United States v. Ramos-Gonzalez

United States Court of Appeals
For the First Circuit
Nos. 12-1610, 13-1263
UNITED STATES OF AMERICA,
Appellee,
v.
CRUZ ROBERTO RAMOS-GONZÁLEZ,
Defendant, Appellant.
APPEALS FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. José Antonio Fusté, U.S. District Judge]
Before
Torruella and Lipez, Circuit Judges
and Gelpí,* District Judge.
Linda Backiel for appellant.
Dina Ávila-Jiménez, Assistant United States Attorney, with
whom Rosa Emilia Rodríguez-Vélez, United States Attorney, Nelson
Pérez-Sosa, Assistant United States Attorney, Chief, Appellate
Division, and Juan Carlos Reyes-Ramos, Assistant United States
Attorney, were on brief, for appellee.
January 6, 2015
*
Of the District of Puerto Rico, sitting by designation.
LIPEZ, Circuit Judge. Appellant Cruz Roberto Ramos-
González ("Ramos") was tried a second time on a drug trafficking
charge after this court concluded that his Sixth Amendment right to
confrontation had been violated at his first trial. See United
States v. Ramos-González, 664 F.3d 1, 2 (1st Cir. 2011). Ramos was
again convicted of possessing more than 500 grams of cocaine with
the intent to distribute the narcotic. He now raises numerous
challenges to that second conviction and the resulting 327-month
sentence. Although we find no reversible trial error, we conclude
that a remand for resentencing is necessary. In designating Ramos
as a career offender under the Sentencing Guidelines, the district
court relied on a predicate offense that does not -- on the record
before us -- qualify for that purpose. Hence, Ramos must be
resentenced without the career offender enhancement.
I.
A. Factual Background
The facts of the crime, as the jury could have found
them, are as follows. On July 4, 2002, two Puerto Rico police
officers on traffic duty attempted to stop a red pickup truck owned
by Ramos because the vehicle's windows were tinted darker than
permitted by law. The driver ignored the police car's siren and
flashing lights and sped away, with the officers, Javier Reyes-
Flores ("Reyes"), and Wanda Vélez-Mojica ("Vélez), in pursuit. The
truck soon crashed, and the driver exited the vehicle. After
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briefly looking at Reyes and raising his arms, the driver turned
and fled. Although Reyes pursued him over a fence, the driver
successfully avoided capture.
Meanwhile, back at the now-abandoned truck, Vélez had
found two plastic-wrapped blocks, subsequently determined to be
cocaine, on the driver's side floor. Among the other items found
in the vehicle were $1,068 in cash, traffic tickets issued to
Ramos, his Social Security card, plastic bags holding eighteen
bullets, some cellular phones, and two forms of identification with
photos of Ramos -- his driver's license and electoral card. Based
on the photos, Reyes identified Ramos as the driver who had fled.
Reyes also recognized Ramos as the same individual whom he had seen
on two other recent occasions when he was investigating a
motorcycle accident.1
B. Procedural Background
Ramos was initially prosecuted on drug charges by Puerto
Rico authorities, but the commonwealth proceedings ended at the
preliminary hearing stage with a finding of no probable cause. In
June 2007, about a week before the statute of limitations would
have expired on the 2002 episode, federal authorities filed an
indictment charging appellant with one count of possession with
intent to distribute more than 500 grams of cocaine. See 21 U.S.C.
1
Both times, Reyes saw Ramos accompanying the mother of a
young man who was injured in the accident.
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§ 841(a)(1). Appellant eluded arrest for two years, until April
2009, when he was taken into custody in the Dominican Republic.
Later that year, a jury found appellant guilty of the drug
trafficking crime, and he was sentenced to 327 months in prison.
This court vacated that conviction because of a violation of
appellant's Sixth Amendment right to confrontation, which occurred
when a chemist was allowed to testify about the results of a drug
analysis that he did not perform. See Ramos-González, 664 F.3d at
2.
Appellant was retried in early 2012. At that second
trial, he offered a new alibi defense: he had been at the beach
with several people, including the mother of one of his children,
on the day of the high-speed chase in 2002. In addition, he
presented a witness who identified someone else -- the witness's
brother, now deceased -- as the driver of Ramos's truck that day.
