Dominguez-Rivera v. Hazelwood ( 2022 )

United States Court of Appeals
For the First Circuit
No. 21-1747
UNITED STATES,
Appellee,
v.
ÁNGEL RAMOS-CARRERAS,
Appellant, Defendant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Francisco A. Besosa, U.S. District Judge]
Before
Kayatta, Howard, and Thompson,
Circuit Judges.
José D. Rodríguez, with whom Eric Alexander Vos, Federal
Public Defender, and Franco L. Pérez-Redondo, Assistant Federal
Public Defender, were on brief, for appellant.
Gregory B. Conner, Assistant United States Attorney, with
whom W. Stephen Muldrow, United States Attorney, and Mariana E.
Bauzá-Almonte, Assistant United States Attorney, were on brief,
for appellee.
December 1, 2022
THOMPSON, Circuit Judge. The defendant Ángel Ramos-
Carreras ("Ramos") challenges the sentence the district court
judge imposed after revoking his term of supervised release.
Finding plain error, we reverse and remand for resentencing.
BACKGROUND
First, some background to set the context: In 2011,
pursuant to a plea agreement, Ramos received a five-year prison
sentence and eight years of supervised release for violating 21
U.S.C. §§ 841(a)(1), 846, 860, conspiracy to distribute narcotics
(here, cocaine). Fast forward to 2020, when Ramos was serving his
term of supervised release. In October, local authorities arrested
him "for an investigation on lewd acts," and charged him with
violating Article 133 of the Puerto Rico Penal Code.1 While those
proceedings were underway in the Commonwealth court, the U.S.
Probation Office filed a motion in the federal district court to
notify it about the Commonwealth's prosecution and to allege Ramos
1 Article 133 of the Puerto Rico Penal Code classifies the
following conduct as a third-degree felony: "Any person who
without the intention to consummate the crime of sexual assault
[by penetration] submits another person to an act that tends to
awaken, excite or satisfy the sexual passion or desire of the
accused, under any [one of six enumerated] circumstances,"
including the age of the victim as less than 16 years. United
States v. Cordero-Rosario, Crim. No. 11-556, 2018 WL 8798610, at
*2 & n.5 (D.P.R. Nov. 8, 2018), report and recommendation adopted,
2019 WL 3137453 (D.P.R. July 15, 2019) (quoting P.R. Laws Ann.
Tit. 33, § 4772).
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had violated the "shall not commit another federal, state, or local
crime" condition of his supervised release.
Ramos waived the preliminary hearing and a magistrate
judge found probable cause that Ramos had violated this condition
of release as alleged in the probation officer's motion. At
sentencing -- now before a district court judge -- all agreed the
guideline sentencing range for this supervised-release-condition
violation was four to ten months. Ramos requested nine months,
arguing the initial charge had been ultimately reduced to an
attempt for "one incident with a 15-year-old step-daughter,
touching over her clothes." The government requested three years
(which reflected the maximum sentence allowed pursuant to 18 U.S.C.
§ 3583(e)(3)) based on Ramos' perpetration of a "crime . . .
against nature" and because Ramos had been given "a break" for an
earlier revocation of supervised release for a "minor violation"
(when he'd failed to report to probation in the early days of the
COVID-19 pandemic). The district judge revoked Ramos' term of
supervised release and imposed a three-year term of imprisonment
to be followed by a three-year term of supervised release.
Before announcing the sentence, the district judge
acknowledged that Ramos had signed a plea agreement in the
Commonwealth court for attempting to commit lewd acts in violation
of Article 133 and that Ramos had been sentenced by the
Commonwealth court to five years imprisonment to be served
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consecutively to any other sentence. The district judge commented
that the Commonwealth's sentence "was with aggravating factors but
the minority of the victim was eliminated" and that "[t]he attempt
was against his own 15-year-old-daughter whom he had registered as
his daughter when she was born. He touched and sucked on her left
breast and then touched and squeezed her vagina over her clothing."
