United States v. Cortes-Medina , 810 F.3d 62 ( 2016 )

United States Court of Appeals
For the First Circuit
No. 14-1101
UNITED STATES OF AMERICA,
Appellee,
v.
HÉCTOR CORTÉS-MEDINA,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. José Antonio Fusté, U.S. District Judge]
Before
Lynch, Selya and Lipez,
Circuit Judges.
Heather Clark, with whom Law Office of Heather Clark was on
brief, for appellant.
Francisco A. Besosa-Martínez, Assistant United States
Attorney, with whom Rosa Emilia Rodríguez-Vélez, United States
Attorney, and Nelson Pérez-Sosa, Assistant United States Attorney,
Chief, Appellate Division, were on brief, for appellee.
January 6, 2016
SELYA, Circuit Judge. In this sentencing appeal,
defendant-appellant Héctor Cortés-Medina insists that his 168-month
sentence is both procedurally flawed and substantively
unreasonable. After careful consideration, we affirm the sentence.
This appeal has its roots in an indictment returned by a
federal grand jury sitting in the District of Puerto Rico. The
indictment alleged that the defendant served as an "enforcer" for
a drug-trafficking ring and charged him as a participant in a
conspiracy to possess with intent to distribute controlled
substances within 1,000 feet of a protected location. See 21
U.S.C. §§ 841(a)(1), 846, 860.
In due course, the defendant entered into a non-binding
plea agreement (the Agreement) with the government. The Agreement
provided that, in exchange for his guilty plea to the conspiracy
charge and to a related forfeiture allegation, the government would
recommend a 121-month prison term; provided, however, that the
defendant's criminal history category (CHC) was IV or lower. The
district court accepted the plea, and the probation office prepared
a presentence investigation report (PSI Report). Neither side
objected to anything contained in the PSI Report, which (among
other things) recommended a series of guideline calculations
culminating in a total offense level of 30, a CHC of IV, and a
guideline sentencing range (GSR) of 135 to 168 months.
-2-
At the disposition hearing, the government recommended
the agreed 121-month sentence, even though that sentence was below
the nadir of the GSR. The district court heard statements from
defense counsel and the defendant himself, and the court
acknowledged the parties' joint sentencing recommendation. The
court then engaged in a dissection of the defendant's criminal
history.
To begin, the court examined the four convictions on
which the defendant's CHC was premised. It then catalogued several
arrests that had terminated either in acquittals or in dismissals.
These included two charges for first-degree murder, two charges
relating to destruction of evidence, and an assortment of charges
for drug and firearm violations.1 Noting that none of these
charges had resulted in any punishment, the district court
expressed frustration. The court said: "This is what I just don't
understand, how these things are happening." It then added,
cryptically, that "lightning doesn't strike twice in the same
place."
The district court proceeded, without objection, to
ratify and adopt the guideline calculations limned in the PSI
Report. It stressed that the defendant was an enforcer in the
drug-trafficking organization, adding "[w]e know what that means."
1
The record reflects that the probation office had sought
further information about each of these charges, but none was
forthcoming.
-3-
In the end, the court sentenced the defendant to a term of
immurement at the apex of, but within, the GSR: 168 months.
This timely appeal ensued. Although the Agreement
contains a waiver-of-appeal provision, that provision, by its
terms, is operative only if the court sentences the defendant in
accordance with the Agreement's "terms, conditions and
recommendations." Because the sentence imposed by the district
court exceeded the sentence recommended in the Agreement, the
waiver-of-appeal provision is a dead letter. See, e.g., United
States v. Fernández-Cabrera, 625 F.3d 48, 51 (1st Cir. 2010).
Overall, "[a]ppellate 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). The
"process is bifurcated: we first determine whether the sentence
imposed is procedurally reasonable and then determine whether it is
substantively reasonable." United States v. Clogston, 662 F.3d
588, 590 (1st Cir. 2011). Generally, both aspects of this review
are for abuse of discretion. See Gall v. United States, 552 U.S.
38, 46 (2007); United States v. Martin, 520 F.3d 87, 92 (1st Cir.
2008). When assessing the procedural reasonableness of a sentence,
however, appellate review is more nuanced: we afford de novo
consideration to the sentencing court's interpretation and
-4-
application of the sentencing guidelines and assay the court's
factfinding for clear error. See Flores-Machicote, 706 F.3d at 20.
These standards of review are altered when an objection
is not preserved in the court below. In that event, review is for
plain error. See United States v. Duarte, 246 F.3d 56, 60 (1st
Cir. 2001). 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." Id.
Against this backdrop, we turn to the defendant's claims
of error: three procedural objections and a plaint of substantive
unreasonableness. We address these matters sequentially.
The defendant first argues that the district court erred
by taking into account several dismissed or acquitted charges
because the facts underlying those charges were not proven by a
preponderance of the evidence. He says that he preserved this
argument by means of a statement contained in the "Background of
the Defendant" section of his sentencing memorandum:
As evidence showed in the court files, that
were examined, many of the indictments got
dismissed because of lack of proof related to
the supposed direct participation of the
defendant and in others there was no proof at
all.
During the investigations as is shown as well
in the Pre-Sentence Report the defendant has
been accused of many different illegal acts
-5-
as, for which many of these accusation [sic]
were dismissed because of insufficient
evidence.
