United States v. Serrano-Berrios ( 2022 )

United States Court of Appeals
For the First Circuit
No. 21-1457
UNITED STATES OF AMERICA,
Appellee,
v.
FÉLIX A. SERRANO-BERRÍOS,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Francisco A. Besosa, U.S. District Judge]
Before
Barron, Chief Judge,
Thompson and Kayatta, Circuit Judges.
Héctor Sueiro-Álvarez, with whom Eric Alexander Vos, Federal
Public Defender, and Franco L. Pérez-Redondo were on brief, for
appellant.
Kevin Barber, U.S. Department of Justice, Criminal Division,
Appellate Section, with whom W. Stephen Muldrow, United States
Attorney, Mariana E. Bauzá-Almonte, Assistant United States
Attorney, Appellate Chief, Kenneth A. Polite, Jr., Assistant
Attorney General, and Lisa H. Miller, Deputy Assistant Attorney
General, were on brief, for appellee.
June 27, 2022
KAYATTA, Circuit Judge. Félix Serrano-Berríos was
sentenced to the statutory maximum of two years' imprisonment for
violating two conditions of his supervised release. In percentage
terms, this sentence greatly exceeded the applicable guidelines
sentencing range of eight to fourteen months. It appears from the
district court's cryptic explanation for its upward variance that
the court may have relied on a misapprehension of the record and/or
used unsubstantiated information from outside the record. We
therefore vacate the sentence and remand for expedited
resentencing by a district court judge unburdened by any
misapprehension concerning the relevant facts.
I.
In 2014, Serrano was convicted of carjacking and (after
a remand) sentenced to ninety-two months' imprisonment, with three
years' supervised release to follow. He was released from prison
on November 15, 2019 and commenced his period of supervision. In
December 2020 (with a supplement filed in February 2021),
probation moved to revoke Serrano's supervised release because, it
alleged, he had violated the following five conditions of that
release:
• Mandatory Condition No. 1 -- "You must not commit
another federal, state or local crime."
• Mandatory Condition No. 3 -- "You must refrain from any
unlawful use of controlled substance[s]. . . ."
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• Special Condition No. 7 -- "The defendant shall
participate in an approved inpatient or outpatient
mental health Treatment program . . . ."
• Standard Condition No. 9 -- "If you are arrested or
questioned by a law enforcement officer, you must notify
the probation officer within 72 hours."
• Special Condition No. 10 -- "The defendant shall
participate in an approved substance abuse treatment
program arrange[d] and approved by the U.S. probation
officer until duly discharged . . . ."
When probation moves to revoke supervised release, "a
magistrate judge must promptly conduct a hearing to determine
whether there is probable cause to believe that a violation
occurred." Fed. R. Crim. P. 32.1(b)(1)(A). If there is no
probable cause, the proceeding must be dismissed. Id.
32.1(b)(1)(C). If probable cause exists, a district court will
hold a revocation hearing, at which the government must prove a
violation by the preponderance of the evidence. Id.; United States
v. Whalen, 82 F.3d 528, 531–32 (1st Cir. 1996).
A.
At his probable cause hearing before the magistrate
judge, Serrano admitted to violating condition 3: Over a twelve-
month period, he tested positive for cocaine twice and (as he
reported to his probation officer) relapsed four other times. He
also admitted that he violated condition 9: He did not report to
his probation officer within 72 hours of an interview that he had
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with local police while he was hospitalized with gunshot wounds.
Otherwise, Serrano contested the alleged violations.
To establish that he violated condition 1 by committing
another crime, probation pointed to a December 2020 arrest in which
Serrano was charged in Commonwealth court in connection with an
alleged domestic-violence incident. However, the government's
witness at Serrano's probable cause hearing testified that those
charges were dropped because the alleged victim declined to pursue
them. Serrano argued that mere charges, without more, cannot
support a finding of probable cause that he committed the
underlying crime. The magistrate judge agreed. Thus, the charge
that Serrano violated this condition was dismissed.
To establish that Serrano violated conditions 7 and 10,
probation pointed to the admitted facts that Serrano over the
course of a year missed seven treatment appointments and relapsed
six times. Serrano responded that none of those facts established
that he failed to participate in the programs as required. The
magistrate judge again agreed, concluding that Serrano "did
participate in both an inpatient and outpatient" treatment program
and that "it was a fluid type of an arrangement together with his
Probation Officer and together they came up with a better program
that was the intensive outpatient treatment." The magistrate judge
therefore found probable cause only with regard to the admitted
violation of conditions 3 and 9.
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B.
Serrano's supervised-release violations are classified
at the lowest level, referred to by the U.S. Sentencing Guidelines
as "Grade C," U.S.S.G. § 7B1.1(a), thus his Guidelines sentencing
range was well below the two-year statutory maximum. The
Guidelines provided a range of 8–14 months. At the revocation
hearing before the district court, the government argued that
Serrano should receive twelve months' imprisonment (two below the
top of the Guidelines range) because of his repeated cocaine use.
