United States v. Millan-Isaac ( 2014 )


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  •            United States Court of Appeals
    For the First Circuit
    Nos. 12-1693,
    12-1769
    UNITED STATES OF AMERICA,
    Appellee,
    v.
    HERIBERTO MILLÁN-ISAAC;
    JOSÉ A. CABEZUDO-KUILAN,
    Defendants, Appellants.
    APPEALS FROM THE UNITED STATES DISTRICT COURT
    FOR THE DISTRICT OF PUERTO RICO
    [Hon. José Antonio Fusté, U.S. District Judge]
    Before
    Torruella, Baldock,* and Kayatta,
    Circuit Judges.
    Megan Barbero, with whom Wilmer Cutler Pickering Hale and Dorr
    LLP, Gregory P. Teran, and Rachel I. Gurvich, were on brief for
    appellant Cabezudo-Kuilan.
    Julie Soderlund, for appellant Millán-Isaac.
    Juan Carlos Reyes-Ramos, 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.
    April 18, 2014
    *
    Of the Tenth Circuit, sitting by designation.
    TORRUELLA, Circuit Judge.             Defendants-Appellants José
    Cabezudo-Kuilan ("Cabezudo") and Heriberto Millán-Isaac ("Millán")
    pled guilty to aiding and abetting a robbery and possessing a
    firearm during a crime of violence.                 At back-to-back sentencing
    hearings, the district court first sentenced Millán to 180 months
    of imprisonment and then sentenced Cabezudo to 114 months of
    imprisonment.       Immediately after sentencing Cabezudo, however, the
    sentencing judge sua sponte elected to bring back Millán and to
    decrease his sentence from 180 to 120 months of imprisonment.
    On appeal, both Appellants challenge their respective
    sentences.       Cabezudo alleges that the district court violated the
    Jones   Act    by   considering      untranslated,      Spanish-language       text
    messages      during    his    sentencing      and    that   his    sentence     is
    procedurally unreasonable.           Millán claims that the district court
    erred by sentencing him on the basis of factual information
    discussed at Cabezudo's sentencing hearing for which he was not
    present    and    to   which   he    could    not    respond.      After   careful
    consideration, we find that the district court plainly erred in
    sentencing both Appellants, and we thus remand for resentencing.
    I.    Background
    A. Factual and procedural background
    In November of 2011, Cabezudo was nineteen years old,
    working as a welder and supplementing his income by loaning money
    to others and charging interest.             Millán was twenty-one years old
    -2-
    and working part-time as a sales person in a clothing store.
    Cabezudo provided Millán with a loan of $150, to be paid back in
    installments of $40 every Saturday. When Millán was unable to make
    one of these scheduled payments, Cabezudo suggested via text
    message that Millán commit a robbery in order to get the money to
    repay him. Millán agreed on the condition that Cabezudo act as the
    getaway driver.
    On November 26, 2011, Cabezudo drove to Millán's home,
    picked him up, and drove to a Burger King in Bayamón, Puerto Rico.
    That night, while Cabezudo waited in the car, Millán entered the
    restaurant, showed the cashier an unloaded firearm, and told her to
    give him the money from the register.          The cashier complied and
    placed $114 on the counter, which Millán grabbed before running out
    the door.   The Burger King's manager followed Millán, however, and
    he quickly flagged down nearby police officers who were patrolling
    the area.     Shortly after Millán reentered Cabezudo's car, the
    police officers approached the vehicle.         Cabezudo turned off the
    ignition, and the duo surrendered.
    Following   their   arrest   and   pursuant   to   their   plea
    agreements, both Cabezudo and Millán pled guilty to aiding and
    abetting each other in the commission of a robbery in violation of
    the Hobbs Act, 18 U.S.C. § 1951 ("Count One"), and to possessing a
    firearm during a crime of violence in violation of 18 U.S.C.
    § 924(c)(1)(A) ("Count Two").      Cabezudo's plea agreement provided
    -3-
    a base offense level of 20 for Count One, reduced by 3 levels for
    acceptance of responsibility.       Pursuant to the U.S. Sentencing
    Guidelines, this resulted in a Guidelines Sentence Range ("GSR") of
    24-30 months for Count One, and the government agreed to recommend
    a 24-month sentence.    For Count Two, the Guidelines sentence was
    equivalent to the mandatory minimum sentence of 60 months, which
    the government agreed to recommend, for a total recommendation of
    84 months of imprisonment on the two counts.         The Pre-Sentencing
    Report ("PSR") confirmed these Guidelines calculations.
    Millán's plea agreement resulted in an identical GSR of
    24 to 30 months for Count One, with the government similarly
    agreeing   to   recommend   a   low-end   sentence   of   24   months   of
    imprisonment.    Unlike Cabezudo, however, Millán pled guilty to
    "brandishing" the firearm on Count Two, which carried a higher
    mandatory minimum of 84 months, for a total recommendation of 108
    months of imprisonment.
    B. Sentencing
    On April 23, 2012, the district court conducted back-to-
    back sentencing hearings for Millán and Cabezudo, with Millán
    appearing first.   The sentencing judge calculated Millán's GSR as
    to Count One to be 24 to 30 months, and he noted that the statutory
    minimum for Count Two was seven years (84 months) of imprisonment.
    The judge then determined that an upward variance was appropriate
    and announced a sentence of 60 months of imprisonment on Count One
    -4-
    and 120 months on Count Two, to run consecutively. Defense counsel
    for Millán did not object to the sentence, and Millán left the
    courtroom.
    The district court then proceeded to sentence Cabezudo.
    Cabezudo's attorney argued at length that the court should accept
    the 84-month sentence recommended in the plea agreement.       To this
    end, counsel for Cabezudo proceeded to summarize a text message
    exchange between Cabezudo and Millán that he believed showed that
    Cabezudo's     decision   to   participate   in   the     robbery   was
    uncharacteristic and a "spur of the moment thing" that he was
    initially reluctant to do. According to counsel, although Cabezudo
    first suggested the robbery as a means for Millán to pay him back,
    when Millán asked him to join in the robbery, he hesitated and
    demonstrated reluctance to participate before eventually agreeing.