However, no mention of the dismissed or acquitted charges was made
in the "Application of Law and Arguments" section of the
defendant's sentencing memorandum.
At the outset of the disposition hearing, the district
court confirmed with defense counsel that the defendant had no
objections to the PSI Report. During that hearing, defense counsel
did not mention the dismissed or acquitted charges at all.
Generally, a party has 14 days after receipt of a
presentence report within which to object in writing to, inter
alia, "material information" contained in that report. Fed. R.
Crim. P. 32(f)(1). A failure to object constitutes a waiver of any
objection to such information. See United States v. Serrano-
Mercado, 784 F.3d 838, 846, 847 (1st Cir. 2015); United States v.
Turbides-Leonardo, 468 F.3d 34, 37 (1st Cir. 2006). Such a waiver
occurred here.
Nor did the passing reference to the charges in the
background section of the sentencing memorandum cure this omission.
That reference, particularly when not followed up by some
corresponding reference in the argument section of the memorandum,
did nothing to call to the sentencing court's attention that the
defendant objected to any consideration of those parts of his
arrest record that had not ripened into convictions. While our
-6-
dissenting brother cavalierly proclaims that the argument made on
appeal was "implicit in [the defendant's] contentions" at
sentencing, post at 18, a finding to that effect would render
normal principles of waiver meaningless. We conclude, therefore,
that the defendant's argument is unpreserved and engenders plain
error review.
We turn to that review. The defendant bases his claim of
error on the Supreme Court's opinion in United States v. Watts, 519
U.S. 148, 157 (1997) (per curiam). In that case, the Court
concluded that, when imposing an offense-level enhancement, a
sentencing court may consider acquitted conduct only if that
conduct is proven by a preponderance of the evidence.2 See id. at
153, 157. Here, however, Watts is inapposite: the sentencing court
did not use dismissed or acquitted conduct in its sentencing
calculus. Rather, the court used the defendant's arrest record,
which was laid out in the PSI Report and not contested by the
defendant. The arrest record was, therefore, a proven fact, see
United States v. Jiménez, 512 F.3d 1, 7 (1st Cir. 2007), and thus
properly before the district court.
2
The two Seventh Circuit cases relied on by the defendant —
United States v. Short, 4 F.3d 475 (7th Cir. 1993) and United
States v. Ruffin, 997 F.2d 343 (7th Cir. 1993) — add nothing to the
defendant's argument. Though predating Watts, these cases are in
the same general posture and adumbrate the holding in Watts. See
Short, 4 F.3d at 479; Ruffin, 997 F.2d at 345.
-7-
Nor did the district court plainly err in taking into
account the prolific arrest record of the defendant — a drug-gang
enforcer — solely for the purpose of determining at what point
within the GSR the defendant's sentence should be set. As we
previously have explained, "a criminal defendant's 'history and
characteristics' are among the considerations that a court ought to
take into account at sentencing." Flores-Machicote, 706 F.3d at 21
(quoting 18 U.S.C. § 3553(a)(1)). This includes the defendant's
record of past arrests or dismissed charges, as such a record "may
indicate a pattern of unlawful behavior even in the absence of any
convictions." Id. (internal quotation marks omitted). That the
defendant had several such arrests is an important datum, for we
have distinguished a series of arrests "which might legitimately
suggest a pattern of unlawful behavior even in the absence of any
convictions" from, say, a single arrest. United States v. Lozada-
Aponte, 689 F.3d 791, 792 (1st Cir. 2012) (quoting United States v.
Zapete-Garcia, 447 F.3d 57, 61 (1st Cir. 2006) (internal quotation
marks omitted)); accord United States v. Ocasio-Cancel, 727 F.3d
85, 91-92 (1st Cir. 2013). Based on these authorities, it defies
reason to assert (as does our dissenting brother) that there was a
clear or obvious error in the district court's consideration of the
defendant's full arrest record at the final step of the sentencing
-8-
proceeding. Consequently, we find no plain error.3 Cf. United
States v. Vega-Santiago, 519 F.3d 1, 5 (1st Cir. 2008) (en banc)
("Garden variety considerations of culpability, criminal history,
likelihood of re-offense, seriousness of the crime, nature of the
conduct and so forth should not generally come as a surprise to
trial lawyers who have prepared for sentencing.").
The defendant's next claim of error posits that the
district court abused its discretion by not adequately considering
the factors set forth in 18 U.S.C. § 3553(a). Our review of this
claim is for abuse of discretion. See Gall, 552 U.S. at 51.
The defendant's claim centers on his assertion that the
district court failed to consider not only that he had already
served time for a matter incident to the offense of conviction but
also that he had been rehabilitated. But these potentially
mitigating factors were before the district court at sentencing;
indeed, they were vigorously pressed by defense counsel. There is
3
In an effort to blunt the force of this reasoning, the
defendant, post-argument, submitted a list of additional
authorities. See 1st Cir. R. 28(j). We have examined these
authorities with care and find them unpersuasive. Some are
factually distinguishable, see, e.g., United States v. Matheny, 450
F.3d 633, 642 (6th Cir. 2006) (involving a single arrest), some
find no plain error, see, e.g., United States v. Guajardo-Martínez,
635 F.3d 1056, 1062 (7th Cir. 2011), and some contain language
similar to that found in our own case, see, e.g., United States v.
