United States v. Morales-Cortijo ( 2023 )


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  •           United States Court of Appeals
    For the First Circuit
    No. 19-1523
    UNITED STATES,
    Appellee,
    v.
    NESTOR MORALES-CORTIJO,
    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
    Kayatta, Thompson, and Gelpí,
    Circuit Judges.
    Rick Nemcik-Cruz for appellant.
    Thomas F. Klumper, Assistant United States Attorney, with
    whom Mariana E. Bauzá-Almonte, Assistant United States Attorney,
    and W. Stephen Muldrow, United States Attorney, were on brief, for
    appellee.
    April 14, 2023
    THOMPSON, Circuit Judge.        After pleading guilty to one
    count under 
    18 U.S.C. §§ 2
    , 924(c)(1)(A)(ii) (using a firearm
    during a crime of violence; here, a carjacking), Nestor Morales-
    Cortijo   (Morales)   received    a   108-month   sentence -- 24     months
    longer than the federal sentencing guidelines recommend -- and a
    special condition upon his release that required him to receive
    psychotherapy     services   at   the     direction    of   the   probation
    department.     He now appeals, asserting that his above-guidelines
    sentence was procedurally unreasonable and that the sentencing
    judge erred by delegating to probation the authority to decide
    when his mandated therapy could stop.         Having failed to preserve
    both arguments below, Morales must meet the exacting plain error
    standard, which we conclude he has not met.           So, we affirm.
    Background
    Because Morales's sentencing appeal follows a guilty
    plea, we glean the relevant facts from the undisputed presentence
    report (PSR), the plea agreement,           and the    transcript   of the
    sentencing hearing.1    See United States v. González, 
    857 F.3d 46
    ,
    52 (1st Cir. 2017).
    The Crimes
    This case involves two carjackings that occurred within
    minutes of each other, following a gang shootout, in the town of
    1 Below, Morales did not challenge the PSR at all, nor did he
    raise any objection to the district court's recitation of the facts
    - 2 -
    Loíza, Puerto Rico. We start with the initial altercation. Around
    4:30 PM on April 27, 2017, two rival gangs shot each other up --
    their weapons of choice included rifles and pistols.   One gang was
    riding in a gold Lexus, but once the car was struck with and
    damaged by bullets, the individuals got out and fled on foot
    towards a nearby house, about two houses from the scene of the
    shootout, where they found a blue Toyota Prius parked outside.
    At the house, two adults and their two children had just
    heard the nearby gunshots.   The mother took the children to hide
    in a bedroom while the father attempted to shut the front door.
    The father noticed one individual (Unsub #1)2 standing outside the
    front door with a rifle and at least three near the family's parked
    Prius.   One of the gang members demanded the Prius key from the
    father, who gave it up, and the crew then got in the car.   Unable
    to tell whether the Prius had started, the crew got out and fled
    on foot, entering and passing through the house, out the back door
    and over a back wall, with trails of blood marking their escape
    path throughout.   Police officers responding to the shootout would
    later follow that blood trail to a neighboring property where they
    at his sentencing hearing. In the normal course, we'd also look
    to the facts established at the change-of-plea hearing, see
    González, 
    857 F.3d at 52
    , but the record here does not contain any
    transcript from that proceeding.
    2 The PSR does not name any of the individuals involved in
    carjacking number one, but rather labels them "unsubs," shorthand
    for unknown subjects.
    - 3 -
    found and arrested one of the assailants, who was bleeding from
    his left arm, holding a loaded rifle and strapped with more
    ammunition.
    On to carjacking number two.         Shortly after the initial
    shootout       and   the   Prius    carjacking,    four      armed   individuals
    approached a green Mitsubishi Lancer driving in Loíza and demanded
    that the owner get out of her car, pointing their weapons right at
    her.       She complied and, as the four got into the Lancer, observed
    that the front passenger (Unsub #1) was bleeding from a right arm
    wound.       The Lancer's owner saw that the one front and two rear
    passengers carried pistols, while the driver (later identified as
    Morales) had a rifle.3             About five minutes after hearing the
    shootout, a witness (let's call them Witness A) saw the Lancer
    driving down a dead-end street behind the Jardínes de Loíza housing
    project and observed Morales and the front passenger exit the car.
    Witness A saw Morales hop a fence toward the housing project; the
    front      passenger   attempted    the   same    maneuver    but    appeared   to
    collapse near the vehicle due to his injuries.