Serrano asked for four months to be followed by six months of home
detention. He conceded that revocation was appropriate in this
case.
In its initial colloquy, the government also mentioned
"the violation . . . regarding, if you are arrested or questioned
by a law enforcement officer, you must notify the probation office
within 72 hours," but it did not elaborate. Although there was no
allegation that Serrano failed to inform his probation officer of
his arrest, when the judge asked to what arrest the government was
referring, the government launched into a description of the
dropped domestic-violence charges. When the government stated
that they were "dismissed because [Serrano's] partner has . . .
withdrawn that claim," the court responded, "Well, that's not the
way I understand it. I think the claim was dismissed under the
Puerto Rico Speedy Trial Act." Immediately, the government changed
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its tune and responded, "That is our understanding as well."
Nothing in the record supported this supposition. Indeed, the
witness testimony at the probable cause hearing revealed
otherwise. The district court nevertheless went on to question
why the magistrate judge found no probable cause for the fact that
Serrano committed a state crime. Serrano's counsel protested that
that incident was not before the court and that the violation
related to not informing probation about an encounter with the
police was actually about Serrano's entirely unrelated interview
regarding his gunshot injuries. The government conceded that this
was true.
The district court then proceeded with sentencing. In
explaining its rationale, the court cited the Guidelines
sentencing range (8–14 months) and "the factors set forth in . . .
section 3553(a)." In upwardly varying to issue the maximum
statutory sentence -- two years, or 10 months over the top of
Serrano's range -- the court stated as follows:
Mr. Serrano has shown that he is unable to
comply with the law or the conditions of
supervised release imposed on him by the Court
by continuously using illegal substances and
by not notifying contact with a law
enforcement officer within 72 hours.
Mr. Serrano has been provided with the
necessary tools and interventions to become a
pro-social and law-abiding citizen. He was
referred to outpatient and inpatient treatment
for his dual disorder, substance abuse and
mental health, at Caribbean Therapeutic and
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Educational Group and Guara Bi inpatient
treatment. But despite many efforts to assist
him, he continues to incur in violations of
his conditions of supervised release.
He tested positive to more than two or
admitted to the use of controlled substances
more than five times within a year's time.
The probation officer has extinguished a
release source, including outpatient and
inpatient treatment, drug testing, and
cognitive behavioral interventions.
To reflect the seriousness of the offense,
promote respect for the law, provide just
punishment for Mr. Serrano's offense, afford
adequate deterrence, and to protect the public
from further crimes by Mr. Serrano, the Court
concludes that a statutory sentence is a
sentence sufficient but not greater than
necessary to comply with the purposes set
forth in Title 18, United States Code
section 3553(a).
Serrano's counsel objected to the sentence as
"procedurally and substantively unreasonable." He objected to the
court's prior referral to the dropped state-court charges, and he
noted that Serrano did engage in treatment (as found by the
magistrate judge). In response, the court listed four dates on
which Serrano had missed treatment. When Serrano's counsel
objected that any claim that he failed to comply with the treatment
conditions was unsupported by probable cause (as found by the
magistrate judge), the court chastised: "You brought it up. You
brought it up. I didn't mention it in my original wording, but
you brought it up."
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C.
On appeal, Serrano contends that that the district court
improperly relied on two alleged violations that the magistrate
judge found were not supported by probable cause, that the court
did not adequately explain its upward variance, and that the
sentence is otherwise substantively unreasonable.
II.
When a district court varies upward from the Guidelines
range, our precedent requires it to "justify th[at] upward
variance." United States v. Del Valle-Rodríguez, 761 F.3d 171,
176 (1st Cir. 2014) (citing United States v. Flores-Machicote, 706
F.3d 16, 21 (1st Cir. 2013)). To do so here, the district court
needed to "articulate[] why it believed [Serrano's] case differed
from the norm," id. at 177, or, in other words, "the mine-run of
[Grade C revocation] cases," United States v. Rivera-Berríos, 968
F.3d 130, 136 (1st Cir. 2020). And "the greater a deviation from
the GSR, the more compelling the sentencing court's justification
must be." Del Valle-Rodríguez, 761 F.3d at 177.1
1 The government contends that Serrano failed to object to
the adequacy of the sentencing rationale, such that we may only
review the rationale for plain error. We disagree. Serrano's
counsel objected to the court's consideration of both the state-
court charges and his treatment-program record. Subsumed within
those objections is the clearly implicit charge that the district
court's explanation rested on improper considerations. See
Rivera-Berríos, 968 F.3d at 134 ("To preserve a claim of procedural
sentencing error for appellate review, a defendant's objection
need not be framed with exquisite precision."). We accordingly
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There are two aspects of the sentencing court's
rationale that concern us. First, it is unclear what the court
meant by "[t]he probation officer has extinguished a release
source, including outpatient and inpatient treatment, drug
testing, and cognitive behavioral interventions." One
straightforward reading is that probation had eliminated treatment
as an option for Serrano to use if released. Such a reading, if
intended, would be problematic because probation never so stated.
