United States v. Roman-Huertas , 848 F.3d 72 ( 2017 )


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  •           United States Court of Appeals
    For the First Circuit
    No. 15-2109
    UNITED STATES OF AMERICA,
    Appellee,
    v.
    JULIO ROMÁN-HUERTAS,
    Defendant, Appellant.
    APPEAL FROM THE UNITED STATES DISTRICT COURT
    FOR THE DISTRICT OF PUERTO RICO
    [Hon. Aida M. Delgado-Colón, U.S. District Judge]
    Before
    Torruella, Lynch, and Thompson,
    Circuit Judges.
    Eleonora C. Marranzini, Research and Writing Specialist, Eric
    Alexander Vos, Federal Public Defender, and Vivianne M. Marrero-
    Torres, Assistant Federal Public Defender, Supervisor, Appeals
    Section, on brief for appellant.
    Francisco A. Besosa-Martínez, Assistant United States
    Attorney, Rosa Emilia Rodríguez-Vélez, United States Attorney, and
    Mariana E. Bauzá-Almonte, Assistant United States Attorney, Chief,
    Appellate Division, on brief for appellee.
    February 9, 2017
    TORRUELLA, Circuit Judge. Julio Román-Huertas ("Román")
    pled guilty to being a felon in possession of a firearm in
    violation of 
    18 U.S.C. §§ 922
    (g)(1) and 924(a)(2).         His plea
    agreement recommended a total offense level under the United States
    Sentencing Guidelines (the "Guidelines") of seventeen.       At his
    sentencing hearing, Román objected to the total offense level of
    seventeen, arguing that it should instead be twelve because his
    prior felony was not "a controlled substance offense" under the
    Guidelines.   Relying on an untranslated Spanish document, the
    district court ruled that his total offense level was seventeen.
    The Guidelines' recommended sentence was twenty-seven to thirty-
    three months' imprisonment, but the district court sentenced Román
    to forty-six months' imprisonment.      Because the district court
    improperly relied on an untranslated document, we vacate Román's
    sentence and remand for resentencing.
    I.   BACKGROUND
    On March 8, 2014, while Román and another man were
    driving in San Juan, Puerto Rico, Román fired one shot from his
    pistol into the air.   Agents from the Puerto Rico police department
    were in the area, and they arrested Román and seized Román's pistol
    and an additional magazine.     Román was charged with being a felon
    in possession of a firearm.
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    On April 16, 2014, Román entered into a plea agreement,
    which included "advisory Guideline calculations" of a base offense
    level   of   twenty     and    a    three-level   credit    for   acceptance      of
    responsibility, for a total offense level of seventeen.                      This
    calculation assumed that Román's prior conviction had been a
    "controlled substance offense" under U.S.S.G. § 2K2.1(a)(4)(A).
    Although the parties did not stipulate to a Criminal History
    Category     ("CHC"),      the      plea    agreement's     advisory     Guideline
    calculations indicated that Román's recommended sentence would be
    twenty-seven to thirty-three months if he had a CHC of II.                   "The
    parties agree[d] to recommend the lower end of the applicable
    guideline range."
    On   August      12,   2014,   the   probation    officer    filed   a
    presentence investigation report (the "PSR").                 The PSR calculated
    a total offense level of seventeen and a CHC of II, resulting in
    a recommended sentence of twenty-seven to thirty-three months.
    Román's sentencing memorandum, filed on September 5, 2014, stated
    that his "offense level [was] expected to be level 17."                           On
    August 27, 2015, the probation officer filed an addendum to the
    PSR,    which     stated   that     Román    "ha[d]   not   filed   any    written
    objections."
    On September 2, 2015, more than a year after the PSR was
    filed, Román filed objections to it.               Román argued that the PSR
    -3-
    improperly    calculated    his    total    offense    level     as     seventeen,
    because Román's prior conviction under Article 406 of the Puerto
    Rico Controlled Substances Act, P.R. Laws tit. 24, § 2406, "is not
    a 'controlled substance offense' in regards to the Guideline
    Section   2K2.1."       Specifically,      Román   asserted      that    "not   all
    offense[s]    under     [Article   406]     meet   [U.S.S.G.      § 4B1.2(b)'s]
    definition"    of   a   controlled   substance      offense. 1        Thus,   Román
    contended that his total offense level should be twelve, 2 not
    seventeen as the PSR and his plea agreement recommended.