    Police officers had begun to chase after the Lancer
    shortly after it was stolen.           One of the officers who worked in
    Loíza -- therefore familiar with Morales, we gather -- identified
    Morales as the driver.         Officers caught up to the Lancer after
    Additionally, Morales later admitted as part of his plea
    3
    agreement that he got into the driver's seat of the Lancer.
    - 4 -
    Morales had hopped the fence and run away, but arrested the front
    passenger, José Vázquez Millán, next to the Lancer after observing
    him throw two pistol magazines away.            Millán was injured and
    bleeding from his arm.        Police also noticed blood stains on the
    rear passenger seat of the Lancer.         A few days later, the FBI
    interviewed Witness A, who provided agents a physical description
    of the driver.    Later, Witness A was shown a photo lineup and, in
    a signed statement, identified the driver as Morales.
    The Legal Proceedings
    A grand jury indicted Morales and Millán on May 4, 2017,
    charging Morales with one count of carjacking (the Lancer), see 
    18 U.S.C. § 2119
     (Count One), and one count of using a firearm during
    a   crime    of    violence     (the   Lancer   carjacking),   see   
    18 U.S.C. §§ 2
    , 924(c)(1)(A)(ii) (Count Two).        Per a plea agreement,
    Morales pleaded guilty to Count Two of the indictment and the
    government agreed to drop Count One.         As part of the agreement,
    the parties recommended the statutorily required minimum sentence
    of 84 months.     See U.S.S.G. § 2K2.4(b).
    At sentencing, the district court expressed that she was
    troubled by "the entire scenario" related to Morales's offense --
    that is, not just by the Lancer carjacking underlying Count Two,
    but also by the shootout between two rival gangs (inferring that
    Morales belonged to one of them) and the Prius carjacking, all of
    which victimized several innocent bystanders (some of whom were
    - 5 -
    children).       Accordingly, the court questioned whether Morales
    deserved the recommended guideline sentence of 84 months, given
    the "astonishing" nature of the "relevant conduct," the shootout
    and carjackings that she described as occurring in broad daylight,
    among the public, and using "heavy weapons."                The court noted that
    the "use of weapons" here contributed to a high crime rate in
    Puerto Rico.        As a mitigating factor, the court considered that
    Morales    turned     himself      in.      Ultimately,     the    district     court
    sentenced Morales to 108 months in prison and five years of
    supervised release.         Morales's supervised release included, among
    other conditions, that Morales must participate in "transitional
    and re-entry support services, including cognitive behavioral
    treatment services," supervised by probation (moving forward, we
    call     this   the      "Therapy     Condition"),        "until    satisfactorily
    discharged by the service provider, with the approval of the
    probation officer."
    This appeal followed.
    Discussion
    Morales       raises    two    issues    on    appeal.      First,     he
    challenges the procedural reasonableness of his sentence, arguing
    that the district court's rationale for the upward variance of 24
    months    relied    on    weak     evidentiary     support.        Second,   Morales
    contends     that     the   district       court    improperly      delegated    its
    sentencing      authority    to     probation      when   imposing    the    Therapy
    - 6 -
    Condition, since probation, not the court, had the final say about
    when Morales completed treatment.
    Morales concedes that he raised neither argument below,
    so we review both issues for plain error, a "steep climb" for
    Morales to make.           See United States v. Alejandro-Rosado, 
    878 F.3d 435
    ,       439   (1st   Cir.   2017)   (procedural    reasonableness);   United
    States v. Padilla, 
    415 F.3d 211
    , 218 (1st Cir. 2005) (en banc)
    (condition of supervised release).               To get there, he must show
    "(1) that an error occurred (2) which was clear and obvious and
    which not only (3) affected his . . . substantial rights, but also
    (4)    seriously        impaired   the    fairness,    integrity,   or   public
    reputation of judicial proceedings."              Alejandro-Rosado, 
    878 F.3d at 439
     (citations omitted).              Before addressing each issue, we'll
    cut to the chase:          Morales has not shown plain error for either.
    Procedural Reasonableness
    Morales cries foul at the district court's reliance on
    relevant         conduct   surrounding     his   use-of-a-firearm   charge   to
    justify an upwardly variant sentence.4               He argues that there was
    insufficient evidence in the PSR of his participation in what the
    4Where, as here, the "application of the sentencing
    guidelines yields a singular guideline sentence rather than a
    guideline sentencing range -- a sentence in excess of the guideline
    sentence should be treated as an upward variance." United States
    v. Bermúdez–Meléndez, 
    827 F.3d 160
    , 164 (1st Cir. 2016).        So,
    Morales's 108-month sentence is "the functional equivalent of an
    upward variance" of 24 months from the 84-month guideline sentence.