At the end of the hearing, Ramos' counsel stated a broad
objection "to the [c]ourt imposing the absolute maximum sentence
as being substantively, procedurally unreasonable." This was the
only objection to the length of the sentence raised during the
hearing. A week or so later, Ramos filed a motion for
reconsideration on the basis that the court may have misunderstood
Ramos' relationship to the complaining witness as that of a
biological father-daughter relationship when she was not actually
biologically related to Ramos, and as a result the "violation of
trust" was "not as aggrieved as the court may have understood."2
In the motion, Ramos described "the facts of th[e Commonwealth's]
conviction [as] based on Mr. Ramos's admitted behavior of touching
a fifteen-year-old female in a sexual manner for sexual
gratification." The district judge summarily denied the motion.
2 Ramos had been dating the complaining witness' mother when
she was born. He agreed to be listed as her father on the birth
certificate and provided support to them during his relationship
with her mother and for a period of time after they no longer lived
all together.
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DISCUSSION
On appeal, Ramos asserts that his upwardly variant
sentence is procedurally and substantively unreasonable, focusing
primarily on the district judge's statement and use of graphic
allegations of the offense from the Commonwealth court's record
when these asserted details were not part of the record before
him. Before we consider this argument, however, we note that Ramos
has not properly preserved it for our review. We typically review
the reasonableness of a criminal sentence under the abuse-of-
discretion standard. United States v. Millán-Isaac, 749 F.3d 57,
66 (1st Cir. 2014) (citing Gall v. United States, 552 U.S. 38, 51
(2007)). But merely stating a broad objection to the procedural
and substantive reasonableness of a sentence at the end of a
sentencing hearing does not preserve Ramos' specific arguments
before us about the district judge's rehearsal of the factual
allegations because, during the hearing, Ramos did not raise any
objection to the court's description of the alleged conduct for
his Commonwealth court conviction. See United States v. Castillo,
981 F.3d 94, 101 (1st Cir. 2020) ("[S]uccessful preservation of a
claim of [sentencing] error for our consideration on appeal
requires that a party object with sufficient specificity such that
the district court is aware of the claimed error."); United States
v. Soto-Soto, 855 F.3d 445, 448 n.1 (1st Cir. 2017) ("A general
objection to the procedural reasonableness of a sentence is not
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sufficient to preserve a specific challenge to any of the
sentencing court's particularized findings. To preserve a claim
of error for appellate review, an objection must be sufficiently
specific to call the district court's attention to the asserted
error." (citations omitted)). We therefore find Ramos' particular
argument forfeited and proceed to review it for plain error only.
See Soto-Soto, 855 F.3d at 448. "Under the plain error standard,
the appellant must show '(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.'" Id.
(quoting United States v. Duarte, 246 F.3d 56, 60 (1st Cir. 2001)).
"[A] district court has broad discretion at sentencing
to consider information pertaining to the defendant and the
defendant's offense conduct." Millán-Isaac, 749 F.3d at 69 (citing
United States v. Zavala–Martí, 715 F.3d 44, 54-55 (1st Cir. 2013)).
That said, it is axiomatic "that a convicted defendant has the
right to be sentenced on the basis of accurate and reliable
information, and that implicit in this right is the opportunity to
rebut the . . . evidence and the information" to be considered by
the court. United States v. Rivera-Rodríguez, 489 F.3d 48, 53
(1st Cir. 2007) (quoting United States v. Blackwell, 49 F.3d 1232,
1235 (7th Cir. 1995)). A district court's use of new information
(meaning information not already found in the district court's
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record) that is significant (meaning "materially relied on" by the
district court in determining a sentence) can be reversible error.
Id. at 54-56; see Millán-Isaac, 749 F.3d at 73; United States v.