    After counsel finished summarizing the messages, the
    sentencing judge asked if a written version of the text messages
    was available.     Defense counsel could not find a copy of the text
    messages, so the sentencing judge said that he was willing to
    accept the summary as accurate. The government agreed that defense
    counsel's summary of the texts was accurate.            At that point,
    however, the Probation Officer located a copy of the text messages
    -- untranslated and in Spanish -- and provided it to the sentencing
    judge. The judge then read the messages from the bench and briefly
    discussed them with counsel.
    -5-
    At the conclusion of Cabezudo's sentencing hearing, the
    district court announced that it was "going to impose the high end
    of the Guidelines on the robbery, which is 30 months.                And I am
    going to impose 84 months on the gun, consecutive."              When defense
    counsel protested that the plea agreement's recommendation of 84
    months was sufficient, the court responded in an unusual manner,
    commenting that "the sentence I imposed on the other gentleman
    perhaps is too high, and we're going to change them both."
    Then, immediately after Cabezudo's sentencing hearing
    ended, the court recalled Millán.         During the course of a minute,
    the court confirmed that Millán's counsel had been present during
    Cabezudo's sentencing and noted that his previously announced
    sentence was "too high."        The judge then stated that "[o]n the
    basis of what we were able to get to know, on the basis of the
    sentence of the codefendant, and on the basis of what we have
    discussed, I think perhaps I should lower the sentence imposed on
    your client."   The district court proceeded to sentence Millán to
    30 months on Count One and 90 months on Count Two for a combined
    sentence of 120 months of imprisonment.           Millán's counsel thanked
    the court, and the proceeding concluded.
    On    May    7,   2012,      Cabezudo    filed    a     motion   for
    reconsideration,      arguing   that      his   114-month       sentence   was
    unreasonable in light of his history and the circumstances of the
    offense. The district court denied the motion, stating that "[t]he
    -6-
    record at sentencing, and the text messages exchanged between the
    two defendants and read by the court confirm that this was a
    coldly-planned robbery."        This timely appeal followed.
    II.    Analysis
    On appeal, Cabezudo contends that the district court's
    reliance      on    untranslated,   Spanish-language    text   messages   at
    sentencing violated section 42 of the Jones Act, which requires
    that "[a]ll pleadings and proceedings in the United States District
    Court for the District of Puerto Rico . . . be conducted in the
    English language."         48 U.S.C. § 864 ("Jones Act" or "English-
    language requirement").        Additionally, he argues that his sentence
    is procedurally unreasonable because the district court failed to
    calculate the applicable GSR and failed to adequately explain its
    sentence.          Millán contends that the district court erred by
    considering new, material information at his sentencing hearing
    that he had no meaningful opportunity to rebut.            We address the
    claims of each Appellant in turn.
    A. Cabezudo
    1. The Jones Act
    Cabezudo argues that the district court violated the
    Jones   Act    by    relying   on   untranslated,   Spanish-language   text
    messages during sentencing.            He suggests that we must vacate his
    sentence because the untranslated messages could have been outcome-
    determinative and we are unable to review them on appeal.           Before
    -7-
    we can address the merits of Cabezudo's argument, however, we must
    first address the government's contention that Cabezudo effectively
    waived      his   Jones   Act    claim    below    and    cannot    appeal    from   a
    "situation he created."             In the government's view, Cabezudo's
    failure to object to the Spanish-language texts before the district
    court ought to constitute waiver because Cabezudo's counsel invited
    the   error       when   he    "first   brought    up    the    text   messages   and
    encouraged the court to review the same."                 We disagree.
    As an initial matter, we note that "it is the independent
    duty of the district court to make sure that '[a]ll pleadings . . .
    be conducted in the English language.'"                  United States v. Rivera-
    Rosario, 
    300 F.3d 1
    , 6 (1st Cir. 2002) (quoting                  48 U.S.C. § 864).
    This duty must not be taken lightly, as it ensures that the
    District of Puerto Rico remains an integrated part of the federal
    judiciary.        See Estades-Negroni v. Assocs. Corp. of N. Am., 
    359 F.3d 1
    , 2 (1st Cir. 2004) (discussing the importance of the
    English-language requirement).              We have repeatedly characterized
    the policy interest of integration as "too great to allow parties
    to convert that court into a Spanish language court at their whim,"
    Puerto Ricans for P.R. Party v. Dalmau, 
    544 F.3d 58
    , 67 (1st Cir.
    2008) (quoting 
    Rivera-Rosario, 300 F.3d at 8
    n.9), and we reiterate
    that the duty of the court to ensure compliance with the Jones Act
    is    not   lessened      in    cases    where    counsel      acquiesces    or   even
    -8-
    encourages the district court to set aside the English-language
    requirement.     
    Rivera-Rosario, 300 F.3d at 8
    n.9.
    Although the district court's duty remains unchanged even
    in cases where defense counsel encourages the court to violate the
    Jones   Act,   the   record   makes    clear    that   there   was     no   such
    encouragement in this case, and that no waiver occurred.                  As the
    government      concedes,     waiver        requires    the        "intentional
    relinquishment of a known right," not a mere failure to object.
    United States v. Torres-Rosario, 
    658 F.3d 110
    , 115-16 (1st Cir.
    2011). In an effort to demonstrate intentional relinquishment, the
    government claims that Cabezudo's counsel encouraged the court to
    review the untranslated messages at sentencing.             The record shows
    otherwise.      While Cabezudo's counsel certainly introduced the
    subject   of   the   text   messages    at    sentencing,     he    did   so   by
    summarizing the contents of the messages in English.               The district
    court then asked defense counsel if he had a copy of the messages
    with him, counsel explained that he did not, and the district court
    stated that it was willing to accept defense counsel's summary as
    accurate.    At this point, the Probation Officer -- not Cabezudo --
    retrieved her own copy of the untranslated messages and provided it
    to the sentencing judge for review. Far from encouraging the court
    to read the messages, Cabezudo's counsel said he was "concerned
    that it's not that simple of a document," noting that it involved
    sent and received messages and that he wanted to "make sure it's
    -9-
    clarified" and "make sure the Court got the right message."             The
    sentencing judge responded by telling Cabezudo to deliver his
    allocution.    On   these    facts,   we   cannot   hold   that    Cabezudo
    intentionally relinquished his Jones Act claim, and we therefore
    proceed to analyze that claim on the merits.