    See id.; U.S.S.G. § 2K2.4(b).
    - 7 -
    court determined were related events and, to the extent the court
    did articulate evidence from the PSR to make her findings, she
    mischaracterized that evidence.        Specifically, Morales takes issue
    with the court:      (1) placing him at the shootout; (2) placing him
    at the Prius carjacking; and (3) conflating his possession and use
    of a pistol with rifles.       After some legal background, we address
    each fact-based argument in turn.
    We start by explaining the difficulty of Morales's task
    at hand.   Since he made no "specific, supported challenges" to the
    PSR   below,    Morales   cannot    dispute    the    facts    therein      through
    rhetorical aspersions, nor can he take issue with the PSR's
    determination that the shootout and the Prius carjacking was
    conduct relevant to what he ultimately pleaded guilty (a single
    firearm charge for the Lancer carjacking).                See United States v.
    Cox, 
    851 F.3d 113
    , 121, 124 (1st Cir. 2017); see also United States
    v.    González-Rodríguez,     
    859 F.3d 134
    ,    137     (1st   Cir.    2017)
    (explaining that failure to object to facts in PSR constitutes
    admission of those facts).         Morales is therefore left arguing that
    the district court's rationale lacked evidentiary support from, or
    misstated facts in, the PSR itself.           But he failed to develop any
    such argument below.         "The plain-error bar for challenging a
    district       court's    factual     findings       is     especially      high."
    United States v. González-Andino, 
    58 F.4th 563
    , 568 (1st Cir.
    2023). Because Morales's claimed error "turns on a factual finding
    - 8 -
    [he] neglected to ask the district court to make, the error cannot
    be clear or obvious unless he shows that the desired factual
    finding is the only one rationally supported by the record below."
    
    Id.
     (cleaned up).
    Given that standard, Morales must convince us that the
    PSR only rationally supported a finding that he was not present at
    the shootout or the Prius carjacking, or that he never used a
    rifle.   See 
    id.
        Problem is, the PSR belies his desired view of
    the facts.
    We begin with Morales's presence at the shootout.           The
    unchallenged PSR explicitly stated that Morales had a shotgun scar
    on his arm "as a result of the shootout he was involved [in] during
    the instant offense," so Morales functionally admitted to being
    present there.      See González-Rodríguez, 
    859 F.3d at 137
     (not
    challenging the PSR's facts functions as admitting them).             And
    Morales conceded in his brief that he "was in the company of three
    others who did participate in the shootout."
    We   move   next   to   Morales's   presence   at   the   Prius
    carjacking.    The district court reasonably inferred from the
    unchallenged PSR that the same individuals who fled the shootout
    also entered and abandoned the Prius after not knowing whether it
    had started, then carjacked the Lancer right after. The PSR stated
    that "[s]hortly after the UNSUBS fled the scene of the first
    carjacking, Victim 3 was in her [Lancer] . . . when she observed
    - 9 -
    at least four armed UNSUBS approach her vehicle," and that "Unsub
    #2" (later identified as Morales) was present at both carjackings.
    Moreover, the individuals at both carjackings left blood trails
    from their gunshot wounds, first in and around the house where the
    Prius was parked and second all over the Lancer's interior,
    suggesting it was the same injured crew.
    On   to   Morales's   pistols   and   rifles   argument.   The
    unchallenged PSR states that the Lancer's owner identified Morales
    as carrying a rifle when he got in the driver's seat of the Lancer,
    and Morales later admitted to driving the Lancer.           The district
    court otherwise accurately stated the PSR's description of those
    in Morales's crew that possessed rifles and additional magazines
    of ammunition, and from our review of the PSR and the sentencing
    transcript, the district court, contrary to Morales's assertions,
    never directly attributed rifle possession to Morales (even though
    the record would have supported such a finding).5
    Therefore, the district court's factfinding was well-
    supported by the PSR, and Morales has failed to demonstrate any
    factfinding to the contrary.       So, we find no plain error, and
    5 To the extent Morales takes issue with the district court's
    rhetorical characterization of the weapons used during these three
    events as "heavy weapons," we see no plain error here. Morales
    himself admits the weapons included "common military rifle[s],"
    and the PSR establishes that multiple individuals carried these
    rifles and additional magazines of ammunition.