Berry, 553 F.3d 273, 284 (3d Cir. 2009) (recognizing that there may
be situations in which the number of prior arrests "becomes so
overwhelming as suggestive of actual guilt that they become
exceedingly difficult to ignore"). To the extent (if at all) that
any of these cases conflict with our own case law, we are
constrained to follow First Circuit precedent.
-9-
not the slightest reason to think that the district court
overlooked them.4
No more is needed to defeat this claim of error. Even
though a sentencing court is charged with a duty to "consider all
relevant section 3553(a) factors, it need not do so mechanically."
Clogston, 662 F.3d at 592 (internal quotation marks omitted).
While the court below did not squarely address the two factors
cited by the defendant, we have warned against "read[ing] too much
into a district court's failure to respond explicitly to particular
sentencing arguments." Id. This court has not required sentencing
courts to walk, line by line, through the section 3553(a) factors.
See United States v. Dixon, 449 F.3d 194, 205 (1st Cir. 2006)
(explaining that a sentencing court need not "address [the section
3553(a)] factors, one by one, in some sort of rote incantation when
explicating its sentencing decision"). We have no occasion to
impose such a requirement today. Thus, we discern no abuse of
discretion in the sentencing court's failure to acknowledge
explicitly that it had mulled the defendant's arguments.
The defendant's last procedural claim implicates 18
U.S.C. § 3553(c). This statute provides in pertinent part that the
4
This is especially so because the sentence imposed was
within the GSR. As the Supreme Court has explained, the guideline
range itself bears a direct relation to the compendium of
considerations listed in section 3553(a) and, thus, a within-the-
range sentence "likely reflects the section 3553(a) factors." Rita
v. United States, 551 U.S. 338, 355 (2007).
-10-
court "at the time of sentencing, shall state in open court the
reasons for its imposition of the particular sentence" and, if the
GSR spans more than 24 months, shall also state "the reason for
imposing a sentence at a particular point within the range." 18
U.S.C. § 3553(c). The defendant says that the sentencing court did
not adequately comply with these strictures and that, therefore,
his sentence must be vacated.
The defendant's premise is sound: the sentencing court's
explanation of its reason for choosing a top-of-the-range sentence
of 168 months is recondite at best. But the conclusion that the
defendant seeks to draw from this premise is unfounded. The
defendant did not raise this objection below, and we have held that
a district court's failure to provide an adequate explanation of a
sentence, without more, is not sufficient to constitute plain
error. See United States v. Medina-Villegas, 700 F.3d 580, 583
(1st Cir. 2012).
Here, there is no "more": the district court's rationale
is readily apparent from the sentencing transcript. The court made
no bones about its belief that the defendant's criminal history
score underrepresented his culpability because of his pattern of
arrests and the persistent lack of follow-up with respect to the
charges that were initially preferred against him. Such items
speak directly to the character of the individual, the risk of
recidivism, and the need to protect the public from future crimes.
-11-
See United States v. Rivera Calderón, 578 F.3d 78, 104-05 (1st Cir.
2009).
Transparency at sentencing is important, and we do not
readily condone a district court's failure to comply with the
obligations imposed by section 3553(c). But neither do we condone
a defendant's failure to object in a seasonable manner and call
such an oversight to the sentencing court's attention in time to
correct it at the disposition hearing. The failure to voice a
contemporaneous objection constrains our review to plain error, and
we find no plain error here. There is simply no reason to believe
that if the district court had effected a more literal compliance
with section 3553(c), it would have handed down a milder sentence.
See Medina-Villegas, 700 F.3d at 584; United States v. Mangual-
Garcia, 505 F.3d 1, 16 (1st Cir. 2007); see also Turbides-Leonardo,
468 F.3d at 39 (explaining that an appellant hoping to prevail on
plain error review must show "a reasonable probability that, but
for the error claimed, the result of the proceeding would have been
different" (internal quotation marks and alterations omitted)).
The defendant's final claim of error embodies a
challenge, raised for the first time on appeal, to the substantive
reasonableness of his sentence. We recently have explained that,
in such circumstances, the appropriate standard of appellate review
is uncertain. See United States v. Vargas-García, 794 F.3d 162,
167 (1st Cir. 2015); United States v. Ruiz-Huertas, 792 F.3d 223,
-12-
228 (1st Cir. 2015). We need not resolve that uncertainty today:
even assuming, favorably to the defendant, that his claim of
substantive unreasonableness is reviewable for abuse of discretion,
it nonetheless fails.
We start with first principles. When evaluating the
substantive reasonableness of a sentence under the abuse of
discretion rubric, an inquiring court must take into account the
totality of the circumstances. See Martin, 520 F.3d at 92. A
principal goal of sentencing is to fashion a sentence that is
"sufficient, but not greater than necessary." United States v.
Carrasco-de-Jesús, 589 F.3d 22, 29 (1st Cir. 2009) (quoting 18
U.S.C. § 3553(a)). In determining whether a sentencing court has
achieved this goal, we assess the plausibility of the sentencing
court's rationale and the appropriateness of the sentence itself.
See id. at 30.
