United States v. Bruno-Cotto ( 2024 )

United States Court of Appeals
For the First Circuit
No. 23-1224
UNITED STATES OF AMERICA,
Appellee,
v.
DOMINGO EMANUEL BRUNO-COTTO,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Pedro A. Delgado-Hernández, U.S. District Judge]
Before
Gelpí, Montelcalvo, and Aframe,
Circuit Judges.
Isabelle C. Oria Calaf, on brief for the appellant.
Gabriella S. Paglieri, with whom W. Stephen Muldrow, United
States Attorney, Mariana E. Bauzá-Almonte, Assistant United States
Attorney, Chief, Appellate Division, were on brief, for appellee.
October 22, 2024
AFRAME, Circuit Judge. Defendant Domingo Emmanuel
Bruno-Cotto pleaded guilty to two counts of carjacking and one
count of kidnapping based on his participation in a multi-day crime
spree. Concluding that Bruno-Cotto's conduct, which included
multiple sexual assaults against the same victim, demonstrated
unusual cruelty, the district court imposed a 208-month sentence,
twenty months above the advisory guideline range.
On appeal, Bruno-Cotto contends that the sentence was
procedurally flawed on the ground that the district court used
unreliable hearsay to assess his conduct. He also argues that the
sentence was substantively unreasonable because it was longer than
the sentence imposed on his co-defendant, Randy Rivera-Nevaréz,
and because it did not adequately account for certain mitigating
factors. We affirm.
We describe the facts as set forth in the plea agreement
and uncontested presentence report. United States v. Spinks, 63
F.4th 95, 97 (1st Cir. 2023) (citing United States v. Ubiles-
Rosario, 867 F.3d 277, 280 n.2 (1st Cir. 2017)).
Early on August 23, 2019, an Uber driver went to retrieve
passengers in Toa Baja, Puerto Rico. There, Bruno-Cotto and two
confederates, including Rivera-Nevaréz, met the driver with guns.
Bruno-Cotto gave orders to the driver and sat in the backseat. He
asked the driver if he had any money, and the driver handed over
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his wallet. Bruno-Cotto then told the driver to proceed to a
restaurant and park behind a tree. There, Bruno-Cotto pointed a
long gun at the driver and demanded that the driver show him how
to use the Uber application on the driver's cellphone. Bruno-
Cotto then released the driver after taking his phone. He warned
the driver that he had people in the area who would kill him if he
reported to the police. Bruno-Cotto and his confederates left in
the driver's car.
Later the same day, Bruno-Cotto and the others involved
in the Uber carjacking received a request for a ride on the
driver's Uber application. They met the passenger, who needed a
ride to the airport, while Bruno-Cotto hid in the trunk. En route
to the airport, Bruno-Cotto and his partners brandished firearms
and announced an assault. They demanded that the passenger
relinquish his ATM PIN number before taking his ATM card and money.
After completing the assault and robbery, Bruno-Cotto and his
confederates abandoned the passenger at a restaurant in Isla Verde.
Two days later, on the evening of August 25, 2019, Bruno-
Cotto, Rivera-Nevaréz, and Rivera-Nevaréz's wife, Julianie
Rijos-Rivera, went searching for someone to rob at the Balenario
Costa de Oro beach in Dorado. On the way to the beach, the three
stopped at a gas station, where Bruno-Cotto purchased condoms which
"he placed in his man bag."
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Once at the beach, Bruno-Cotto and Rivera-Nevaréz told
Rijos-Rivera to remain in the car. Bruno-Cotto, carrying a black
rifle, and Rivera-Nevaréz, carrying a silver pistol, proceeded to
walk the beach in search of their victims. They came across a man
and woman swimming in the ocean. Bruno-Cotto took a wallet,
cellphone, and set of keys left behind on the beach. When the man
and woman emerged from the water, Bruno-Cotto and Rivera-Nevaréz
ordered them to the ground. Bruno-Cotto then told the woman to
come with him and, at gun point, instructed her to take off her
clothes. Bruno-Cotto forced the woman to perform various sexual
acts, including oral and anal sex.
After the assaults, the woman dressed and Rivera-Nevaréz
took her to the ocean to wash off. While the woman was washing,
Rivera-Nevaréz asked her if she wanted to have sex. The woman
declined. Bruno-Cotto then returned, ordered the woman to disrobe
for the second time, and sexually assaulted her again, after which
she was sexually assaulted by Rivera-Nevaréz. Following these
sexual assaults, Bruno-Cotto and Rivera-Nevaréz maced the male
victim in the face before leaving the beach in the couple's car.