    The district court held a sentencing hearing the next
    day, and Román affirmed that he "reinstate[d] this objection" to
    the total offense level of seventeen.              The Government responded
    that under "a modified categorical approach" the district court
    could "examine if there are existing documents that allow us to
    determine whether [Román's] particular violation of [Article] 406"
    was a controlled substance offense.                The district court then
    stated that it had "the document here which has the legal basis."3
    1  U.S.S.G. § 4B1.2(b) provides the Guidelines' definition of a
    "controlled substance offense" and is cross-referenced by other
    sections of the Guidelines, including U.S.S.G. § 2K2.1(a)(4)(A).
    2  If his prior conviction was not for a controlled substance
    offense, Román's base offense level would be fourteen, rather than
    twenty, see U.S.S.G. § 2K2.1(a)(6), but he would only be eligible
    for a two-level acceptance of responsibility credit, see U.S.S.G.
    § 3E1.1(b).
    3   The district court and the parties used both "document" and
    -4-
    According to the district court, that document "indicate[d] . . .
    that the charges were for violation of . . . [A]rticle 401 that
    entails distribution of a controlled substance" but were "reduced
    to a violation of [A]rticle 406."             The district court further
    explained that "the description" in "this criminal complaint . . .
    entails and encompasses the possession with intent to distribute
    a controlled substance."       The district court then stated that "the
    offense   charged    meets    the   definition   of   .   .   .   a   controlled
    substance offense."       When Román asserted "that the document[s]
    that the Court can examine are limited," the district court replied
    that it had "exercise[d its] due diligence in terms of checking
    that we had the proper documents."
    The document the district court relied on was never
    entered into the record, and so it is not available to us on
    appeal.    The parties agree, and it is clear from the record,
    however, that the document was in Spanish.
    During the argument concerning the proper calculation of
    Román's   total     offense   level,    the   Government      opposed   Román's
    "documents" to describe what they were reviewing. It is not clear
    from the hearing transcript whether there was a single document or
    multiple documents, and the document or documents are not part of
    the record. Except where quoting from the transcript, we will use
    "document" to describe what the parties reviewed.
    To facilitate meaningful review of sentences, we urge parties
    to include in the appellate record any documents relied upon below.
    -5-
    arguments on the merits.      It never objected, either in writing or
    at the hearing, to Román's untimely objection to the PSR.                After
    Román presented his mitigating facts, the Government recommended
    a sentence at the "lower end" of the Guidelines' recommended range.
    After   the   exchange     concerning    the     nature   of     the
    controlled substance offense, Román "ask[ed] the Court to follow
    the joint recommendation and impose a sentence of 27 months."              The
    district court ultimately sentenced Román to forty-six months'
    imprisonment, highlighting the fact that Román had fired his gun
    into the air "while driving a vehicle" in a city, reflecting a
    "blatant disregard for the law and public safety."
    Román timely appealed his sentence.        He argues that the
    district court (1) committed a procedural error when it determined
    that Román's prior conviction was a "controlled substance offense"
    under U.S.S.G. § 2K2.1(a)(4)(A), (2) committed plain error by
    relying on an untranslated Spanish document, (3) committed a
    procedural error by failing to justify its upward variance, and
    (4) imposed a sentence that was substantively unreasonable.
    II.   ANALYSIS
    A.   The English Language Requirement and the Standard of Review
    The   Jones   Act    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
    -6-
    U.S.C. § 864.        "It is clear, to the point of perfect transparency,
    that federal court proceedings must be conducted in English."
    United States v. Millán-Isaac, 
    749 F.3d 57
    , 64 (1st Cir. 2014)
    (quoting United States v. Rivera-Rosario, 
    300 F.3d 1
    , 5 (1st Cir.
    2002)).      This rule applies to all stages of a federal court
    proceeding, including a sentencing hearing.4                     
    Id.
    Román concedes that he did not object to the district
    court's use of the untranslated document.                   The parties therefore
    assume that the plain error standard of review applies.                          They are
    incorrect.      In Rivera-Rosario, the defendants' attorney did not
    object    to    the        presentation     of    Spanish    tape-recordings          and
    documents      to    the     jury   and    in    fact    objected      to   an    English
    translation it considered faulty.                300 F.3d at 5.        We rejected the
    Government's        argument    that      the    plain   error    standard       applied,
    holding that the district court had an "independent duty" to ensure
    the proceedings were conducted in English, and so "we relieve[d]
    the parties of their usual duty to contemporaneously object."                        Id.
    at 6-7.   Instead, we held that "violations of the English language
    requirement         will     constitute     reversible       error      whenever      the
    4  The fact that a probation officer, rather than a party, supplied
    the untranslated document to the district court is irrelevant to
    our analysis.    The Jones Act applies with equal force to any
    material that a probation officer wants the district court to
    consider at sentencing.
