasonableness.
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B. Substantive Reasonableness of Rondón's Sentence
Rondón also did not preserve his substantive
reasonableness claim below. Because the standard of review for
unpreserved challenges to the substantive reasonableness of a
sentence remains unclear, we will give Rondón the benefit of the
doubt and review under the more favorable abuse of discretion
standard. See United States v Ruiz-Huertas, 792 F.3d 223, 228
(1st Cir. 2015).
"[S]ubstantive unreasonableness encompasses whether
the sentence survives scrutiny when examined under the totality
of the circumstances." Santiago-González, 825 F.3d at 48
(citing United States v. Del Valle-Rodríguez, 761 F.3d 171, 176
(1st Cir. 2014)). A sentence is substantively reasonable if it
rests on "a plausible sentencing rationale and a defensible
result." United States v. Martin, 520 F.3d 87, 96 (1st Cir.
2008). "'[S]entencing becomes a judgment call' involving an
intricate array of factors." Flores-Machicote, 706 F.3d at 21
(quoting Martin, 520 F.3d at 92). We only reverse where the
sentence is outside of the "expansive universe of reasonable
sentences." United States v. King, 741 F.3d 305, 308 (1st Cir.
2014).
Rondón claims that the court "gave substantial weight
to invalid, unsubstantiated grounds to enhance [his] sentence."
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As noted above, see supra Part II(A)(1), some of the grounds
upon which the court relied during sentencing were indeed
invalid. However, the record shows that the district court also
relied on several aggravating circumstances supported by the
record in imposing its upward variance. The district court
pointed to Puerto Rico's drug distribution problem, see United
States v. Zapata-Vázquez, 778 F.3d 21, 23 (1st Cir. 2015)
("[T]he sentencing court may take into account the
characteristics of the community in which the crime took place
when weighing the offense's seriousness . . ."), the nature of
the charged offense, the fact that Rondón kept drugs and
ammunition in his home where his three children lived, and the
presence of paraphernalia indicating that this was not a single
incident. The district court weighed the 18 U.S.C. § 3553
factors, highlighting Rondón's age, education, health, substance
use, and possession of a firearm. Setting aside the invalid
grounds, we find that an eighteen-month sentence would still
have been well within the universe of reasonable sentences for
this offense in light of all of the above circumstances. While
Rondón may disagree with the weight given to those aggravating
factors, "[w]eighing of those factors is left largely within a
sentencing court's discretion." United States v. González-
Rodríguez, 859 F.3d 134, 140 (1st Cir. 2017).
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Finding the sentence reasonable, we hold that the
district court did not abuse its discretion.
III. Conclusion
For the foregoing reasons, the sentence is affirmed.
Affirmed.
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