The jury nonetheless again found appellant guilty of the drug
possession charge.
At sentencing, the district court treated appellant as a
career offender based on two prior convictions under Puerto Rico
law. See U.S.S.G. § 4B1.1(a).2 One of the prior crimes -- a 1991
conviction for first-degree murder -- undisputedly qualifies as a
2
Section 4B1.1(a) applies career offender status to a
defendant, age eighteen or older, who commits a felony that is
either a crime of violence or a drug offense, and who "has at least
two prior felony convictions of either a crime of violence or a
controlled substance offense."
-4-
predicate offense for career offender purposes. The other
qualifying conviction was based on a paragraph in appellant's
Presentence Report ("PSR") listing a 1987 charge under Article 256
of the Puerto Rico Penal Code, which criminalized the "use[] [of]
violence or intimidation against a public official or employee."
See P.R. Laws Ann. tit. 33, § 4491 (1998).3 The paragraph also
included under the same date the notation "Dist. Cont. Substances,"
evidently describing a drug crime (i.e., distributing controlled
substances). In explaining this conviction, the PSR states:
"According to the judicial documents, on November 15, 1986, the
defendant possessed with the intent to distribute 2.68 grams of
cocaine. He further resisted the arrest by pushing and grabbing
one PRPD officer." The district court rejected appellant's
objection that the supporting documents were not "official."
The court's use of the career offender classification
resulted in a Base Offense Level ("BOL") of 34 and a Criminal
3
Puerto Rico's Penal Code was revised in 2004 and 2012, and
the current version of this provision is now codified as § 5335.
The earlier version of the statute provided, in relevant part:
Any person who uses violence or intimidation against a
public official or employee to compel him/her to perform
an act contrary to his/her duties or to omit an act
inherent to his/her office, or who, by the use of
violence or intimidation, offers resistance to said
official or employee in the performance of his/her
duties, shall be punished by [imprisonment or a fine, or
both].
P.R. Laws Ann. tit. 33, § 4491 (1998).
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History Category ("CHC") of VI, with a Guidelines sentencing range
of 262 to 327 months. Without career offender status, appellant
would have had a BOL of 30 and a CHC of V, with a Guidelines range
of 151 to 188 months. The district court imposed the high end of
the higher range, 327 months.
On appeal, Ramos asserts that his conviction must be
vacated and his indictment dismissed because he was denied due
process by the federal authorities' pre-indictment delay. He also
argues that the district court made multiple errors at trial,
including refusal to allow an alibi witness, rejecting a missing
witness instruction, and misleading the jury with its instructions
on possession. He further claims that his sentence is both
erroneously calculated and unreasonably harsh. Finally, he
maintains that the court should have dismissed the case against him
because of government misconduct.4
II.
We turn first to Ramos's claims relating to his
conviction, beginning with the two asserted problems that Ramos
says require dismissal of the charge against him.
4
The misconduct claim was asserted in a post-trial motion
that was submitted in April 2012 and denied in February 2013. A
separate appeal of that denial (No. 13-1263) was subsequently
consolidated with the previously filed appeal of the conviction and
sentence (No. 12-1610). This opinion therefore addresses both
appeals.
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A. Pre-indictment Delay
Shortly after this court vacated Ramos's original
conviction and remanded the case to the district court, Ramos filed
a renewed motion to dismiss the indictment on the ground that the
government's delay in filing the drug trafficking charge violated
his due process rights. He emphasized that the indictment had been
brought a week before the five-year limitations period would have
barred his prosecution, and the second trial would occur more than
nine years after the events at issue. Ramos complained that the
passage of time had eroded his ability to mount a vigorous defense
because of dimmed memories and the loss of witnesses and evidence.
The district court denied the motion with a docket order,
and we review that decision for abuse of discretion, United States
v. Bater, 594 F.3d 51, 53 (1st Cir. 2010).5 We have observed that
"excessive pre-indictment delay can sometimes, albeit rarely,
violate the Fifth Amendment's Due Process Clause if the defendant
shows both that the 'delay caused substantial prejudice to his
right to a fair trial' and that 'the [g]overnment intentionally
delayed indictment . . . to gain a tactical advantage.'" Id. at 54
(quoting United States v. Picciandra, 788 F.2d 39, 42 (1st Cir.