Challenging a sentence as substantively unreasonable is
a heavy lift. That lift grows even heavier where, as here, the
sentence falls within a properly calculated GSR. See Clogston, 662
F.3d at 592-93; see also United States v. Jiménez-Beltre, 440 F.3d
514, 518 (1st Cir. 2006) (en banc) (explaining importance of
advisory guidelines in the sentencing calculus). Indeed, a
reviewing court may apply "a presumption of reasonableness" to a
within-the-range sentence. Rita v. United States, 551 U.S. 338,
347, 351 (2007). At a bare minimum, a defendant "must adduce
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fairly powerful mitigating reasons and persuade us that the
district court was unreasonable in balancing pros and cons."
Clogston, 662 F.3d at 593 (internal quotation mark omitted).
In the case at hand, the defendant asseverates that his
sentence is substantively unreasonable on two fronts. He first
submits that he deserves a more lenient sentence because of his
rehabilitation.5 Second, he complains that he already has served
a sentence in a Puerto Rico prison for a 2004 drug crime — a crime
that he says is incident to the charged conspiracy.
The charge of substantive unreasonableness is futile.
The offense of conviction is serious: the defendant served as an
enforcer for a thriving conspiracy that sold drugs in a protected
area. The defendant's criminal history is bleak. And though his
efforts at rehabilitation are laudable, the district court is in
the best position to weigh the credibility of a claim of
rehabilitation and to balance the sentencing scales in light of
such a claim. See Gall, 552 U.S. at 51-52.
So, too, the defendant's suggestion that the sentence
imposed punishes him twice for the same criminal conduct is
unavailing. In support, the defendant relies on a guideline
provision, USSG §5K2.23. That provision, however, states that a
5
In support, he notes that he has finished his high-school
degree, completed various workshops, maintained a record of steady
employment, and secured a promise of re-employment upon release
from incarceration.
-14-
downward departure may be warranted if the defendant has completed
a term of imprisonment for a crime incident to the offense of
conviction and that crime "was the basis for an increase in the
offense level for the instant offense." United States v. Kornegay,
410 F.3d 89, 99 (1st Cir. 2005) (emphasis omitted). Here, however,
the Puerto Rico drug-trafficking conviction identified by the
defendant was not assigned any criminal history points in the
calculation of his CHC. Thus, that conviction did not serve to
increase his offense level, and section 5K2.23 does not apply.
To say more would be to paint the lily. Here, the
sentencing court offered a plausible rationale for the sentence
imposed, and that within-the-range sentence represents a defensible
outcome. Having in mind the totality of the circumstances, we
conclude that the district court did not abuse its considerable
discretion in sentencing the defendant at the top of — but within
— the GSR. In other words, the sentence was sufficient but not
greater than necessary to achieve the legitimate goals of
sentencing.
The fact that the parties jointly agreed to recommend a
lower (downwardly variant) sentence does not alter this conclusion.
In the absence of exceptional circumstances (such as the
applicability of a statutory mandatory minimum sentence), the
starting point for a court's sentencing determination is the
guideline range, not the parties' recommendations. Thus, we have
-15-
consistently refused to accord any decretory significance to such
non-binding recommendations — or even to require a sentencing court
to explain why it decided to eschew those recommendations. See
Vargas-García, 794 F.3d at 167; United States v. Vega-Salgado, 769
F.3d 100, 104 (1st Cir. 2014). See Carrasco-de-Jesús, 589 F.3d at
29.
We need go no further.6 For the reasons elucidated
above, the sentence is
Affirmed.
— Dissenting Opinion Follows —
6
Much of what our dissenting brother has written has no
bearing on the issues that are fairly presented by this appeal.
For prudential reasons, we elect not to respond to these extraneous
comments.
-16-
LIPEZ, Circuit Judge, dissenting. My colleagues treat
defendant Cortés-Medina's dismissed and acquitted charges as if
they have significance separate and apart from the conduct that
they may, or may not, reflect. Hence, they find no error in the
district court's reliance on the defendant's arrest record to
justify a sentence at the top of the guidelines range -- a term of
imprisonment nearly four years longer than the sentence recommended
by the government -- despite the absence of any evidence about the
conduct underlying those ultimately unproven charges. Neither
Supreme Court precedent nor our own cases support treating as fact
mere allegations of criminal behavior that are not substantiated by
at least a preponderance of the evidence. Indeed, the cases make
clear that, where the evidence of culpability does not meet that
level of reliability, the district court errs by factoring unproven
charges into the sentence. Accordingly, Cortés-Medina is entitled
to a resentencing in which the unsubstantiated charges play no
role.
I. Standard of Review
My colleagues apply the plain error standard of review
because Cortés-Medina did not object to the portion of his
presentence investigation report ("PSR") listing charges against
him that either were dismissed or resulted in acquittal.7 I
7
The reference here to "dismissed" charges also encompasses
references by the district court and the majority to arrests that
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disagree that Cortés-Medina's challenge to the court's use of these
unsubstantiated charges was unpreserved. Certainly, Cortés-Medina
was not required to object to the inclusion of these charges in his
PSR, as he has not argued that the arrests and subsequent
proceedings did not occur. He did, however, point out in his
sentencing memorandum the flimsy foundation for many of the
charges.8 Referring to his multiple indictments in state court, he
noted that "many of the indictments got dismissed because of lack
of proof related to the supposed direct participation of the
defendant and in others there [was] no proof at all." He further
stated that "many of these accusation[s] were dismissed because of
insufficient evidence." Although Cortés-Medina did not repeat his
objection in the argument section of his memorandum, or explicitly
assert that the court should not take his dismissed and acquitted
charges into account, that objection and assertion are implicit in
his contentions that the charges lack support.9
may not have led to formal charges.