    "It is clear, to the point of perfect transparency, that
    federal court proceedings must be conducted in English."            Rivera-
    
    Rosario, 300 F.3d at 5
    .     As a consequence, federal judges must not
    consider any untranslated documents placed before them.           González-
    de-Blasini v. Family Dep't, 
    377 F.3d 81
    , 89 (1st Cir. 2004).           This
    rule applies with equal force to all stages of federal court
    proceedings, including sentencing hearings.         See United States v.
    Mescual-Cruz, 
    387 F.3d 1
    , 11 (1st Cir. 2004) (holding that failure
    to translate defendant's Spanish-language allocution at sentencing
    violated the Jones Act). We therefore hold that the district court
    erred by accepting and considering an untranslated copy of the text
    messages at Cabezudo's sentencing hearing.
    Our finding of error does not end the matter, however, as
    not all Jones Act violations require reversal.        Violations of the
    Jones Act "constitute reversible error whenever the appellant can
    demonstrate that the untranslated evidence has the potential to
    affect the disposition of an issue raised on appeal."        Dalmau, 544
    -10-
    F.3d at 67 (quoting 
    Rivera-Rosario, 300 F.3d at 10
    ).1   "Absent that
    potential, there is no prejudice from the violation of the Jones
    Act that warrants relief."     
    Rivera-Rosario, 300 F.3d at 10
    .
    Similarly, if the untranslated evidence is merely cumulative, any
    prejudice to the parties caused by this court's inability to review
    1
    The government argues that Rivera-Rosario's reversible error
    rule for unpreserved claims ought not to apply because this circuit
    confined Rivera-Rosario to its facts in United States v. Morales-
    Madera, 
    352 F.3d 1
    , 10 (1st Cir. 2003), and we have consistently
    reviewed unpreserved Jones Act claims for plain error ever since.
    The government is incorrect on both points.
    First, Morales-Madera distinguished Rivera-Rosario but did not
    confine it to its facts.      According to Morales-Madera, which
    declined to apply Rivera-Rosario's reversible error rule and
    instead reviewed for plain error, "the key distinction" between
    Rivera-Rosario and Morales-Madera was that the former involved a
    total failure to translate critical Spanish-language evidence at
    trial, while in the latter case, the jury was provided with the
    necessary translations at trial and the failure to enter those
    translations into evidence was subject to cure via Federal Rule of
    Appellate Procedure 10 ("Rule 
    10"). 352 F.3d at 10
    . In Cabezudo's
    case, as in Rivera-Rosario, the Spanish-language evidence was never
    translated below, making Rule 10 inapplicable.
    Second, as this court's most recent Jones Act analysis makes
    clear, Rivera-Rosario's reversible error rule is still binding in
    this circuit. See 
    Dalmau, 544 F.3d at 67
    (citing Rivera-Rosario
    and reversing without evidence of any objection in the district
    court, so as to guard against parties at their whim turning the
    United States District Court in Puerto Rico into a Spanish language
    court). To the extent that any of our intervening opinions imply
    that Morales-Madera altered the standard of review expressly set
    forth in Rivera-Rosario and as reinforced most recently in Dalmau
    for cases where essential Spanish-language evidence was never
    translated below, we decline to follow them. See United States v.
    Lizardo, 
    445 F.3d 73
    , 88 (1st Cir. 2006) (finding that this court
    is bound by its precedent, "which only an en banc court can
    change").
    -11-
    untranslated evidence is inconsequential and will not require
    reversal.     See 
    id. In this
    case, the sentencing judge expressly stated when
    denying Cabezudo's motion for reconsideration that "[t]he record at
    sentencing,    and   the   text   messages   exchanged     between   the   two
    defendants and read by the court confirm that this was a coldly-
    planned robbery."         It is thus readily apparent that the text
    messages did bear on an issue that the court found dispositive at
    sentencing:     namely,    Cabezudo's      planning   of   the   robbery.
    Nevertheless, the government argues that we must affirm because any
    prejudice caused by the court's consideration of the untranslated
    messages was inconsequential given the purely corroborative nature
    of the messages.     We agree.
    Although Cabezudo argues that the untranslated messages
    could have been outcome-determinative because they were "the only
    source to which the district court referred for its information
    regarding the planning of the offense," the record does not support
    his claim.2    As an initial matter, Cabezudo ignores two important
    2
    Similarly unsupported by the record is Cabezudo's assertion that
    reversal is appropriate because defense counsel and the district
    court disagreed as to the proper "interpretation" of the text
    messages. In truth, what Cabezudo calls a dispute over the meaning
    of the untranslated text messages is more accurately described as
    a complaint that the district court put too much weight on the fact
    that Cabezudo suggested Millán commit a robbery and too little
    weight on the fact that he was hesitant to participate and only
    suggested it because he knew Millán routinely did such things. The
    record shows, however, that the sentencing judge understood and
    accepted both facts.      The court expressly acknowledged that
    -12-
    sources of information: the PSR, and the statements of Cabezudo's
    counsel at sentencing. The PSR -- to which Cabezudo did not object
    -- describes the planning of the event in detail and in a manner
    entirely   consistent     with   the      discussion   at     sentencing.
    Specifically, the PSR states that Cabezudo knew Millán had robbed
    before, and that his desire to be repaid prompted him to suggest
    that Millán commit a robbery.       He subsequently picked up Millán,
    drove to the Burger King, and waited in the car to act as the
    getaway driver in order to facilitate the crime.