Another -- less straightforward but nevertheless plausible --
interpretation is that, due to Serrano's admitted relapses, the
district court itself had lost faith in his ability to succeed at
staying clean. That second explanation may or may not be enough
to justify an upward variance (query whether six relapses over the
course of a year by a person addicted to drugs is outside the
"mine-run case" of defendants at a revocation hearing for using
illegal substances,2 a specific finding the district court did not
review the district court's justification for varying upward under
the familiar abuse-of-discretion standard.
2 The Administrative Office of the U.S. Courts' Probation
and Pretrial Services Office recently found that "cases in which
supervision was revoked averaged 10 [technical] violations," i.e.,
violations of the terms of release that did not involve committing
new crimes (like those here), "while cases without revocations
averaged six [such] violations." AO, Revocations for Failure to
Comply with Supervision Conditions and Sentencing Outcomes
(June 14, 2022). And, of those defendants whose supervision was
revoked, 60% received incarceration terms of six months or less;
only 15% were incarcerated for more than a year. Id.
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make). But we need not decide whether such an explanation would
be sufficient. Rather, we find ourselves unwilling to rely on
such a strained reading of the court's comments to justify an
upward variance.
We are also concerned by the district court's sua sponte
reference to Serrano's arrest record -- repeated in the court's
written judgment -- and by the court's view of the state-court
proceeding. There is nothing in the record to suggest that the
charges were dropped merely because of a technical speedy-trial
violation. Indeed, the government's own witness testified that
the state charges were dropped because the alleged victim refused
to testify. The magistrate judge concluded that there was no
probable cause to support a conclusion that Serrano committed a
state crime, so that alleged violation was dismissed and was not
properly before the district court. See Fed. R. Crim.
P. 32.1(b)(1)(A), (C).3
3 To the extent the district court relied on the mere fact
that state-court charges were lodged to vary upward, that was error
because a criminal complaint, "by itself, . . . lacks sufficient
indicia of reliability to support a finding that the
defendant . . . committed the charged conduct." United States v.
Castillo-Torres, 8 F.4th 68, 71–72 (1st Cir. 2021); see also United
States v. Dávila-Bonilla, 968 F.3d 1, 9 (1st Cir. 2020) (cautioning
"judges and lawyers alike against relying on mere charges to infer
unlawful behavior unless there is proof by a preponderance of the
evidence of the conduct initiating those arrests and charges"
(cleaned up)); United States v. Marrero-Pérez, 914 F.3d 20 (1st
Cir. 2019) ("[N]o weight should be given in sentencing to arrests
not buttressed by convictions or independent proof of conduct.").
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The government points out that although the district
court pressed its view concerning the state-court charges in
discussing the case with counsel, it did not subsequently mention
the charges in explaining its sentencing rationale. Moreover, one
can fairly read the court's reference to Serrano not being law-
abiding as only referring to his drug use, not his charges of
violating the Commonwealth's penal code. So normally we would
find no flaw in the sentencing merely because the court, before
explaining its sentencing rationale, evidenced interest in those
charges and offered an unsupported view of their disposition. See,
e.g., United States v. Pedroza-Orengo, 817 F.3d 829, 836–37 (1st
Cir. 2016) (finding that the district court did not rely on the
defendant's mental condition to vary upward because it was not
mentioned in the sentencing rationale, even though it was discussed
earlier); United States v. Gallardo-Ortiz, 666 F.3d 808, 816 (1st
Cir. 2012) ("While the court ultimately considered a variety of
factors when deciding to impose an increased sentence, it never
revisited section 5K2.17. . . . Thus, although it mentioned
section 5K2.17, the court actually relied upon [other aspects of
the crime] to illustrate [its] seriousness.").
Here, though, in its subsequent written explanation for
why it found a violation of condition 9, the district court wrote:
"The defendant was charged for several violations of the Puerto
Rico Penal Code." We do "tend[] to honor" the oral explanation of
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a sentence over the written judgment when they materially conflict,
United States v. Cali, 87 F.3d 571, 579 (1st Cir. 1996), but the
written judgment "is not an empty formality," United States v.
Weathers, 631 F.3d 560, 562 (D.C. Cir. 2011). Rather than conflict
with the oral pronouncement, here we find that the written judgment
renders unreliable our otherwise controlling assumption that the
court excluded from its thinking the express comments it made right
before formally explaining its sentence. In short, when a court
expressly raises reason X, omits (but does not disavow) reason X
in explaining its sentencing rationale, and then clearly includes
reason X in its written judgment, our willingness to ignore the
court's reference to reason X does not apply.
III.
For the foregoing reasons, we vacate the sentence and
remand to a new district court judge for prompt resentencing based
on the existing record as supplemented by argument of counsel and
(if offered and admissible) any facts that occurred after the prior
date of sentencing. Pursuant to Federal Rule of Appellate
Procedure 41(b), the mandate shall issue ten calendar days from
the date of this opinion.4
4Counsel need not wait the full ten days to notify the clerk
of the district court that expedited scheduling of a hearing will
be in order.
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