8
In addition to four prior convictions, Cortés-Medina's PSR
lists one acquittal and multiple arrests for charges that were
subsequently dismissed.
9
Cortés-Medina did not object to use of his unsubstantiated
criminal history after sentence was imposed, but the obligation to
reiterate an argument at that point is uncertain. See United
States v. Gallant, 306 F.3d 1181, 1189 (1st Cir. 2002)("[T]here is
no Federal Rule of Criminal Procedure giving advance notice to
counsel of a requirement to make post-sentence objections.").
Indeed, we have recognized the risk that a defendant might irritate
the district court by resuming argument after the sentence is
imposed. Id. at 1188-89 (observing that "few trial judges would
-18-
warm to a rule which requires continued argument after the court
gives its sentence").
To eliminate that risk -- and thereby diminish uncertainty on
appeal concerning the appropriate standard of review -- I urge our
court to follow the lead of other circuits and adopt a prophylactic
rule requiring sentencing judges to expressly ask the parties for
objections after the sentence is announced.
The Sixth Circuit, for example, has adopted such a rule
pursuant to its supervisory power over district courts within its
jurisdiction. The rule directs sentencing judges,
after pronouncing the defendant's sentence but
before adjourning the sentencing hearing, to
ask the parties whether they have any
objections to the sentence just pronounced
that have not previously been raised. If the
district court fails to provide the parties
with this opportunity, they will not have
forfeited their objections and thus will not
be required to demonstrate plain error on
appeal. . . . Providing a final opportunity
for objections after the pronouncement of
sentence, "will serve the dual purpose[s] of
permitting the district court to correct on
the spot any error it may have made and of
guiding appellate review."
United States v. Bostic, 371 F.3d 865, 872 (6th Cir. 2004)
(footnote omitted) (quoting United States v. Jones, 899 F.2d 1097,
1102 (11th Cir. 1990), overruled on other grounds by United States
v. Morrill, 984 F.2d 1136 (1993)). The Sixth Circuit's rule is
itself derived from a similar requirement in the Eleventh Circuit.
See Jones, 899 F.2d at 1102 (instructing district courts "to elicit
fully articulated objections, following imposition of sentence, to
the court's ultimate findings of fact and conclusions of law"); id.
at 1102-03 (stating that "[c]lear articulation" from defense
counsel will "tell the appellate court precisely which objections
have been preserved and which have been waived, and enable the
appellate court to apply the proper standard of review to those
preserved").
The value of such a rule is illustrated by this case, where
the requirement would have avoided, or at least minimized, the
confusing jumble of standards deemed applicable by the majority:
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Moreover, even if plain error review applies, Cortés-
Medina would satisfy its requirements.10 As I explain below, a
sentencing judge may not properly rely on dismissed and acquitted
charges to increase a defendant's sentence without determining, by
a preponderance of the evidence, that the charges reflect culpable
conduct. Absent record support for treating the unproven charges
as sufficiently well founded to meet that modest standard, a
court's use of them to justify a higher sentence is error that must
be characterized as plain.11 Here, the district court invoked such
charges when selecting the high end of the applicable Guidelines
range, despite the Probation Office's inability to explain the
underlying conduct or give reasons for the dismissals. The error
(1) plain error for the claim that the district court improperly
considered acquitted and dismissed charges; (2) abuse of discretion
for the claim that the court failed to adequately consider the
factors set forth in 18 U.S.C. § 3553(a); (3) plain error for the
claim that the court failed to provide an adequate explanation of
the chosen term of imprisonment; and (4) an uncertain standard of
review for the defendant's challenge to the substantive
reasonableness of his sentence (leading the majority to apply abuse
of discretion).
10
The four elements of the plain error test are: (1) an error
that was (2) clear or obvious, which both (3) affected the
defendant's substantial rights and (4) "seriously impaired the
fairness, integrity, or public reputation of judicial proceedings."
United States v. Ramos-González, 775 F.3d 483, 499 (1st Cir. 2015)
(quoting United States v. Ramos-Mejía, 721 F.3d 12, 14 (1st Cir.
2013)).
11
The majority asserts that "it defies reason" to conclude
that there was a clear or obvious error here. That assertion is
belied, however, by well-established Supreme Court and First
Circuit precedent, described below, precluding reliance on a bare
arrest record.
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was thus manifestly prejudicial. As for the miscarriage-of-justice
prong, we previously have recognized that "the difference in
potential jail time would be a concern in any balance." United
States v. Ramos-González, 775 F.3d 483, 507 (1st Cir. 2015)
(quoting United States v. Torres-Rosario, 658 F.3d 110, 117 (1st
Cir. 2011)).
Accordingly, under either standard of review, Cortés-
Medina prevails on his claim of procedural error.