Bruno-Cotto, Rivera-Nevaréz, and Rijos-Rivera drove from the beach
to a local gas station to withdraw funds from the woman's bank
account using an ATM card that Bruno-Cotto had stolen from her.
The woman was later diagnosed with post-traumatic stress disorder
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and suffers from anxiety and paranoia. Bruno-Cotto was arrested
the day after this incident.
Bruno-Cotto pleaded guilty to one count of carjacking
for the Uber-driver incident, 18 U.S.C. § 2119(1); one count of
kidnapping for the airport-passenger incident, 18
U.S.C. § 1201(a)(1); and one count of carjacking resulting in
serious bodily injury for the beach incident, 18 U.S.C. § 2119(2).
In the plea agreement, Bruno-Cotto agreed that he faced a total
offense level of 34 under the Sentencing Guidelines. Because
Bruno-Cotto was a criminal history category I, he faced an advisory
guideline range of 151 to 188 months of imprisonment.
In its sentencing memorandum, the government requested
a high-end guideline sentence of 188 months based on its view that
Bruno-Cotto was the most culpable of the co-defendants. In this
regard, the government noted that Bruno-Cotto was the one who gave
the orders to the Uber driver and airport passenger during the
August 23 offenses and planned the sexual assaults for the August
25 offense, as demonstrated by his purchasing condoms at the gas
station on the way to the beach. The government also highlighted
Bruno-Cotto's conduct in instructing the female victim to remove
her clothes at gunpoint and perform sexual acts on him.
Bruno-Cotto, in his sentencing memorandum, did not
contest any of the facts in the presentence report describing the
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offenses. Instead, he described a difficult childhood in which he
observed his father abuse his mother and his parents' substantial
drug use. These events caused Bruno-Cotto to suffer severe
depression, which included attempted suicides. Based on these
mitigating factors, Bruno-Cotto requested a sentence of 151
months, the low end of the applicable guideline range.
At the sentencing hearing, the government reiterated its
written request for 188 months based on its view that Bruno-Cotto
"took a front and center role in each of the three events that he
has been charged with and that he was convicted of." For his part,
Bruno-Cotto again focused on his difficult childhood and resulting
mental health issues. Bruno-Cotto said that whether he was "the
biggest culprit" was "a matter of interpretation," but he was not
"going to get into those details because it doesn't really matter
at this point of the game."
The district court adopted the uncontested presentence
report calculation that Bruno-Cotto faced an advisory guideline
range of 151 to 188 months of imprisonment. The court concluded,
however, that a sentence above the guideline range was warranted.
In this regard, the court explained:
Having considered the facts of this case, and
particularly [Bruno-Cotto's] actions and
cruelty, a sentence outside of the guideline
range is warranted. The Court is not
neglecting to balance the defendant's personal
circumstances, yet [Bruno-Cotto] acted at all
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times in control and with clear intent of
accomplishing his objectives.
To support this conclusion, the district court
highlighted that Bruno-Cotto gave orders to the Uber driver,
including threatening to kill the driver if he did not comply;
jumped over the seat and pointed a rifle at the airport passenger;
and stopped on the way to the beach to obtain condoms before
committing multiple "heinous" sexual assaults against the female
victim. The court summarized Bruno-Cotto's conduct as falling
outside the guideline heartland because he showed no "hesitation
or empathy" and exhibited "cruelty in twice sexually assaulting
the female victim." The court also emphasized the enduring
traumatic impact of the sexual assaults on the female victim,
observing that she will "most likely relive" the serious harm
caused by Bruno-Cotto "for the rest of her life." Therefore, the
court imposed a 208-month sentence, twenty months above the
guideline recommendation.
Bruno-Cotto objected to the sentence on two grounds.
First, he claimed that his sentence created an unwarranted
disparity with Rivera-Nevaréz's 188-month sentence. Second, more
generally, he argued that the sentence imposed was substantively
unreasonable. The district court overruled both objections.
Bruno-Cotto's lead argument on appeal is a claim he did
not preserve in the district court. He says that the district
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court's conclusion that he was at "all times in control" during
the offenses was based on hearsay statements from the victims and
co-defendants which appeared in the presentence report. He
contends that these statements were unreliable, and that the
district court therefore should not have considered them in
determining his sentence.
The government counters that Bruno-Cotto waived his
challenge to the district court's reliance on the hearsay
statements in the presentence report because he failed to object
to the information included in the report despite having ample
opportunity to do so. Thus, the government contends that we should
not consider his hearsay claim even for plain error.