Berzon, 941 F.2d 8, 10 (1st Cir. 1991). "Although revocations of
probation, parole, or supervised release are not considered part
of a criminal prosecution, they nevertheless entail a loss of
freedom and a deprivation of liberty" and as such include the same
due process and fairness considerations. United States v. Correa-
Torres, 326 F.3d 18, 22 (1st Cir. 2003).
We zero in on Ramos' contention that the district judge
procedurally erred by improperly relying on factual allegations
that were not in the record when he imposed the upwardly variant
sentence -- that Ramos "touched and sucked on [the victim's] left
breast and then touched and squeezed her vagina over her clothing."
Ramos posits these asseverations came from the initial charging
document filed in the Commonwealth court -- which would have been
written in Spanish -- and so represents a violation of the Jones
Act.3 The government suggests we can rule out the district judge's
reliance on the Spanish-language charging document because the
The district court's consideration and use of an
3
untranslated Spanish-language document at sentencing is a
reversible error. United States v. Reyes-Rivas, 909 F.3d 466,
469-70 (1st Cir. 2018) (citing 48 U.S.C. § 864, which provides
that "[a]ll pleadings and proceedings in the United States District
Court of the District of Puerto Rico shall be conducted in the
English language")).
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document is not in the record and the district judge did not
explicitly mention it during the sentencing hearing. The source
of the asserted details then, suggests the government, must be
from a conversation with the probation officer.
Because the source of the district judge's knowledge of
these purported facts is not revealed in the record, we cannot
conclude that the district court committed a Jones Act violation.
As the government suggests, the district judge could have learned
the alleged information from a conversation with the probation
officer. But this explanation has its own problem: As the
government admits, the district court may not rely on new facts
learned in its conversations with the probation officer that are
relevant to -- and indeed become part of -- the sentencing calculus
if not revealed beforehand. See United States v. Marrero-Pérez,
914 F.3d 20, 25 (1st Cir. 2019) ("Ex parte communication between
the probation officer and the court is usually permissible where
the court is merely seeking advice or analysis . . . and the
probation officer and the court may consult privately about certain
issues incident to criminal sentencing, [b]ut where the probation
officer discloses new facts that bear on the judge's sentencing
calculus, the general rule requires disclosure to the defense in
advance of the sentencing hearing and an opportunity to subject
the new material to whatever adversarial testing may be
appropriate." (internal quotation marks and citations omitted)).
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While the record does not identify the source of the
extra-record allegations about the incident between Ramos and the
minor child, the district judge had to learn the allegations from
somewhere and someone because he recited these purported details
on the record as facts related to the substantive conduct on which
the Commonwealth court conviction was based. Contrary to the
government's contention that the district judge's statement did
not reveal "new facts" because Ramos did not object or express
surprise about them, the averments were brand new to the record in
the revocation proceedings. The record at the time of sentencing
includes no indication that he admitted to more than attempted
lewd behavior, a category that includes misconduct far less
salacious than that described by the extra-record allegations on
which the district court relied. The motion notifying the court
of the alleged violation simply stated that local law enforcement
picked Ramos up "for an investigation on lewd acts" and that a
week later the probation officer confirmed the original version of
the facts with the agent in charge of the investigation. At the
hearing, the only indication of detail by Ramos' counsel about the
prosecution in the Commonwealth court was when he stated that the
"initial charge was reduced to an attempt which I understand from
talking to different State Public Defenders is fairly unusual.
There was one incident with a 15-year-old step daughter, touching
over her clothes." Moreover, Ramos had no notice that the district
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judge was in the loop on any of the purported details of the
initial charge against him in the Commonwealth court, information
about the investigation, or the conduct to which he ultimately
pled guilty. He therefore had no notice that the district judge
might take any allegations into account other than those contained
in documents from probation or admitted to in court when fashioning
the sentence for his violation of the condition that he would not
commit another crime during his term of supervised release.