5
As we noted in Bater, some matters subject to the abuse-of-
discretion standard will encompass subsidiary issues of fact --
"for which clear error is the customary test" -- or "mistakes on
abstract issues of law [that are] reviewed de novo." 594 F.3d at
54 n.1.
-7-
1986)) (alteration and omission in original); see also United
States v. Marion, 404 U.S. 307, 325 (1971).
In asserting prejudice, Ramos claims that he was denied
the opportunity to present the testimony of José Néris Rodríguez
("José Néris"), who Ramos maintains was the driver involved in the
high-speed chase and who died in 2006, while the government was
able to take advantage of the delay by asking each testifying
defense witness why he or she had waited so long to come forward
with their exculpatory testimony.6 Ramos also claims prejudice in
the disappearance of "two critical sources of identification
evidence": a pair of flip-flops found near the abandoned red truck
and a fanny pack belonging to José Néris that he claims was in the
truck. He cites as well the loss of recordings made at the
preliminary hearing in commonwealth court, which he describes as
"invaluable tools" to confront Officer Reyes about his inability to
identify Ramos as the driver shortly after the events.
The government offers rejoinders to each of these claimed
disadvantages, emphasizing that most depend on "rank conjecture" --
particularly Ramos's assumption that José Néris would have
implicated himself as the driver of the truck and, hence, possessor
of the cocaine. The government also challenges Ramos's assertion
that a fanny pack belonging to Néris was found in the vehicle,
6
Ramos points in particular to the questioning of José
Néris's brother, Héctor; Gerardo Cruz, a bystander to the chase;
and Johanna Bermúdez, his child's mother.
-8-
noting that such an item does not appear on any inventory list, and
it asserts that the sharp cross-examination of defense witnesses
resulted not from the passage of time but from the witnesses'
failure to inform investigators early on of their supposed
knowledge of the events. Moreover, the government notes that Ramos
was able to present his alibi defense through witnesses other than
José Néris, "even if not to the full extent he desired." United
States v. DeCologero, 530 F.3d 36, 78 (1st Cir. 2008).
We need not dwell on the issue of prejudice, however,
because we find no evidence that the government purposefully
delayed the indictment to gain a tactical advantage at trial.
Ramos urges us to find sinister motive in the government's decision
to bring this case on the eve of a separate 47-defendant, ten-count
indictment alleging that he was the kingpin of a multi-year drug
trafficking conspiracy. Trial in the conspiracy case originally
was set for mid-August 2009, two weeks before the trial in this
case,7 and Ramos argues that the nearly simultaneous prosecutions
were problematic for him and advantageous for the government.
Ramos claims he felt pressure to plead guilty in one of the cases,
and he asserts that a resolution in one case would "virtually
preclude his exercising his right to testify in the second."8
7
The conspiracy trial eventually began in mid-October 2009,
less than a month after the trial in this case.
8
Ramos's original conviction in the case now before us
occurred on September 25, 2009, and he was convicted on six counts
-9-
Although the back-to-back trial schedule was no doubt
difficult for Ramos, we see no evidence that the timing was
orchestrated by the government for the purpose of imposing that
burden. Indeed, the government could not have known that the
complex multi-defendant case would be set for trial at the same
time as this single-count prosecution against only Ramos.9 The
government attributes the length of the delay to the case's
transfer from commonwealth court to federal court, followed by the
case's shifting assignment among prosecutors. At oral argument,
government counsel explained that, in her role as lead prosecutor
in the conspiracy investigation, she was alerted to this case and
discovered that the statute of limitations was about to expire.
She therefore "tried to move as quickly as possible" in securing an
indictment.
Ramos has offered no reason for us to discredit the
government's plausible explanation and, hence, no basis for us to
conclude that the district court abused its discretion in denying
his motion to dismiss for pre-indictment delay. As we have
in the conspiracy case on November 3, 2009. In the conspiracy
case, he was sentenced in April 2012 to life terms on five counts
and a concurrent 240-month sentence on another count, all of which
are to be served concurrently with the sentence in this case. An
appeal is pending in the conspiracy case.
