United States v. Romero ( 2018 )


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  •           United States Court of Appeals
    For the First Circuit
    No. 17-1702
    UNITED STATES OF AMERICA,
    Appellee,
    v.
    RUMENI DANIEL ROMERO,
    Defendant, Appellant.
    APPEAL FROM THE UNITED STATES DISTRICT COURT
    FOR THE DISTRICT OF MASSACHUSETTS
    [Hon. Douglas P. Woodlock, U.S. District Judge]
    Before
    Lynch, Kayatta, and Barron,
    Circuit Judges.
    Elaine Pourinski on brief for appellant.
    Mark T. Quinlivan, Assistant United States Attorney, and
    Andrew E. Lelling, United States Attorney, on brief for appellee.
    July 18, 2018
    LYNCH, Circuit Judge.         Rumeni Daniel Romero pled guilty
    to unlawful re-entry into the United States, in violation of
    
    8 U.S.C. § 1326
    (a) and (b)(2).            After finding Romero subject to
    the   undisputed    46-57     month    advisory   United     States   Sentencing
    Guidelines range calculated in his presentence report (PSR), the
    district court sentenced Romero to a term of 42 months in prison.
    On appeal, Romero points out for the first time that the PSR
    erroneously applied an enhancement, but for which his Guidelines
    range would be only 30-37 months.                 We vacate and remand for
    resentencing.
    The    relevant    facts    follow.      On    January    24,     2017,
    Department of Homeland Security agents apprehended Romero in the
    course of an investigation in Chelsea, Massachusetts.                   Romero, a
    native of Honduras, had been ordered removed from the United States
    and deported to Honduras on four occasions between 2006 and 2013.
    On February 23, he was charged with unlawful re-entry, in violation
    of 
    8 U.S.C. § 1326
    (a) and (b)(2). On April 3, he pled guilty.
    The Probation Office prepared Romero's PSR on June 5,
    2017.     The report applied, inter alia, a four-level enhancement
    under U.S.S.G. § 2L1.2(b)(2)(D) on the grounds that by the time
    Romero was first deported, he had already been convicted of
    felonies other than illegal re-entry: use of a motor vehicle
    without    authority,   and     assault    and    battery.      Based    on   that
    enhancement and other adjustments, Romero's offense level was 19
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    and his Guidelines range was 46-57 months.                Romero did not object
    to the enhancement; instead, he stated in his sentencing memorandum
    that "there is no dispute that the [Guidelines range] is 46-57
    months (level 19, CHC IV)."
    At Romero's sentencing hearing, held on July 11, 2017,
    the district court checked with the parties that it correctly
    understood that "there is no dispute with respect to the sentencing
    guideline range."        Romero's counsel confirmed that the court's
    understanding was "correct" and that the offense level of 19 and
    corresponding Guidelines range of 46-57 months set forth in the
    PSR rested on "correct calculations."               After hearing the parties'
    sentencing    recommendations      and       noting    that   it    had    considered
    Romero's    Guidelines     range   as    a    "beginning      point,"      the   court
    sentenced    Romero   to    a   below-guidelines          term      of    42   months'
    imprisonment.
    On appeal, Romero claims for the first time that the
    district court's application of the § 2L1.2(b)(2)(D) enhancement
    was in error.      He cites Application Note 3 to § 2L1.2, which
    instructs that for purposes of applying subsection (b)(2) "only
    those convictions that receive criminal history points" should be
    used. The purported predicate convictions in Romero's PSR did not
    receive    criminal   history      points.          Without     the      enhancement,
    Romero's    offense   level     would    be    15     instead      of    19,   and   his
    Guidelines range would be 30-37 months instead of 46-57 months.
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    We   review   unpreserved      challenges    to    the     procedural
    reasonableness of a sentence for plain error.                 United States v.
    Rondón-García, 
    886 F.3d 14
    , 20 (1st Cir. 2018).                       Under that
    standard, the defendant must show "(1) that an error occurred
    (2) which was clear or obvious and which not only (3) affected the
    defendant's substantial rights, but also (4) seriously impaired
    the   fairness,    integrity,     or     public    reputation     of    judicial
    proceedings."     United States v. Duarte, 
    246 F.3d 56
    , 60 (1st Cir.
    2001).
    The government concedes that Romero can establish plain
    error because application of the § 2L1.2(b)(2)(D) enhancement was
    a "clear and obvious" error that affected his "substantial rights."
    And the Supreme Court recently held that "[i]n the ordinary case,
    as here, the failure to correct a plain Guidelines error that
    affects a defendant's substantial rights will seriously affect the
    fairness,    integrity,     and        public     reputation     of     judicial
    proceedings."     Rosales-Mireles v. United States, 
    138 S. Ct. 1897
    ,
    1911 (2018).     Rosales-Mireles is on all fours with Romero's case,
    as it involved an error in a presentence report, unnoticed by the
    parties and the district court, that inflated the Guidelines range
    of a defendant convicted of illegal re-entry from 70-87 months to
    77-96 months. See 
    id. at 1901
    .
    The government's sole argument for an affirmance is that
    Romero waived his claim of error.           See United States v. Corbett,
    - 4 -
    