    Turning   to   the    text     message   summary    provided     by
    Cabezudo's counsel at sentencing, we find a detailed discussion of
    precisely the same version of events:
    [DEFENSE COUNSEL]: [H]e says, listen, why
    don't you go do one of those [robberies] that
    you do.
    THE COURT: Who says that?
    [DEFENSE COUNSEL]: [Cabezudo] says that.
    THE COURT: Why don't you go and rob someone.
    [DEFENSE COUNSEL]: He says, that's not my
    problem. . . . Get the money. And [Millán]
    says, all right. You have to come with me.
    . . . .
    Cabezudo was not the "intellectual author" of the crime and that he
    may have never robbed before, unlike his co-defendant. That the
    court ultimately elected to place greater weight on the undisputed
    facts that Cabezudo suggested the robbery, picked up Millán, and
    drove him to commit the robbery does not evidence any factual
    disagreement as to the content of the untranslated messages.
    -13-
    THE COURT: You told me himself he planted the
    idea in the other one. He was lending money
    for interest. . . . And the guy's not paying
    him. And then he tells him, why don't you do
    one of these palitos, one of these robberies
    you make.
    . . . .
    [DEFENSE COUNSEL]: [Cabezudo] says it in
    passing, like, listen, that's not my problem.
    Like, you're always robbing Burger Kings. Go
    rob a Burger King.
    The government subsequently agreed that defense counsel's summary
    was accurate, and the court accepted it as such.
    When the sentencing judge did later read the untranslated
    messages from the bench,3 he observed that "[o]n one occasion he
    says, you don't have any job to do today, palito, meaning a
    robbery, because I'm really active and I need the money."   Defense
    counsel responded by saying "we've already discussed that with the
    Court.   We've already addressed that, Judge.   That's exactly what
    we told the Court."   As defense counsel's own statements show, the
    untranslated text messages were cumulative, serving only to further
    corroborate both the PSR and the English-language text message
    summary provided by defense counsel. Accordingly, we find that any
    prejudice resulting from the district court's consideration of the
    3
    The sentencing judge initially expressed confusion as to who had
    sent and received the messages he was reading, but the government
    quickly corrected the court by stating that Millán sent the message
    saying that the Burger King would be a "piece of cake." Defense
    counsel agreed, adding that it reinforced their earlier point that
    Millán encouraged Cabezudo to join in the robbery.
    -14-
    untranslated messages was inconsequential and does not constitute
    reversible     error.      See     
    Rivera-Rosario, 300 F.3d at 10
    (characterizing as inconsequential the prejudice resulting from
    untranslated evidence that is cumulative).
    2. Reasonableness
    Having disposed of Cabezudo's Jones Act claim, we turn
    now to consider the reasonableness of his sentence.                     Cabezudo
    argues that his sentence is procedurally unreasonable for two
    reasons:    first,   the   district     court    failed    to    calculate     the
    applicable GSR, and second, the court did not adequately explain
    its sentence.
    Typically,     we      review      criminal        sentences      for
    reasonableness under an abuse-of-discretion standard.                   Gall v.
    United States, 
    552 U.S. 38
    , 51 (2007).              Where no objection was
    raised at sentencing, however, we review for plain error.                   United
    States v. Fernández-Hernández, 
    652 F.3d 56
    , 71 (1st Cir. 2011);
    United States v. González-Castillo, 
    562 F.3d 80
    , 82 (1st Cir.
    2009).     To survive plain-error review and merit resentencing, a
    defendant must make four showings: (1) an error occurred, (2) that
    was clear or obvious, (3) that affected his substantial rights, and
    (4) that seriously impaired the fairness, integrity, or public
    reputation of judicial proceedings.             United States v. Olano, 
    507 U.S. 725
    , 732-37 (1993).         Because Cabezudo did not raise any claim
    -15-
    of procedural error below, we review his claims under the demanding
    plain-error standard of review.
    Our   review   of     a    criminal      sentence's      procedural
    reasonableness begins by considering whether the court committed a
    serious   procedural   error,     such    as    "failing   to   calculate    (or
    improperly     calculating)      the   Guidelines      range,    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."   United States v. Innarelli, 
    524 F.3d 286
    , 292 (1st Cir.
    2008).    Accordingly, we start with Cabezudo's claim that the
    district court plainly erred by failing to calculate the applicable
    Guidelines sentence.
    Although the Sentencing Guidelines are now advisory
    rather than mandatory, district courts are still required to "begin
    all sentencing proceedings by correctly calculating the applicable
    Guidelines range."     
    Gall, 552 U.S. at 49
    .          Only after a court has
    correctly calculated the applicable GSR and evaluated the factors
    set out in 18 U.S.C. § 3553(a) can it properly exercise its
    discretion to sentence a defendant within or outside the applicable
    Guidelines range. Far from a meaningless exercise, the requirement
    that the district court begin by correctly calculating the GSR
    serves an important function; it provides a "framework or starting
    -16-
    point" to guide the exercise of the court's discretion. Freeman v.
    United States, 
    131 S. Ct. 2685
    , 2692 (2011).       Starting with such a
    framework gives the sentencing judge "an idea of the sentences
    imposed   on    equivalent   offenders     elsewhere,"    which    in   turn
    "promote[s] uniformity and fairness" in sentencing.          United States
    v. Rodríguez, 
    630 F.3d 39
    , 41 (1st Cir. 2010).           Thus, even though
    sentencing judges are free to impose non-Guidelines sentences in
    appropriate cases, "district courts must still give respectful
    consideration     to   the   now-advisory      Guidelines     (and      their
    accompanying policy statements)."        Pepper v. United States, 131 S.
    Ct. 1229, 1247 (2011) (internal quotation marks omitted).