9
Although the original indictments were issued in close
succession -- in June 2007 for the instant case and in August 2007
for the conspiracy case -- a superseding indictment was issued in
the conspiracy case in February 2008, and a superseding indictment
was issued in this case more than a year later, in May 2009.
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observed, "[t]he Due Process Clause has only a limited role in this
context because the statutes of limitations provide the primary
protection against undue pre-indictment delays." DeCologero, 530
F.3d at 78. Although there may be instances when prosecutorial
delay will be sufficiently egregious to support a due process
violation even absent tactical purpose, this is not such a case.
See United States v. Lovasco, 431 U.S. 783, 795 n.17 (1977) (noting
the government's concession that due process might be violated by
delay "incurred in reckless disregard of circumstances, known to
the prosecution, suggesting that there existed an appreciable risk
that delay would impair the ability to mount an effective defense"
(internal quotation marks omitted)).
B. Government Misconduct
Three days before the retrial in this case, the
government provided Ramos with FBI reports ("302 Reports")
recounting interviews that had been conducted in 2006 and 2007 with
the two officers, Reyes and Vélez, who had been involved in the
2002 vehicle chase. The content of Reyes's interviews was
consistent with his testimony at the first trial, but the 302
reports of Vélez's statements revealed conflicts with her trial
testimony. In particular, one 302 Report stated that Vélez had
said she "did not see the driver's face during or after the chase,"
while at trial she testified that she noticed Ramos's "light-
colored eyes." Ramos moved to exclude Vélez as a government
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witness at the second trial because of the inconsistencies, but
following that motion neither the government nor the defense sought
to call Vélez to testify.10
After Ramos was convicted and sentenced for the second
time, he moved to dismiss the indictment for prosecutorial
misconduct. In the portion of the motion most pertinent here, he
complained that the government had intentionally concealed material
evidence -- the 302 reports of Vélez's interviews -- that would
have revealed her false testimony at the first trial. See Brady v.
Maryland, 373 U.S. 83, 87 (1963) (holding that, upon request,
prosecution must turn over to the defense favorable evidence that
is material to guilt or punishment); United States v. Bagley, 473
U.S. 667, 676 (1985) (holding that the duty to disclose extends to
impeachment evidence); United States v. Acosta-Colón, 741 F.3d 179,
195 (1st Cir. 2013) (explaining that one type of Brady violation
occurs when "undisclosed evidence shows that prosecutors knowingly
used perjured testimony or allowed false testimony to go
uncorrected"). In addition, the motion charged a "recurrent
pattern of concealment and deception," citing the same prosecutor's
belated disclosure of evidence in the contemporaneous conspiracy
10
The government explained that it acquiesced to defense
counsel's motion that Vélez be precluded as a witness because "we
had given him the 302 last Friday, and it wouldn't be fair for him
to cross-examine her so late. So that's why we left her out,
conceding to his motion."
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case in which Ramos also was a defendant.11 Ramos argued that
dismissal of the indictment was the appropriate sanction for
persistent government conduct "undertaken with such flagrant
disregard for Mr. Ramos-Gonzalez's constitutional rights."
In considering the motion, the district court addressed
both the alleged misconduct in this case (the possession case) --
allowing Vélez to testify falsely at Ramos's first trial -- and the
alleged withholding of evidence in the separate, 47-defendant
conspiracy case. With respect to the possession case, the court
found no prejudice because Vélez did not testify at the second
trial: "[A]ny error her conflicting testimony may have originally
introduced was cured in this subsequent and new trial." United
States v. Ramos-González, No. 3:07-cr-00262-JAF, Memorandum and
Order (D.P.R. Feb. 1, 2013), at 5 ("Memorandum and Order"). As for
the government's allegedly improper actions in the conspiracy
prosecution, the court looked to a decision issued in that case on
the defendants' motion for a new trial. In rejecting a Brady claim
based on some of the same allegations of misconduct, a different
trial judge had concluded that the undisclosed documents were
either cumulative or collateral impeachment evidence, United States
11
The motion asserted that in the conspiracy case the
government had, inter alia, improperly withheld information about
benefits provided to the government's "star witness," Harry Smith
Delgado-Cañuelas ("Delgado"), who was a cooperating co-defendant,
and belatedly provided copies of notes Delgado made memorializing
his conversations with other defendants.