    - 10 -
    reject Morales's contentions that faulty factfinding made his
    upwardly variant sentence procedurally unreasonable.6
    Delegation of Supervised Release Condition
    For his second claimed error (also getting the plain-
    error    treatment),   Morales   contends   that   the    district   court
    improperly delegated its sentencing authority when imposing the
    Therapy Condition because his participation in that court-mandated
    program was for an "unspecified frequency and duration," thus
    empowering the probation officer to decide whether and for how
    long he must stay in treatment.7
    Before assessing Morales's claim, it would be helpful to
    give it some legal context.        Article III of the Constitution
    prohibits federal courts from delegating to nonjudicial officers
    (such as probation) their core judicial function, including the
    imposition of conditions of supervised release.          See United States
    6 Finding no plain error with the crux of the district court's
    relevant conduct factfinding, Morales's more granular factual
    quibbles with the district court's recitation of the PSR's facts
    at sentencing (e.g., misstating the distance between buildings
    near the Lancer carjacking) do not move us.      Even assuming the
    district court misstated or exaggerated these relatively minor
    facts, Morales cannot show a different outcome given our
    conclusions above.
    7 Recall the Therapy Condition stated, "The defendant shall
    participate in transitional and re-entry support services,
    including cognitive behavioral treatment services under the
    guidance and supervision of the probation officer. The defendant
    shall remain in the services until satisfactorily discharged by
    the service provider, with the approval of the probation officer."
    - 11 -
    v. Allen, 
    312 F.3d 512
    , 515-16 (1st Cir. 2002); United States v.
    York, 
    357 F.3d 14
    , 22 (1st Cir. 2004).             But that prohibition does
    not extend to courts "using nonjudicial officers," like probation
    officers, "to support judicial functions, as long as [the court]
    retains and exercises ultimate responsibility."               Allen, 
    312 F.3d at 515-16
     (quoting United States v. Johnson, 
    48 F.3d 806
    , 809 (4th
    Cir. 1995)).     To determine whether a special condition violates
    this rule, we "distinguish between . . . delegations that merely
    task the probation officer with performing ministerial acts or
    support services" and those that permit the officer to "decide the
    nature or extent" of the punishment itself. United States v. Mike,
    
    632 F.3d 686
    , 695 (10th Cir. 2011).
    Here,      Morales    contends    that    the     Therapy   Condition
    offends this delicate constitutional balance because the probation
    officer   had    "final   authority      for   discharge      from    therapy."
    Morales's arguments, however, run right up against our precedent.
    In United States v. Allen, we took no issue with a nearly identical
    condition of supervised release that required the defendant to
    participate     in   mental    health   treatment     "as    directed   by   the
    probation officer, until such time as the defendant is released
    from the program by the probation officer."               See 
    312 F.3d at
    515-
    16. There, we reasoned that the delegation of authority was lawful
    because the court had merely delegated "administrative details" to
    the probation officer, while the court retained the ultimate
    - 12 -
    sentencing authority when it required Allen to undergo treatment
    in the first place.              See 
    id.
     at 516 (citing United States v.
    Peterson, 
    248 F.3d 79
    , 85 (2d Cir. 2001) ("If the district court
    intends that the therapy be mandatory but leaves a variety of
    details, including the selection of a therapy provider and schedule
    to the probation officer, such a condition of probation may be
    imposed.")).          As we later explained, "the probation officer in
    Allen    was    not    deciding    whether      the   defendant     had   to    attend
    counseling but how many sessions he had to attend."                  United States
    v. Meléndez-Santana, 
    353 F.3d 93
    , 101 (1st Cir. 2003) (vacating
    condition of release that empowered probation officer to decide
    whether defendant would have to undergo treatment), overruled in
    part on other grounds by United States v. Padilla, 
    415 F.3d 211
    (1st    Cir.    2005).     Here,       the    condition   imposed    by   the   court
    similarly required Morales to "participate in transitional and re-
    entry support services, including cognitive behavioral treatment
    services under the guidance and supervision of the probation
    officer,"      and     "remain    in    the    services    until    satisfactorily
    discharged by the service provider, with the approval of the
    probation officer."
    We are unpersuaded by Morales's various attempts to
    distinguish Allen and its progeny.
    First, Morales says the facts here are different.                   He
    claims that in Allen, unlike here, the record showed that the
    - 13 -
    defendant had a history of mental illness.         And he says that this
    case is different because here, the probation officer has the final
    decision to continue or discontinue treatment after the healthcare
    professional makes its recommendation.8
    Again, Allen stands in the way of Morales's contentions.