II. The Standard of Reliability
This should be an easy case for concluding that a remand
is necessary because, as the majority acknowledges, the Probation
Office was unable to obtain information about the conduct
underlying the unproven or acquitted charges reported in Cortés-
Medina's PSR. The district court thus had no evidence that those
charges in fact reflected criminal behavior. As the majority
reports, the court nonetheless chose a sentence based, in part, on
Cortés-Medina's "pattern of arrests and persistent lack of follow-
up with respect to the charges that were initially preferred
against him." My colleagues have no problem with that rationale,
quoting language from one of our precedents stating that a record
of arrests or dismissed charges "may indicate 'a pattern of
unlawful behavior even in the absence of convictions.'" United
States v. Flores-Machicote, 706 F.3d 16, 21 (1st Cir. 2013)
(quoting United States v. Lozada-Aponte, 689 F.3d 791, 792 (1st
-21-
Cir. 2012)). They maintain that, because Cortés-Medina has not
contested his arrest record, "[t]he arrest record was . . . a
proven fact, and thus properly before the district court."
(Citation omitted.)
I agree with the general proposition that past criminal
acts that did not result in conviction may be given weight in
sentencing determinations if the available proof of those criminal
acts meets some standard of reliability. I do not understand my
colleagues to disagree with that proposition. Nevertheless, when
the defendant's criminal history contains a series of dismissed or
acquitted charges, my colleagues hold that a district court may
accord that pattern of alleged criminal activity probative weight
based solely on the arrests, even if the court has no facts
substantiating the conduct underlying the alleged charges.
The majority is wrong. Sentencing based on unexamined
allegations of criminal behavior is not permitted by our own or
Supreme Court precedent. In articulating their view, my colleagues
summarily dismiss as inapposite the Supreme Court's decision in
United States v. Watts, 519 U.S. 148 (1997) (per curiam). There,
the Court held that a sentencing court may consider acquitted
conduct to impose an offense-level enhancement as long as that
conduct is proven by a preponderance of the evidence. Id. at 157.
The majority insists that Watts is inapplicable because the
district court in this case relied on Cortés-Medina's pattern of
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dismissed or acquitted charges, not his conduct. And, they say,
because Cortés-Medina's record of past charges was "a proven fact,"
no error occurred.12
This attempt to distinguish Watts is misguided. A series
of arrests or past charges is inseparable from the underlying
conduct. Watts refers to the defendant's conduct because that is
the pertinent information in assessing whether the defendant's past
criminal activity is understated by reference to his convictions
alone. The relevant question cannot be whether the defendant's
non-conviction arrests and prosecutions are reported accurately --
in all likelihood, the PSR will contain an accurate record of
detentions and charges -- but whether the defendant in fact
committed the listed offenses notwithstanding the absence of
convictions for those crimes. Indeed, the defendant's conduct must
be the focus because, where the charges initially filed against him
did not bear fruit, they do not demonstrate culpability. A
sentencing court cannot simply presume that the lack of convictions
is attributable to flawed or lax prosecutorial or judicial systems
rather than the defendant's innocence. Sometimes, systemic flaws
lead to arrests without justification. See United States v.
Zapete-Garcia, 447 F.3d 57, 61 (1st Cir. 2006) (noting that "arrest
12
The majority frames its holding as an absence of plain
error, but its reasoning rejects any error at all.
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'happens to the innocent as well as the guilty'" (quoting Michelson
v. United States, 335 U.S. 469, 482 (1948))).
The next question, then, is what standard of reliability
applies to the inquiry into the conduct underlying unproven
charges. As I explain below, the answer is unequivocally provided
by both Supreme Court and First Circuit caselaw.
A. The Teaching of Watts
The Supreme Court's decision in Watts confirms that a
sentencing court may not give weight to unproven crimes -- whether
uncharged, dismissed, or acquitted -- unless the court finds by at
least a preponderance of the evidence that the conduct underlying
those charges occurred. In Watts, the Court rejected an argument
that principles of due process foreclose reliance on acquitted
conduct to calculate the Guidelines range, stating that "a jury's
verdict of acquittal does not prevent the sentencing court from
considering conduct underlying the acquitted charge, so long as
that conduct has been proved by a preponderance of the evidence."
519 U.S. at 157 (emphasis added). By including this qualification,
the Court reaffirmed its prior holding that "application of the
preponderance standard at sentencing generally satisfies due
process." Id. at 156 (citing McMillan v. Pennsylvania, 477 U.S.
79, 91-92 (1986)).
Although the focus in Watts was on the use of acquitted
conduct to set the Guidelines range, the Court did not suggest that
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a standard less demanding than preponderance-of-the-evidence
applies to the use of acquitted conduct -- or any other unproven
criminal activity -- in choosing a sentence within the range.13
To the contrary, multiple statements in the Watts opinions reflect
an assumption that any facts used in sentencing -- pertaining to
allegations of past criminal conduct, or otherwise -- must be
proven by a preponderance of the evidence or an even higher
standard of reliability. First, the Court quotes commentary from
Guidelines § 6A1.3 stating that "it is 'appropriate' that facts
relevant to sentencing be proved by a preponderance of the
evidence," 519 U.S. at 156, and the majority goes on to make the
observation quoted above linking the preponderance standard with
the requirements of due process. Id.14 In addition, as described
13
Notably, the issue debated by the majority and dissent in
Watts was not whether a lesser standard should apply, but whether
acquitted conduct should be a factor at all in calculating the
Guidelines range. In his dissent, Justice Stevens conceded that
the Guidelines permit the use of acquitted conduct in selecting the
particular sentence within a range, but argued that acquitted
conduct should be entirely excluded from consideration in setting
the range. See 519 U.S. at 162, 166 (Stevens, J., dissenting).