    870 F.3d 21
    , 30 (1st Cir. 2017) ("Although a forfeited claim will
    be reviewed for plain error, 'a waived issue ordinarily cannot be
    resurrected on appeal.'" (quoting United States v. Walker, 
    538 F.3d 21
    , 23 (1st Cir. 2008))).        The crux of the argument is that
    by not just failing to object but also affirmatively conceding to
    the district court that the PSR's 46-57 month Guidelines range
    calculation was "correct," Romero knowingly relinquished his right
    to challenge the applicability of any underlying enhancement. Cf.
    United States v. Bauzó-Santiago, 
    867 F.3d 13
    , 24 (1st Cir. 2017)
    (defining waiver as the "intentional relinquishment or abandonment
    of a known right").     Romero counters that he never "intended to
    proceed   under   an   improperly    calculated   sentencing   guideline
    range"; rather, he (like the Probation Office and the prosecution)
    simply "missed the inaccuracy" in the PSR.
    We are dubious about the government's waiver rationale.
    Sentencing judges routinely ask defendants whether they have any
    objections to the contents of their presentence report, including
    in particular the calculated Guidelines range.      Where the Probation
    Office has committed an error in preparing a presentence report
    that was not then caught by either the prosecution or defense
    counsel, treating the defendant's general concession that he has
    no objections and that the calculated Guidelines range is "correct"
    as a waiver of his right to challenge a subsequently identified
    error on appeal would undermine our law's distinction between
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    forfeiture and waiver.        Cf. Rosales-Mireles, 
    138 S. Ct. at 1907
    (emphasizing that the Court "'routinely remands' cases involving
    inadvertent or unintentional errors, including sentencing errors,"
    for plain error review (quoting Hicks v. United States, 
    137 S. Ct. 2000
    , 2000 (2017) (Gorsuch, J., concurring))); 
    id. at 1904
     (deeming
    it "unsurprising . . . that 'there will be instances when a
    district court's sentencing of a defendant within the framework of
    an incorrect Guidelines range goes unnoticed' by the parties as
    well, which may result in a defendant raising the error for the
    first time on appeal" (quoting Molina-Martinez v. United States,
    
    136 S. Ct. 1338
    , 1342-43 (2016))).
    In   any   event,    we   need    not   decide   whether   Romero's
    representations to the court amounted to waiver, for even if they
    did, we would excuse the waiver in the interest of justice.
    See United States v. Torres-Rosario, 
    658 F.3d 110
    , 116 & n.2 (1st
    Cir. 2011) (excusing waiver where it "would likely mean a much
    longer and arguably unjustified [prison] term" for the defendant
    and "there is no reason to think that the government would be
    unfairly prejudiced by reopening the issue").              In this case, all
    parties involved -- the Probation Office, the prosecution, and
    defense counsel -- simply missed the significance of Application
    Note 3 to U.S.S.G. § 2L1.2.          As a result, Romero's Guidelines
    range, which the court expressly took into account at sentencing,
    was more than a year higher than it should have been. In addition,
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    the   government   acknowledges   that     it    "would   not   be   unfairly
    prejudiced    if   Romero's   sentencing    were     reopened."      Because
    resentencing will occur before the same judge, there is no risk of
    any gain by strategic sandbagging.              Under these circumstances,
    resentencing is clearly warranted. Accordingly, the judgment is
    Vacated and Remanded.
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Document Info

Docket Number: 17-1702P

Judges: Lynch, Kayatta, Barron

Filed Date: 7/18/2018

Precedential Status: Precedential

Modified Date: 10/19/2024