    To be sure, in Allen we relied upon "persuasive guidance" from
    other     circuits     "for     the     proposition        that   special
    conditions . . . should be evaluated in light of the facts of the
    case as reflected by the entire record."          Allen, 
    312 F.3d at
    516
    (citing Peterson, 
    248 F.3d at 85
    ; United States v. Kent, 
    209 F.3d 1073
     (8th Cir. 2000)).        Specifically, we noted that the Eighth
    Circuit   rejected   the   imposition   of   a   special   condition   that
    required the defendant to undergo mental health treatment "after
    examining the entire record" because it found that the "judge had
    stated outright that the parole officer would be the one to
    determine whether [the] defendant had to attend counseling," and
    "that the record did not demonstrate that the defendant had mental
    health problems."    
    Id.
     (citing Kent, 
    209 F.3d at 1075
    , 1078–79).
    8 Morales did not argue here or below that the Therapy
    Condition improperly delegates the question of when treatment
    should end to the service provider rather than to probation.
    Indeed, he questions whether the probation officer should have any
    say in the conclusion of treatment instead of entrusting that
    decision to "a trained health care professional." Nor did Morales
    argue that the condition fails to specify whether Morales could be
    required to continue therapy even beyond his term of supervised
    release. So, we don't address either point.
    - 14 -
    But we approved Allen's challenged condition, concluding that it
    was the court, not the probation officer, that imposed mental
    health treatment in the first place, and that the record contained
    sufficient evidence of Allen's mental illness and alcohol abuse,
    which further "indicate[d] that the court was imposing mandatory
    counseling . . . ."            Id.; see also Meléndez-Santana, 
    353 F.3d at 101
    .
    So too here.           The record makes clear that the court
    imposed the condition requiring Morales to participate in therapy
    "under the guidance and supervision of the probation officer."
    And the record also provides an overview of Morales's history of
    substance       abuse   that    supports   the      court's    imposition    of   the
    condition -- prior to his arrest, Morales was taking about fifteen
    painkillers a day.        See United States v. Siegel, 
    753 F.3d 705
    , 716
    (7th Cir. 2014) (concluding that cognitive behavioral therapy is
    a proper condition to impose on a defendant with a history of
    substance abuse).
    Second,      Morales      asserts       that    our   case      law   has
    "curtailed" Allen's reach.9            Morales refers specifically to our
    holding    in    Meléndez-Santana      that     a   court     cannot   delegate   to
    In fact, we have since relied upon Allen to uphold conditions
    9
    of supervised release delegating administrative details of mental
    health treatment programs to the probation officer. See United
    States v. Chan, 
    208 F. App'x. 13
    , 16 (1st Cir. 2006); York, 
    357 F.3d at 21
    .
    - 15 -
    probation the maximum number of drug tests that a defendant on
    supervised release must undergo, so by that "same logic" the trial
    court here must specify the number of therapy sessions Morales
    must undergo.
    We disagree.    Morales's argument compares apples to
    oranges.    In   Meléndez-Santana,   we   read   a   specific   statutory
    provision, not applicable here, that requires a court to order a
    defendant to "submit to a drug test within 15 days of release on
    supervised release and at least 2 periodic drug tests thereafter
    (as determined by the court) for use of a controlled substance."
    Meléndez-Santana, 
    353 F.3d at 101
     (quoting 
    18 U.S.C. § 3583
    (d)).
    We held that the specific "as determined by the court" language in
    the statute "requires courts to determine the maximum number of
    drug tests to be performed beyond the statutory minimum of three,
    with probation officers permitted to decide the number of tests to
    be performed within the range established by the court."          
    Id. at 106
    .   There is no similarly limiting statutory language here as to
    the number or duration of treatment sessions, only a requirement
    that the court specify which treatment it was ordering.           See 
    18 U.S.C. § 3563
    (b)(9) (permitting court to require a defendant to
    submit to "psychological treatment . . . as specified by the
    court"); 
    18 U.S.C. § 3583
    (d)(3) (applying section 3563(b) to
    supervised release).
    - 16 -
    Our reasoning in Allen applies with equal force to the
    delegation here, and Morales has not shown any plain error on the
    district court's part in imposing the Therapy Condition.10
    Conclusion
    For the reasons stated above, we affirm.
    10As we've noted before in this context, defendants are "not
    without recourse should the probation officer abuse the discretion
    delegated to [them]." United States v. Mercado, 
    777 F.3d 532
    , 537
    (1st Cir. 2015). They may move the district court "at any time
    prior to the conclusion of a supervised release term [to] 'modify,
    reduce, or enlarge the conditions of supervised release.'" 
    Id.
    (quoting 
    18 U.S.C. § 3583
    (e)(2)).
    - 17 -