    At Cabezudo's sentencing hearing, the district court
    announced that it was "going to impose the high end of the
    guidelines on the robbery, which is the 30 months."          This solitary
    statement constitutes the court's only reference to the applicable
    GSR at Cabezudo's sentencing.     The district court never identified
    the low end of the GSR for Count One, nor did it identify
    Cabezudo's criminal history category or offense level.            Worse yet,
    the court made no reference whatsoever to the Guidelines Sentence
    for Count Two before imposing a sentence of 84 months on that Count
    -- a full two years higher than the Guidelines sentence of 60
    months.   See U.S. Sentencing Guidelines Manual § 2K2.4(b) ("[I]f
    the defendant . . . was convicted of violating section 924(c). . .
    -17-
    of title 18, United States Code, the guideline sentence is the
    minimum term of imprisonment required by statute.").
    The government, in an effort to persuade us that the
    sentencing judge did calculate the applicable GSR for Count Two,
    points us to the court's comment at the end of the hearing that it
    wanted to clarify that it did not use any departures because it saw
    no reason to, but that "when you look at it, the truth of the
    matter is this is a variance case." The government reasons that "a
    variance case" must have referred to Count Two because Count One
    was a within-Guidelines sentence. From this, the government posits
    that the court must have known that it was sentencing outside of
    the Guidelines on Count Two, which in turn suggests that the court
    properly calculated the applicable Guidelines before sentencing
    Cabezudo.    We are not persuaded.4
    Even if we were certain that the district court knew that
    it was imposing a variant sentence on Count Two, the sentencing
    transcript gives no indication that the court chose to do so after
    determining    the   correct   Guidelines   sentence.    Taking   the
    4
    Similarly unconvincing is the government's argument that we
    should infer from the court's discussion of the applicable
    Guidelines at Millán's sentencing hearing that it must have known
    the correct Guidelines sentence for Cabezudo. Critically, this
    argument ignores the fact that Millán's Guidelines sentence for
    Count Two was 84 months while Cabezudo's was 60 months.         If
    anything, the fact that the district court sentenced Cabezudo in a
    manner consistent with Millán's Guidelines sentence for Count Two
    -- after calculating only Millán's Guidelines sentence -- is
    additional cause for concern.
    -18-
    government's logic at face value, we can only assume that the
    district court thought the Guidelines advised something other than
    the sentence imposed.       This does not suffice.          Even where a
    district court concludes that a variant sentence is appropriate, it
    is still essential that the court begin by calculating the correct
    GSR.     United States v. Ortiz, 
    741 F.3d 288
    , 294 (1st Cir. 2014)
    (remanding despite district court's stated intention to "do a small
    variance"    where   district   court   had   improperly   calculated   the
    applicable GSR).
    Given the district court's total failure at sentencing to
    calculate the applicable Guidelines sentence for Count Two, we are
    forced to conclude that the district court committed procedural
    error.    We turn now to consider the consequences of this error.        As
    we have previously made clear, a district court's failure to
    calculate conclusively a defendant's GSR is "a serious procedural
    error."    United States v. Tavares, 
    705 F.3d 4
    , 26 (1st Cir. 2013)
    (citing 
    Gall, 552 U.S. at 51
    ).          Accordingly, a finding that the
    district court so erred "will usually require resentencing."
    
    Rodríguez, 630 F.3d at 41
    .          Nevertheless, the fact that the
    district court committed such a serious procedural error does not
    automatically entitle Cabezudo to resentencing.        
    Tavares, 705 F.3d at 25
    .
    In Tavares, this court found that resentencing was not
    required where the district court erred by failing to conclusively
    -19-
    determine the applicable 
    GSR. 705 F.3d at 25-28
    . We reasoned that
    the district court's failure to choose the correct GSR was harmless
    error because the court correctly calculated the two potential GSRs
    as recommended by the parties before clearly stating that it was
    going to sentence in such a way that the Guidelines calculation did
    not matter; the district court then imposed a sentence above both
    of the suggested Guidelines ranges, citing the nature of the
    offense and the goals of sentencing. 
    Id. at 27-28.
    Significantly,
    we found that the sentencing judge in Tavares "did not fail
    completely to calculate Mr. Tavares's guidelines sentencing range
    or impose his sentence without any consideration of the Guidelines.
    . . . The district court clearly understood the options within the
    possible guidelines calculations and clearly rejected all of them
    as yielding too lenient a sentence."      
    Id. at 27.
          We also noted
    that "[c]ases in which reversible error has been found involve[d]
    far less awareness of the applicable guidelines range than we find
    here," and that Tavares's case "stands in stark contrast to typical
    cases where a district court's failure to calculate a defendant's
    guidelines   sentencing   range     has   warranted    a    remand   for
    resentencing."   
    Id. at 28
    n.37 (citing United States v. Peebles,
    
    624 F.3d 344
    , 347 (6th Cir. 2010)), as a "typical" case where
    resentencing was required because neither the attorneys nor the
    district court addressed the applicable GSR at all during the
    sentencing hearing).
    -20-
    In Cabezudo's case, however, the district court did "fail
    completely to calculate [his] guidelines sentencing range" and
    seemingly      imposed   its    sentence     for   Count    Two    "without     any
    consideration of the Guidelines."            See 
    id. at 27;
    see also 
    Ortiz, 741 F.3d at 294
    .         Accordingly, this is precisely the kind of
    "typical" case that we noted in Tavares would require remand for
    resentencing.       Thus, we find that the district court's total
    failure   to    calculate      the   applicable    GSR     for    Count   Two   was
    reasonably likely to have influenced Cabezudo's sentence and that
    it is appropriate to remand for resentencing.
    Although the district court did later calculate the
    applicable GSR in its written statement of reasons, this belated
    consideration raises more concerns than it resolves, as the court
    wrote therein that it had sentenced Cabezudo to a within-Guidelines
    sentence.   In fact, the 84-month sentence imposed by the court for
    Count Two exceeded the applicable Guidelines sentence by two years.
    Following on the heels of the district court's failure to calculate
    the applicable GSR, the court's evident confusion about the nature
    of the sentence imposed is troubling and further reinforces our
    belief that resentencing is necessary.