For a defendant to waive a claim such that it will
receive no appellate consideration, the record must show that the
defendant intended to forgo a known right. United States v. Eisom,
585 F.3d 552, 556 (1st Cir. 2009) (citing United States v. Olano,
507 U.S. 725, 733 (1993), and United States v. Rodriguez, 311 F.3d
435, 437 (1st Cir. 2002)). But where the record reveals only a
failure to bring forth a claim because of "something less
deliberate" such as "oversight, inadvertence, or neglect in
asserting a potential right," the defendant has only forfeited the
claim. Id. (citing United States v. Staples, 202 F.3d 992, 995
(7th Cir. 2000)). A forfeited claim will be considered on appeal
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but only for plain error. Id. (citing Olano, 507 U.S. at 733-34,
and Rodriguez, 311 F.3d at 437).
The record does not show that Bruno-Cotto intended to
forgo a known right by failing to raise a hearsay objection to
information contained in the presentence report. To be sure, he
filed no objections to the report and did not raise any objections
at the sentencing hearing. But there is nothing to suggest that
he made a conscious decision to forego a hearsay objection rather
than failing to appreciate the potential issue. Absent evidence
of an "intention to forego" the hearsay objection, we will deem
the objection forfeited and review it only for plain error.1 See
Eisom, 585 F.3d at 556.
To meet the plain error standard, Bruno-Cotto must show
that there was a clear or obvious error which affected his
substantial rights and seriously impaired the fairness, integrity,
or public reputation of judicial proceedings. United States v.
Rondón-García, 886 F.3d 14, 20 (1st Cir. 2018) (quoting United
1 The government misreads United States v. Fox, 889 F.2d
357, 359-60 (1st Cir. 1989), to hold that the defendant waived a
hearsay claim simply by not objecting to the presentence report.
While Fox says that such a claim "will not be addressed for the
first time on appeal," id. at 359 (quoting United States v. Curzi,
867 F.2d 36, 44 (1st Cir. 1989)), it then proceeds to provide an
explanation for why the argument would fail on the merits, see id.
at 359-60. In accord with the distinction set out above between
waiver and forfeiture, the better reading of Fox is that it
subjected the hearsay claim to plain error review because waiver
would have meant no appellate consideration at all.
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States v. Cortés-Medina, 819 F.3d 566, 569 (1st Cir. 2016)). The
standard "is not defendant-friendly." United States v. Takesian,
945 F.3d 553, 562 (1st Cir. 2019) (quoting United States v.
Rodríguez-Soler, 773 F.3d 289, 294 (1st Cir. 2014)).2
Bruno-Cotto has not met the plain error standard because
he has not demonstrated that the district court committed a clear
or obvious error in relying on the hearsay information contained
in the presentence report. Because the Federal Rules of Evidence
and the Sixth Amendment right to confront witnesses do not apply
at a sentencing hearing, the district court "has broad discretion
to accept hearsay evidence at sentencing so long as the court
supportably concludes that the information has sufficient indicia
of trustworthiness to warrant a finding of probable accuracy."
United States v. Rodriguez, 336 F.3d 67, 71 (1st Cir. 2003).
Because Bruno-Cotto did not object to any of the
information in the presentence report, the question distills to
whether there was some information before the district court which
2 The government makes a second waiver argument. It says
that, even assuming plain error review applies, Bruno-Cotto waived
the claim because he did not sufficiently develop an argument on
how the record shows that he meets the plain error standard. In
support of this argument, the government cites United States v.
Pabon, 819 F.3d 26, 34 (1st Cir. 2016). However, there we noted
that the defendant did not "anywhere cite the four-factor [plain
error] test." Id. Here, in contrast, Bruno-Cotto does mention
the test and, while his brief does not address the factors one by
one, read as a whole, the argument is adequately developed to at
least forestall waiver.
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was so apparently unreliable that the court plainly erred by not
sua sponte disregarding it. There was not. The statements by
Rivera-Nevaréz and Rijos-Rivera implicated them in criminal
activity, which is an indicium of reliability. See Fed. R. Evid.
804(b)(3). Moreover, the statements by the man and woman
victimized by Bruno-Cotto and Rivera-Nevaréz on the beach
generally were consistent with each other and included nothing
that cast doubt on the statement that Bruno-Cotto had purchased
condoms at the gas station before heading to the beach, where he
committed the multiple sexual assaults. Finally, Bruno-Cotto
admitted to some of the key information in the presentence report
which came originally from the victims and co-defendants,
including that Bruno-Cotto pointed a gun at the airport passenger
during the August 23 kidnapping and assaulted the woman and sprayed
mace in the man's face during the August 25 carjacking.