14
Section 6A1.3(a) of the Guidelines states, in part:
In resolving any dispute concerning a factor
important to the sentencing determination, the
court may consider relevant information
without regard to its admissibility under the
rules of evidence applicable at trial,
provided that the information has sufficient
indicia of reliability to support its probable
accuracy.
The commentary invoked by the Court states: "The Commission
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above, the Court framed its holding in Watts broadly, without any
suggestion that the preponderance standard applies only for the
purpose of selecting the Guidelines range: a sentencing court is
permitted, in general, to consider "conduct underlying the
acquitted charge, so long as that conduct has been proved by a
preponderance of the evidence." Id. at 157.
Second, Justice Scalia points out that the preponderance of
the evidence standard -- the measure of reliability the Court has
endorsed for other sentencing facts -- is also consistent with due
process for conduct underlying an acquittal. He asserts that
neither the Sentencing Commission nor the courts may entirely
exclude from the sentencing calculus "information which would
otherwise justify enhancement of sentence or upward departure," or
impose "some higher standard of probative worth than the
Constitution and laws require," simply because that information
"pertains to acquitted conduct." See id. at 158 (Scalia, J.,
concurring).15
Third, and consistently, the Watts Court acknowledged the
possibility that, in some circumstances, the more demanding clear-
believes that use of a preponderance of the evidence standard is
appropriate to meet due process requirements and policy concerns in
resolving disputes regarding application of the guidelines to the
facts of a case." See 519 U.S. at 156 (citing § 6A1.3 cmt.).
15
Although Justice Scalia does not refer expressly to the
preponderance standard, he implicitly accepts the lead opinion's
affirmation of McMillan and the Court's long-held view that
preponderance of the evidence is the constitutional baseline.
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and-convincing evidence standard might be appropriate. Id. at 156-
57. In a lengthy footnote citing cases reflecting "a divergence of
opinion among the Circuits," id. at 156, the Court quotes an Eighth
Circuit case characterizing the Supreme Court's McMillan decision
as approving the preponderance standard only "'for garden variety
sentencing determinations,'" id. at 156 n.2 (quoting United States
v. Townley, 929 F.2d 365, 369 (8th Cir. 1991)). In other words,
the Court in Watts considered the possibility that, at times, an
assessment more reliable than the preponderance standard might be
applicable to sentencing facts. Neither the Court nor the circuits
it quoted in Watts contemplated the possibility of proof less
reliable than preponderance of the evidence. This view that Watts
reaffirms preponderance of the evidence as the minimum standard of
reliability is also reflected in academic literature. See, e.g.,
Claire McKusker Murray, Hard Cases Make Good Law: The Intellectual
History of Prior Acquittal Sentencing, 84 St. John's L. Rev. 1415,
1468 (2010) ("Under Watts, prior acquittal sentencing is permitted
but not mandated, and a hard floor of reliability is established in
the form of the requirement that prior acquitted conduct be proved
to a preponderance of the evidence.").
B. First Circuit Law
The preponderance-of-the-evidence baseline for
considering sentencing facts is also well established in our
circuit. Indeed, we have applied the standard in this very
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context, i.e., to the choice of sentence within the Guidelines
range where the court sought to rely on unproven criminal conduct.
See United States v. Lombard, 102 F.3d 1, 4 (1st Cir. 1996) ("[T]he
district court may . . . choose to give weight to the uncharged
offenses in fixing the sentence within the statutory range if it
finds by a preponderance of evidence that they occurred . . . .");
see also United States v. Munyenyezi, 781 F.3d 532, 544 (1st Cir.
2015) ("[A] judge can find facts for sentencing purposes by a
preponderance of the evidence, so long as those facts do not affect
either the statutory minimum or the statutory maximum . . . ."
(citations omitted)); United States v. Fermin, 771 F.3d 71, 82 (1st
Cir. 2014) ("While the jury must, of course, find facts beyond a
reasonable doubt, a preponderance-of-the-evidence standard applies
to the sentencing court's factual findings."); United States v.
Gobbi, 471 F.3d 302, 314 (1st Cir. 2006) (stating that "acquitted
conduct, if proved by a preponderance of the evidence, still may
form the basis for a sentencing enhancement").
I recognize that, although this standard of reliability
is well established, we have not always used the words
"preponderance of the evidence" when considering a district court's
reliance on charges that did not lead to conviction. See, e.g.,
Flores-Machicote, 706 F.3d 16; Lozada-Aponte, 689 F.3d at 792;
Zapete-Garcia, 447 F.3d at 61. Nonetheless, we have applied that
standard even when we have not referred to it by "name," routinely
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scrutinizing the facts underlying the unproven criminal charges to
ensure the necessary degree of reliability. See, e.g., United
States v. Hinkley, 803 F.3d 85, 93 (1st Cir. 2015) (upholding
court's reliance on reports of inappropriate sexual contact with
minors where district court "found that it was reasonable to rely
on the experience of the detective who prepared the police reports"
and where "certain details reported by [a victim] made the reports
'almost self-authenticating'"); United States v. Díaz-Arroyo, 797
F.3d 125, 127, 130 n.3 (1st Cir. 2015) (noting prosecutor's
explanation that charges for murder and attempted murder were
dropped "only after the sole surviving witness to the incident (a
minor who was able positively to identify the defendant as the
shooter) was threatened and fled the jurisdiction," and that
defense counsel "did not directly challenge the prosecutor's
account of the circumstances surrounding the dismissal of the
charges"); Flores-Machicote, 706 F.3d at 21 (noting that the
district court "went to considerable lengths to walk through the
defendant's prior interactions with the law . . . [and] explained,
in some detail, why [it] believed the outcome of these interactions
underrepresented the seriousness of the defendant's past criminal
conduct"); United States v. Gallardo-Ortiz, 666 F.3d 808, 814-15
(1st Cir. 2012) (noting that the district court took into account,
inter alia, that numerous charges were dismissed on speedy trial
grounds (i.e., not the merits), and rejecting defendant's
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contention that the court relied on "the dismissed charges when
concluding that he displayed a violent character"); United States
v. Tabares, 951 F.2d 405, 411 (1st Cir. 1991) (noting that some
charges were dismissed "not because of any finding on the merits of
the case," but because the defendant was deported, and that
defendant did not "deny the facts, as set forth in the presentence
report, upon which these charges rested").