Reciting extraneous non-record avowals without identifying the
source or providing notice to Ramos that these asserted details
would be considered in determining his sentence for the condition
at issue was a clear error.4 See Millán-Isaac, 749 F.3d at 73
(holding that when the defendant did not have notice of "extra-
record information," the district court's use of that information
to fashion the defendant's sentence amounted to a reversible
error); accord Berzon, 941 F.2d at 10 (remanding for clarification
when the defendant had not been provided notice of extra-record
factual details that the sentencing judge may have considered when
fashioning the sentence imposed).
4 Ramos' statement in his motion for reconsideration -- "the
facts of th[e Commonwealth's] conviction [as] based on Mr. Ramos'
admitted behavior of touching a fifteen-year-old female in a sexual
manner for sexual gratification" -- does not affect our conclusion
on this prong. The statement -- made after the sentencing hearing
-- simply parrots the broad offense described in the statute of
conviction. See Cordero-Rosario, 2018 WL 8798610, at *2 & n.5;
P.R. Laws Ann. Tit. 33, § 4772.
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Whether this clear error affected Ramos' substantial
rights requires deciding whether the "error was prejudicial in the
sense that 'it must have affected the outcome of the district court
proceedings.'" United States v. Gilman, 478 F.3d 440, 447 (1st
Cir. 2007) (quoting United States v. Olano, 507 U.S. 725, 734
(1993)). We conclude that the inflammatory details about Ramos'
alleged conduct affected the district judge's sentencing decision
because it is clear he did not ignore this provocative, extra-
record characterization of the incident when he imposed the 26-
month upward variance from the high end of the undisputed
guidelines range. That he articulated these specific, vivid
allegations immediately before imposing the sentence shows they
were clearly at the front of his mind and indicates he was
justifying the upward variance at least in part (if not completely)
with them. See Millán-Isaac, 749 F.3d at 73 (holding the court's
"demonstrated interest" in the extra-record information indicated
a reasonable likelihood that the "erroneous consideration" of this
information affected the court's sentencing decision). Finally,
as we have noted before, the disregard for a defendant's right to
notice of the information on which the district court will base a
sentence imposed "cannot help but have a denigrating effect on the
fairness, integrity, and public reputation of judicial
proceedings." Id. (quoting United States v. Mangone, 105 F.3d 29,
36 (1st Cir. 1997)). We therefore conclude that the district
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judge's use of the alleged facts from the Commonwealth court's
prosecution of the charge against Ramos to determine Ramos'
sentence was plain error.
CONCLUSION
Ramos' sentence is vacated and remanded.5 The Clerk of
the District Court is directed to assign this case to a different
judge on remand for prompt resentencing based on the existing
factual record. See 28 U.S.C. § 2106.
5 Ramos makes other arguments about the procedural
unreasonableness of his sentence but we need not weigh in on the
merit of those arguments because we are already remanding for
resentencing based on the extra-record allegations used by the
district court. In addition, Ramos mentions that his sentence is
substantively unreasonable but does not develop any argument on
this front so this part of his challenge is waived. See United
States v. Pérez-Vásquez, 6 F.4th 180, 204 n.18 (1st Cir. 2021),
cert. denied sub nom. Enamorado v. United States, 142 S. Ct. 1211(2022).
Ramos also briefs a second issue, arguing that the district
judge plainly erred when he imposed the following three special
conditions of supervised release: (1) prohibiting employment in
places where he could have contact with children; (2) mandating
compliance with any sex-offense-specific testing arranged by the
Probation Officer; and (3) prohibiting contact with any child under
the age of 18 unless specifically allowed by the Probation Officer.
The parties can explore these issues on remand, assuming they
remain relevant. See United States v. Torres-Meléndez, 28 F.4th
339, 340-41, 342 n.4 (1st Cir. 2022) (remanding for resentencing
because the district court abused its discretion when it considered
prior arrests not resulting in convictions to vary upward from the
guidelines, stating "[t]he parties can pursue on remand the other
issues suggested in their briefs that . . . we need not explore
today (assuming those other issues remain relevant)").
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