    At the risk of piling on, we also note that the district
    court's handling of the statement of reasons form reveals another
    error.    By statute, whenever a district court imposes a sentence
    outside the applicable GSR, the court must also state the "specific
    -21-
    reason for the imposition of a sentence different from that
    described, which reasons must also be stated with specificity in a
    statement of reasons form." 18 U.S.C. § 3553(c); see also Peugh v.
    United States, 
    133 S. Ct. 2072
    , 2084 (2013) ("[A] district court
    varying from the Federal Guidelines should provide an explanation
    adequate to the extent of the departure"); 
    Gall, 552 U.S. at 51
    (classifying as "significant procedural error" a district court's
    failure "to adequately explain the chosen sentence--including an
    explanation for any deviation from the Guidelines range"). In this
    case, however, the court failed to offer any written explanation
    for its sentence whatsoever.     The court left blank the sections of
    the statement of reasons form calling for the court to explain its
    non-Guidelines sentence, and it instead checked a box indicating
    that it had imposed a within-Guidelines sentence.               Thus, the
    court's written statement of reasons for its sentence -- or, more
    precisely, the lack thereof -- is inadequate as a matter of law.
    As   we   have   already    determined   that   resentencing   is
    appropriate due to the district court's failure to calculate the
    applicable GSR, we need not press on to consider whether the
    court's failure to provide a written statement of reasons in light
    of its limited oral explanation5 for an above-Guidelines sentence
    5
    At the sentencing hearing, the judge's explanation of Cabezudo's
    sentence took the following form:
    You got me to lower him from 180 in my mind to 114. . . .
    He was the one who picked him up, took him to the place,
    -22-
    constitutes       plain   error.       Thus,   although    we     express     some
    reservations as to the adequacy of the explanation in this case, we
    go no further.6
    We now turn our attention to Millán.
    B. Millán
    For the first time on appeal, Millán argues that the
    district court erred at sentencing by considering evidence and
    information of which he had no notice.                  Specifically, Millán
    objects to the court's reliance on: (1) the government's proffer at
    sentencing regarding the impact of the robbery on the Burger King
    cashier,    and    (2)    the   text   messages   and     other    evidence    of
    comparative responsibility discussed at co-defendant Cabezudo's
    sentencing.   Arguing that he had no notice of either prior to his
    own sentencing hearing -- and thus no meaningful opportunity to
    respond -- Millán contends that reversal is required.                 As Millán
    who suggested the robbery, make one of your palitos so
    you can pay the money you owe me back. . . . [Y]ou will
    notice that I did not make any use of departure, because
    I didn't find that there was any real reason, any
    particular reason to depart. Perhaps 5K 2.0. But when
    you -- when you look at it, the truth of the matter is
    this is a variance case.
    6
    We note that our finding that Cabezudo's sentence is
    procedurally unreasonable and requires resentencing means that his
    challenge to the substantive reasonableness of his sentence need
    not be considered. See United States v. Rodríguez, 
    527 F.3d 221
    ,
    231 n.5 (1st Cir. 2008) (reasoning that because court vacated and
    remanded for resentencing, it was unnecessary to reach defendant's
    alternative argument, which challenged the sentence's substantive
    reasonableness).
    -23-
    failed to object to the court's consideration of this information
    below, his claim is subject to the demanding plain-error standard
    of review.    See United States v. Mangone, 
    105 F.3d 29
    , 35 (1st Cir.
    1997).
    It is abundantly clear that a district court has broad
    discretion at sentencing to consider information pertaining to the
    defendant and the defendant's offense conduct.            United States v.
    Zavala-Martí, 
    715 F.3d 44
    , 54-55 (1st Cir. 2013).              This includes
    the ability to consider information from court proceedings at which
    the defendant was not present, such as a co-defendant's sentencing
    hearing.     See United States v. Rivera-Rodríguez, 
    489 F.3d 48
    , 53
    (1st Cir. 2007).      The district court's discretion is not without
    limits, however, and one such limit requires the court to base its
    sentence     only   upon   information   with   "'sufficient     indicia   of
    reliability to support its probable accuracy.'"           United States v.
    Gallardo-Ortiz, 
    666 F.3d 808
    , 811 (1st Cir. 2012) (quoting United
    States v. Cintrón–Echautegui, 
    604 F.3d 1
    , 6 (1st Cir. 2010)).
    Relatedly,    the    district   court    must   afford   the   defendant   an
    opportunity to respond to the factual information offered against
    him at sentencing. See 
    Cintrón–Echautegui, 604 F.3d at 6
    ; see also
    U.S. Sentencing Guidelines Manual § 6A1.3(a) ("When any factor
    important to the sentencing determination is reasonably in dispute,
    the parties shall be given an adequate opportunity to present
    information to the court regarding that factor."); Fed. R. Crim. P.
    -24-
    32(i)(1) ("At sentencing, the court: . . . must allow the parties'
    attorneys to comment on . . . matters relating to an appropriate
    sentence.").
    Of   course,   a   defendant's   right   to    respond   to   the
    information offered against him at sentencing means very little
    without a right to notice of that information.          See United States
    v. Berzon, 
    941 F.2d 8
    , 18 (1st Cir. 1991) ("'Th[e] right to be
    heard has little reality or worth unless one is informed.'"
    (alteration in original) (quoting Burns v. United States, 
    501 U.S. 129
    , 136 (1991))); see also Irizarry v. United States, 
    553 U.S. 708
    , 715 (2008) ("[J]udges in all cases should make sure that the
    information provided to the parties in advance of the hearing, and
    in the hearing itself, has given them an adequate opportunity to
    confront and debate the relevant issues.").              This court has
    therefore held that "'a defendant may not be placed in a position
    where, because of his ignorance of the information being used
    against him, he is effectively denied an opportunity to comment on
    or otherwise challenge material information considered by the
    district court.'"    