Bruno-Cotto now says that the victims' statements were
too vague to consider and that Rivera-Nevaréz and Rijos-Rivera's
statements should be disregarded because, given their romantic
relationship, they had an incentive to foist the blame on him to
minimize their own culpability. Those are arguments Bruno-Cotto
could have made before the district court to try to undermine the
reliability of certain statements in the presentence report. But
those arguments are not so obvious and apparent that the district
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court was required to act on them sua sponte. In short, belated
claims of unreliability that, at best, may or may not have
succeeded if timely raised, do not establish the clear or obvious
error necessary to prevail on plain error review.
We turn next to Bruno-Cotto's substantive reasonableness
claims. These arguments were preserved and so our review is for
abuse of discretion. See United States v. Crocco, 15 F.4th 20, 25
(1st Cir. 2021) (citing United States v. Arsenault, 833 F.3d 24,
28 (1st Cir. 2016)). A sentence is substantively reasonable so
"long as it rests on 'a plausible sentencing rationale' and
reflects a 'defensible result.'" Arsenault, 833 F.3d at 34(quoting United States v. Perez, 819 F.3d 541, 547 (1st Cir.
2016)).
Bruno-Cotto's first contention is that the sentence was
substantively unreasonable because the district court sentenced
him to twenty more months in prison than Rivera-Nevaréz. Bruno-
Cotto says that there was no reason to sentence him more harshly
than Rivera-Nevaréz since both men signed plea agreements
containing identical facts.
One sentencing consideration is "the need to avoid
unwarranted sentencing disparities among defendants with similar
records who have been found guilty of similar conduct." 18
U.S.C. § 3553(a)(6). A sentence can be substantively unreasonable
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where the same judge imposes different sentences on "two
identically situated defendants." United States v. Diaz-Serrano,
77 F.4th 41, 48 (1st Cir. 2023) (quoting United States v.
Reyes-Santiago, 804 F.3d 453, 467 (1st Cir. 2015)). But, for a
sentence to be unreasonable on this basis, the two defendants must
be indistinguishable in every meaningful respect that could
influence the court's sentencing decision. See id. (citing United
States v. Gonzalez, 981 F.3d 11, 23 (1st Cir. 2020)). For this
reason, we have rejected substantive reasonableness arguments
where one co-defendant played more of a leadership role than the
other or where the facts in the presentence report show differences
in conduct that support varying degrees of culpability. See, e.g.,
id. at 48-49.
The presentence report demonstrates material differences
between Bruno-Cotto's and Rivera-Nevaréz's conduct. Most
prominently, the presentence report indicates that Bruno-Cotto
repeatedly assaulted the female victim on the beach whereas
Rivera-Nevaréz assaulted her once. That difference alone is enough
to support Bruno-Cotto's longer sentence. In addition, the record
evidence supports that, at times, Bruno-Cotto assumed more of a
leadership role than Rivera-Nevaréz.3 In this regard, the district
3 Bruno-Cotto now says he cannot be penalized for having
more of a leadership role because he did not receive an upward
role-in-the-offense adjustment under the Sentencing Guidelines.
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court correctly noted that, during the carjacking of the Uber
driver, Bruno-Cotto was the one who gave orders and threatened the
driver with a gun until the driver taught him how to use the Uber
application. These distinctions justify the district court
imposing a longer sentence on Bruno-Cotto.
Bruno-Cotto's final contention is that his sentence is
too long -- and therefore substantively reasonable -- because, in
selecting the sentence, the district court did not adequately
account for mitigating factors, including his lack of prior
criminal history and mental health diagnosis. But the district
court did note these considerations: it recognized Bruno-Cotto's
low criminal history category, his "dysfunctional upbringing," and
his "history of mental health conditions." The district court
concluded that, even after accounting for Bruno-Cotto's "personal
circumstances," a sentence above the guideline range was warranted
because "[t]he guidelines do not contemplate the dangers of [the]
defendant, who harmed various victims within . . . days."
The district court acted within its discretion in
sentencing Bruno-Cotto above the guideline range in these
U.S.S.G. § 3B1.1. But the question here is not whether he should
have received a guideline enhancement as a leader; the question is
only whether his conduct demonstrated a comparably larger
leadership role than Rivera-Nevaréz such that the district court
could rely on that difference to impose varying sentences
consistent with 18 U.S.C. § 3553(a)(6). See Gonzalez, 981 F.3d at
23.
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circumstances. Bruno-Cotto's conduct, which included multiple
sexual assaults on the same woman, was appropriately described by
the district court as "heinous." Given his egregious conduct, it
is apparent that the court gave weight to the mitigating factors
in selecting the sentence because the serious offense
characteristics present here likely could have supported a longer
sentence than the one imposed. Cf. United States v. Santiago
Lozada, 75 F.4th 285, 295-96 (1st Cir. 2023) (affirming as
substantively reasonable an upward variance based on convictions
for multiple carjacking offenses).
Affirmed.
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