C. Applying the Standard
Despite the precedent described above, my colleagues
accept a bare list of past arrests and charges as sufficiently
reliable evidence that the defendant did, in fact, commit the
crimes for which he was charged but not convicted. They claim that
ample precedent in our circuit recognizes that a series of arrests
-- as distinguished from a single arrest -- "might legitimately
suggest a pattern of unlawful behavior even in the absence of any
convictions." Lozada-Aponte, 689 F.3d at 792 (quoting Zapete-
Garcia, 447 F.3d at 61). They assert that Cortés-Medina's "pattern
of arrests" and the "lack of follow-up" with respect to the charges
filed against him "speak directly to the character of the
individual, the risk of recidivism, and the need to protect the
public from future crimes."
Yet, even where a defendant's record contains a multitude
of allegations of criminal conduct, the district court -- and we in
turn -- must be certain that a preponderance of the evidence
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supports a conclusion that the allegations have merit. See
Gallardo-Ortiz, 666 F.3d at 815 ("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."); Zapete-Garcia, 447 F.3d at 61 (noting a
guideline policy statement that "highlight[s] the important
distinction between direct evidence of past criminal behavior and
mere arrests that may or may not have been the result of
wrongdoing"). Here, the district court had no evidence concerning
the conduct underlying the various charges against Cortés-Medina
that ultimately were dismissed or resulted in acquittal. At the
sentencing hearing, after listing those charges and noting the
absence of explanation for the dismissals, the district court
merely voiced its "firm belie[f] that lightning doesn't strike
twice in the same place."
Presumably, the court meant to offer a different metaphor
-- "where there's smoke, there's fire" -- to say that the unproven
charges had substance because Cortés-Medina had other, similar
criminal convictions and also admitted participating in the drug
conspiracy charged in this case. When additional years of
incarceration are in the balance, however, due process requires
more than metaphors. The fire that the district court infers --
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past criminal conduct -- must be based on a preponderance of the
evidence.
The cases cited by the majority to support the use of a
series of arrests as a proxy for culpability do not hold otherwise.
As described above, the panel in Flores-Machicote noted the
district court's careful examination of the defendant's prior
interactions with the law. 706 F.3d at 21. In Zapete-Garcia, the
panel rejected reliance on a single arrest that occurred more than
a decade earlier. 447 F.3d at 60-61. In the remaining two cases,
where the court gave cursory attention to the district court's
reliance on a series of past arrests, it is nonetheless evident
that the district courts had been presented with facts about the
underlying conduct. See United States v. Ocasio-Cancel, 727 F.3d
85, 91-92 (1st Cir. 2013) (indicating that the defendant's PSR
contained detail on the events giving rise to the dismissed charges
and noting that the defendant did not object to "any aspect" of the
discussion); Lozada-Aponte, 689 F.3d at 792 (referring to "Lozada's
frequent run-ins with law enforcement in Florida, Illinois, and
Puerto Rico, some of which apparently involved firearms"). I do
not dispute that the district court may rely on a PSR's depiction
of the circumstances that led to the dismissed charges as
sufficiently reliable evidence of the conduct to meet the
preponderance of the evidence standard, particularly in the absence
of any objection.
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No such evidentiary support exists here. Cortés-Medina's
PSR contains an unelaborated list of his dismissed and acquitted
charges, with notations stating that "Court documents were
requested but have not been received." The PSR states that some of
the charges were dismissed for lack of probable cause, while others
are simply described as "dismissed." The district court thus
relied improperly on those charges to sentence Cortés-Medina to a
longer term of imprisonment than it otherwise would have imposed.
III. Conclusion
A district court may not rely on a defendant's unproven
past criminal activity to increase his sentence for a later crime
unless the court determines, by a preponderance of the evidence,
the prior criminal conduct in fact occurred. This requirement
applies equally to a single instance of prior criminal activity and
to a series of alleged crimes. Invocation of a pattern does not
eliminate the need to examine each unproven criminal charge under
the preponderance of the evidence standard.
In this case, the majority concedes that no factual
support was offered to substantiate the charges on which the
district court relied. The Probation Office has also acknowledged
that it tried, but failed, to obtain the supporting information.
Hence, on this record, defendant Cortés-Medina is entitled to
resentencing without reliance on the dismissed and acquitted
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charges. I therefore respectfully dissent from my colleagues'
conclusion to the contrary.
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