    -7-
    appellant can demonstrate that the untranslated evidence has the
    potential to affect the disposition of an issue raised on appeal."
    Id. at 10.     We reaffirmed this standard of review in Millán-Isaac,
    rejecting the Government's assertion that we had "confined Rivera-
    Rosario to its facts" and declining to follow any opinions that
    implied a different standard.         Millán-Isaac, 749 F.3d at 64 n.1.
    We will therefore overturn Román's sentence if "the untranslated
    [document] has the potential to affect the disposition" of his
    appeal.5   Id. at 64.
    B.     Román Did Not Waive His Objection to the Calculation of His
    Total Offense Level
    We must first address the Government's contention that
    Román knowingly waived his objection to the calculation of his
    total offense level.      "Waiver, where it occurs, is treated as an
    'intentional,'      and   therefore     permanent,    abandonment    of    a
    position."      United States v. Torres-Rosario, 
    658 F.3d 110
    , 115
    (1st Cir. 2011) (citing United States v. Walker, 
    538 F.3d 21
    , 22
    (1st   Cir.    2008)).    "[A]   waived     issue   ordinarily   cannot   be
    5  In Rivera-Rosario, we reviewed all five of the defendants'
    convictions for reversible error under the Jones Act, even though
    only two had "raised this issue on appeal," because "violations of
    the English language requirement . . . have the potential to
    eviscerate a party's right to meaningful appellate review." 300
    F.3d at 10 n.11.    We therefore review Román's Jones Act claim
    under the correct standard even though he mistakenly believed that
    it was subject to plain error review.
    -8-
    resurrected on appeal."      United States v. Rodríguez, 
    311 F.3d 435
    ,
    437 (1st Cir. 2002).        "By contrast, a mere failure to object
    'forfeits' a claim, so review on appeal is [generally] only for
    plain error."       Torres-Rosario, 
    658 F.3d at 115
    .       If Román waived
    his objection to his calculated total offense level of seventeen,
    the district court's use of the untranslated document -- which
    related only to that calculation -- cannot affect the disposition
    of his appeal.
    The Government identifies three ways in which Román
    waived his objection:       first, by stipulating to the calculation
    in the plea agreement; second, by failing to file a written
    objection to the PSR until the day before the sentencing hearing;
    and   third,   by    acquiescing   at   the   sentencing   hearing.    The
    Government did not raise Román's stipulation or untimely objection
    before the district court, however, and instead addressed the
    merits of Román's objection, and so it waived the first two
    asserted bases.      See United States v. Castro-Taveras, 
    841 F.3d 34
    ,
    54 (1st Cir. 2016) ("[T]he government did not argue forfeiture and
    instead addressed the merits of [the] claim . . . . Hence, the
    government waived its forfeiture argument . . . ."); Sotirion v.
    United States, 
    617 F.3d 27
    , 32 (1st Cir. 2010) (holding that the
    government waived its procedural default defense by failing to
    raise it in the district court).              For its third basis, the
    -9-
    Government   relies   on    a   statement   by   Román's   counsel   at   the
    sentencing hearing:        "Then Your Honor I would ask the Court to
    follow the joint recommendation and impose a sentence of 27
    months."   Absent context, this may seem like acquiescence, but it
    came after the district court had already ruled that "the offense
    charged meets the definition of . . . a controlled substance
    offense" and that it "had the proper documents" to make that
    determination.   Accepting the district court's ruling and moving
    to a fallback position is neither waiver nor forfeiture.
    C.   The Untranslated Document Had the Potential to Affect the
    Disposition of Román's Appeal
    We must therefore examine whether the district court's
    use of the untranslated document "has the potential to affect"
    Román's argument that his prior conviction under Article 406 was
    not a controlled substance offense.         U.S.S.G. § 4B1.2(b) defines
    a "controlled substance offense" to include the violation of a
    state law "that prohibits . . . the possession of a controlled
    substance (or a counterfeit substance) with intent to manufacture,
    import, export, distribute, or dispense."           This encompasses "the
    offenses of aiding and abetting, conspiring, and attempting to
    commit such offenses."       U.S.S.G. § 4B1.2 cmt. n.1.       It does not,
    however, include mere possession offenses.           See United States v.