    Rivera-Rodríguez, 489 F.3d at 54
    (quoting
    
    Berzon, 941 F.2d at 21
    ).        Accordingly, we have found remand
    necessary where a sentencing court relied on new and significant
    information gleaned from a co-defendant's sentencing hearing when
    that information was not in the record and the defendant was not
    present during his co-defendant's sentencing.      Berzon, 941 F.2d at
    -25-
    17 (rejecting government's claim of constructive notice where
    defense counsel knew of co-defendant's sentencing held three months
    prior but did not attend or request a transcript because co-
    defendant's sentencing hearing "was not part of a joint proceeding
    in which [the defendant] or his counsel took part"); see also
    
    Zavala-Martí, 715 F.3d at 55
    (remanding for resentencing where
    "[a]ppellant was alerted to the ex parte meeting for the first time
    during the court's sentencing pronouncement, and he thus had
    insufficient notice and no opportunity to develop a response to any
    adverse information communicated there").        On the other hand, we
    have affirmed where "there is no indication from the record that
    the   sentencing   judge   materially   relied    on   any   undisclosed
    testimony." 
    Rivera-Rodríguez, 489 F.3d at 55
    . Thus, we scrutinize
    the record closely to determine whether the court considered new
    information at sentencing and if so, whether it materially relied
    on that information in crafting Millán's sentence.
    In this case, as in Berzon, the record does reflect the
    court's   consideration    of   new,    significant    information    at
    sentencing.   After Millán's allocution, the sentencing judge asked
    the government if it had anything to say.        The government replied
    by stating it wanted to add that "the victim, the cashier . . . had
    in fact previously worked in another restaurant where a robber
    killed a cashier, so she was very [a]ffected by this robbery."
    Later in the hearing, when defense counsel informed the court that
    -26-
    she had "three persons who are willing to testify," the court
    responded by saying it did not need to hear from them because it
    was "going to go by what happened. . . .     A young girl was freaked
    out, completely freaked out, destroyed emotionally by the fact that
    they pointed a gun at her to take 114 dollars."         The sentencing
    judge then theorized that Millán likely did not ask the cashier
    politely for the money when he showed her the gun, and he announced
    that he was imposing a variant sentence of 60 months on the robbery
    count and 120 months on the gun count.
    The government has not directed us to any information in
    the record describing either the cashier's personal history with
    similar crimes or the way that this particular robbery affected
    her. Our own review of the record reveals that no such information
    is contained in Millán's indictment, plea agreement, or PSR.          It
    therefore appears that the district court's conclusion that the
    cashier was "destroyed emotionally" by the robbery was based
    primarily    upon   victim   impact   information   proffered   by   the
    government for the first time at Millán's sentencing hearing.        The
    consideration of such new information is particularly concerning
    here given the court's subsequent announcement that it would
    sentence Millán to 60 months on the robbery count -- a period of
    incarceration more than twice as long the government's recommended
    sentence.    Cf. United States v. Curran, 
    926 F.2d 59
    , 60-64 (1st
    Cir. 1991) (reversing for resentencing where the sentencing judge
    -27-
    referenced victim impact letters not mentioned in the PSR or
    disclosed to defendant prior to sentencing and the court imposed a
    heavier sentence than was recommended by the government). But this
    did not end the matter.
    After announcing Millán's sentence and informing him of
    his right to appeal, the district court excused Millán from the
    courtroom and proceeded to conduct Cabezudo's sentencing hearing.
    During that hearing, the court commented that "the sentence that I
    imposed on [Millán] is perhaps too high, and we're going to change
    them both."   The court then took the unusual step of reconvening
    Millán's sentencing hearing, announcing that "[o]n the basis of
    what we were able to get to know, on the basis of the sentence of
    the co-defendant, and on the basis of what we have discussed, I
    think perhaps I should lower the sentence imposed on your client."
    Thus, both the chronology and the court's own words strongly
    suggest that the district court elected to adjust Millán's sentence
    on the basis of facts learned at Cabezudo's sentencing hearing, for
    which Millán was not present.7
    7
    A little more than halfway through Cabezudo's sentencing
    hearing, the sentencing transcript shows that the court asked the
    Marshals to get Millán from the cell block and return him to the
    courtroom so that he might hear Cabezudo's allocution. Missing
    from the transcript, however, is any indication of when Millán
    actually returned.     According to Millán's counsel, who also
    represented him below, Millán did not return to the courtroom until
    "almost at the end of the hearing," long after the court had
    discussed the text-message exchange between the co-defendants and
    other relevant information. The government did not dispute this
    assertion.
    -28-
    Accordingly, we must determine whether the information
    presented at Cabezudo's sentencing was already made known to Millán
    either in his PSR or elsewhere in the record, or whether the
    information was new.    See 
    Berzon, 941 F.2d at 20
    ("The difficulty
    here . . . is that the testimony and argument at [the co-
    defendant's] sentencing included information not in the PS[R] nor
    otherwise in the record in [the defendant's] case.").      What the
    court "got to know" and "discussed" during Cabezudo's sentencing
    hearing spans 39 pages.    Among other things, the court heard that
    Cabezudo suggested the robbery as a means of repayment because he
    believed Millán routinely committed robberies, and that Millán
    agreed to participate only on the condition that Cabezudo help him
    with the robbery.      The court read and discussed text messages
    suggesting that Cabezudo was initially reluctant to participate,
    but that he agreed to come with Millán's assurance that the Burger
    King would be "a piece of cake."   And when defense counsel told the
    court that Cabezudo "was not the intellectual author of the crime,"
    the court responded by saying "Of course not.    [Millán] robs more
    than [Cabezudo]."   Defense counsel clarified that Cabezudo had no
    criminal history, prompting the sentencing judge to reason that
    "maybe [Cabezudo] never robbed . . . [b]ut he knew [Millán]
    robbed."
    Of this information received at Cabezudo's sentencing
    hearing, the only fact reflected in Millán's PSR is that he agreed
    -29-
    to participate in the robbery as a means of repaying Cabezudo.