    Ramos-González, 
    775 F.3d 483
    , 507 n.27 (1st Cir. 2015).
    -10-
    Román previously pled guilty to Article 406, but, as the
    Government concedes, that statute "encompasses both predicate and
    non-predicate      conduct."      It    was   the   Government's      burden   to
    establish, through the kinds of documents approved by Shepard v.
    United   States,     
    544 U.S. 13
    ,   17    (2005),   that     Román's   prior
    conviction was a controlled substance offense.              United States v.
    Dávila-Félix, 
    667 F.3d 47
    , 55 (1st Cir. 2011).                   The Government
    contends that Román "does not refute -- and indeed, concedes" that
    he was charged under Puerto Rico Laws tit. 24, § 2401 ("Article
    401"), which the Government asserts must be a controlled substance
    offense.6       But the Government must show that Román was convicted
    of a controlled substance offense, and he pled guilty under Article
    406, not Article 401.       To bridge this gap, the Government further
    asserts that "the record" shows that Román was "charged under
    Article 401's 'possession with intent to distribute' modality,"
    and so his Article 406 guilty plea was a distribution conviction.
    The Government cites to the PSR in support of this proposition,
    however, and a PSR is not "an approved source for determining
    whether"    a    defendant's   conviction     was   based   on    a   controlled
    6   Román disputes whether convictions under Article 401 are
    categorically controlled substance offenses. We have previously
    stated that they are not, Dávila-Félix, 667 F.3d at 56, but we do
    not rely on that holding here, and so we need not address the
    Government's argument that we were not apprised of controlling
    Puerto Rico case law in that case.
    -11-
    substance offense.      Ramos-González, 775 F.3d at 506 (citing United
    States v. Carter, 
    752 F.3d 8
    , 20 (1st Cir. 2014)).
    Because    the   district      court    relied    only      on   the
    untranslated document to calculate Román's total offense level,
    that document "affect[s] the disposition" of his appeal.                      See
    Millán-Isaac, 749 F.3d at 64.            We therefore must vacate Román's
    sentence and remand for resentencing.           We need not reach Román's
    remaining claims of error.
    Finally,    we    briefly     address     resentencing.          The
    untranslated document was not evidence, and so any certified
    translation would constitute new evidence.                 In general, "the
    district court may consider only such new arguments or new facts
    as are made newly relevant by the court of appeals' decision" on
    remand for resentencing.       United States v. Dávila-Félix, 
    763 F.3d 105
    , 110 (1st Cir. 2014) (alteration omitted) (quoting United
    States v. Ticchiarelli, 
    171 F.3d 24
    , 32 (1st Cir. 1999)).                We have
    previously allowed additional factfinding where the Government did
    not have an incentive to present evidence, but not "where the
    government    asked     for   the   enhancement      but   failed   to    adduce
    sufficient proof for its imposition -- a situation in which there
    would not likely be reason to permit a second bite at the apple."
    United States v. Montero-Montero, 
    370 F.3d 121
    , 124 (1st Cir.
    2004).   Here, the Government asked for a total offense level of
    -12-
    seventeen     "but   failed    to    adduce   sufficient    proof   for    its
    imposition."     See 
    id.
          The Jones Act requires federal courts to
    conduct proceedings "in the English language," 
    48 U.S.C. § 864
    ,
    and our case law has reaffirmed this many times.              E.g., Rivera-
    Rosario, 300 F.3d at 5; Millán-Isaac, 749 F.3d at 64.                      The
    Government    therefore    had   every   incentive   to    ensure   that   the
    district court relied only on evidence presented in the English
    language.    "[N]o party -- including the government -- is entitled
    to an unlimited number of opportunities to seek the sentence it
    desires."    Ramos-González, 775 F.3d at 508 (quoting Dávila-Félix,
    763 F.3d at 113).      On remand, therefore, the Government may not
    present new evidence of Román's prior conviction.
    III.    CONCLUSION
    We vacate Román's sentence and remand for resentencing
    because the district court improperly relied on an untranslated
    document in calculating Román's offense level.
    Vacated and Remanded.
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