    There is no discussion of either his inducing Cabezudo to assist
    him or of the co-defendants' relative roles in planning the offense
    -- a subject that was discussed at length during Cabezudo's
    sentencing. Additionally, nothing in Millán's PSR suggests that he
    had experience committing similar robberies. In fact, according to
    Millán's PSR, he had no known criminal history.              Millán's counsel
    had previously emphasized precisely this point in an ex parte
    sentencing memorandum, asserting that Millán "is a first time
    offender without any prior criminal behavior whatsoever."                   The
    government never disputed this fact, and the only information the
    sentencing     court   heard   to   the   contrary   came    from   Cabezudo's
    sentencing hearing.
    For a second time, then, we see the sentencing court
    seemingly adjusting Millán's sentence on the basis on facts outside
    the record, and we turn now to the question of whether this error
    merits reversal.       Undoubtedly, the court's error was clear at the
    time of sentencing.      See 
    Rivera-Rodríguez, 489 F.3d at 53
    ; 
    Curran, 926 F.2d at 63
    (holding that henceforth, where a sentencing court
    relies   on    extra-record    factual    information   at    sentencing,   it
    "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.").        We therefore turn to the question of
    whether Millán's substantial rights were affected by the court's
    -30-
    consideration of new, material information of which he had no
    notice prior to his sentencing. Essentially, Millán must show that
    the error "affected the outcome of the district court proceedings."
    
    Olano, 507 U.S. at 734
    .
    The government apparently concedes that the information
    discussed at Cabezudo's hearing affected Millán's sentence, noting
    that "those arguments and information [discussed at Cabezudo's
    hearing] . . . persuaded the court to change its mind as to the
    circumstances of the offense." Nevertheless, the government argues
    that Millán's notice claim cannot survive plain error review
    because "the information presented at Cabezudo's sentencing hearing
    only benefitted Millán, who received a significant sentencing
    reduction as a result."           We disagree.
    The fact that the district court relied on extra-record
    information         when   reducing     Millán's   sentence     from   one    above-
    Guidelines sentence to another does not negate the likelihood that
    had   Millán    been       afforded    an    opportunity   to   respond      to   that
    information, his sentence may have been lower still.                   Indeed, the
    government's recommended sentence was 108 months, not the 120
    imposed by the court.          Under these circumstances, we cannot ignore
    the fact that both the victim impact evidence and the information
    discussed      at    Cabezudo's       sentencing   constituted    new,    material
    information.        Particularly given the court's demonstrated interest
    in assessing the effect of crime on the community and the relative
    -31-
    roles of the co-defendants in this case,8 Millán should have had
    the     opportunity     to   respond    to     the   extra-record   information
    regarding his comparative culpability, his criminal history, and
    the impact of his offense on the victim before the court relied on
    it at his sentencing.
    As Millán points out, had he been present at Cabezudo's
    sentencing hearing and given a second opportunity to address the
    court,    he    could   have   challenged      the   "unreliable"   information
    presented       at   Cabezudo's     hearing      regarding    the   relative
    responsibilities of the two co-defendants, explained the meaning of
    the text messages read by the court, and disputed the court's
    unfavorable conclusion regarding his criminal history. Considering
    that even the 120-month sentence ultimately imposed by the district
    court exceeded the government's recommended sentence by a full
    year,    we    cannot   ignore    the   likelihood     that   Millan's   variant
    sentence was affected by the court's unanticipated reliance on
    extra-record, material information at his sentencing.               See 
    Curran, 926 F.2d at 63
    .
    Based on the record before us, we find that it is
    reasonably likely that the court's erroneous consideration of new,
    significant information -- to which Millán had no meaningful
    8
    Indeed, at Cabezudo's sentencing hearing, the court described
    the significance of Cabezudo's allocution by observing that "he has
    to be brave enough to put his own case in his own perspective, so
    we can actually figure out what we're going to do with him. Part
    of it is recognizing what you did and what the other guy did."
    -32-
    opportunity to respond -- affected the court's determination of his
    sentence.      Recognizing further that "[p]rior notice is one of the
    most zealously guarded rights of criminal defendants. . . . [such]
    that disregard for it cannot help but have a denigrating effect on
    the    fairness,         integrity,      and     public    reputation       of   judicial
    proceedings,"            
    Mangone, 105 F.3d at 36
    , we find that Millán's
    sentence should be vacated, and we remand for resentencing.9
    As a final matter, we emphasize that nothing in this
    opinion should be read to suggest that the district court is not
    free to consider at resentencing either victim impact information
    or information presented at Cabezudo's sentencing hearing. Rather,
    we    merely    hold       that   the   court     must    provide     notice,    and   the
    opportunity         to   respond,       before    relying      on    such   extra-record
    information.
    III.    Conclusion
    We    are    not    unsympathetic          to   the   significant       time
    pressures felt by the district courts as they manage heavy dockets
    with limited resources.                 Nevertheless, we cannot overlook the
    serious procedural errors at issue in this case.                            The district
    court plainly erred by sentencing Cabezudo without calculating the
    applicable GSR and by sentencing Millán without providing him with
    9
    Because we find that resentencing is required, Millán's
    additional claims of procedural error at sentencing are moot, and
    his challenge to the substantive reasonableness of his sentence
    need not be addressed. See 
    Rodríguez, 527 F.3d at 231
    n.5.
    -33-
    notice and an opportunity to rebut the facts that formed the basis
    of his sentence.   We therefore hold that the defendants' sentences
    are vacated and remanded for resentencing consistent with this
    opinion.
    Of course, the district court remains free on remand to
    exercise its discretion to sentence the defendants within or
    outside of the applicable Guidelines ranges, and we take no view at
    this time as to the length of the sentences to be imposed.       So long
    as the sentencing court affords proper notice and opportunity to be
    heard, begins by calculating the applicable Guidelines sentences,
    and adequately explains its sentences after consideration of the
    relevant   sentencing   factors,     it   is   free   to   exercise   its
    considerable discretion in crafting appropriate sentences for the
    Appellants.
    REMANDED FOR RESENTENCING.
    -34-