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v. Ramos-González, 747 F. Supp. 2d 280, 294 (D.P.R. 2010), and that
the prosecutor had not withheld evidence in bad faith, id. at 288.
The court in this case adopted and reaffirmed that assessment of
the government's actions in the conspiracy trial: "The government
neither committed a Brady violation nor engaged in prosecutorial
misconduct when it produced materials to the defense post-trial."
Memorandum and Order, at 4 (citing Ramos-González, 747 F. Supp. 2d
at 294; United States v. Ramos-González, No. 07-318, 2011 WL
2144215, at *2 (D.P.R. May 31, 2011)). Concluding that Ramos
suffered no prejudice in either the conspiracy trial or the
possession retrial, the court denied the motion to dismiss.
A district court's decision to deny a motion to dismiss
based on prosecutorial misconduct is reviewed for abuse of
discretion. United States v. Dancy, 640 F.3d 455, 463 (1st Cir.
2011).12 We previously have recognized that, given "the
constitutionally mandated independence of the grand jury and the
prosecutor, courts should be reluctant to dismiss an indictment."
United States v. Rivera-Santiago, 872 F.2d 1073, 1088 (1st Cir.
1989) (internal quotation marks omitted). Moreover, once a
defendant has been convicted, the sanction of dismissing an
indictment "is employed in only truly extreme cases of egregious
12
The government argues that this issue was not adequately
preserved and that, accordingly, we should apply plain error
review. Because the claim does not succeed even under the standard
for preserved error, we need not, and do not, consider its
timeliness.
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prosecutorial misconduct," id. (internal quotation marks omitted),
and only where the misconduct "'so poisoned the well' that it
likely affected the outcome of the trial," Dancy, 640 F.3d at 463
(quoting United States v. Azubike, 504 F.3d 30, 39 (1st Cir.
2007)).
We are satisfied that the district court did not abuse
its discretion in refusing to dismiss the indictment here. The
unrevealed inconsistency in Vélez's statements relates to
impeachment rather than innocence. Moreover, the undisclosed
reports also differed on the disputed fact. The FBI 302 Report in
which Vélez is quoted as saying she did not see the driver's face
-- a statement inconsistent with her trial testimony -- is dated
June 25, 2007. However, in a report prepared eighteen months
earlier, in January 2006, she described the driver as she had at
trial as having "light colored eyes." The later report notes that
Vélez "opened the interview by stating that she did not have her
notes of an incident which occurred on July 4, 2002" and that she
"attempted to provide the facts of that incident as well as she
could from memory." The discrepancies between the two FBI reports,
together with the disclaimer in the second report suggesting that
the earlier one may be more accurate, inevitably would have reduced
the impact of the inconsistency between Vélez's trial testimony and
the June 2007 report. Moreover, although the disclosure should
have come earlier, the government provided the reports before the
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retrial began. In these circumstances, the district court
supportably concluded that the government's nondisclosure and its
use of Vélez's testimony in the first trial was not an extreme case
of prosecutorial misconduct. See Rivera-Santiago, 872 F.2d at
1088.
In addition, as the district court recognized, any
prejudice arising from the failure to disclose Vélez's conflicting
reports did not recur at the second trial because the government
did not call her as a witness. Nonetheless, Vélez remained
available, and if Ramos's counsel had thought it useful to reveal
the inconsistencies in her statements, she could have been called
as a defense witness.13
Nor can we conclude that the district court abused its
discretion in rejecting the motion to dismiss based on the
government's cumulative conduct in Ramos's two independent cases.
As an initial matter, the district court in the conspiracy case
13
In passing, Ramos also complains that the FBI 302 reports
reveal an inconsistency involving Vélez's testimony in the first
trial that, before the car chase, she had seen Ramos in her
neighborhood bringing vehicles to "a kid who washes cars." In the
2007 FBI 302, Vélez stated that she had never seen the person she
knew by reputation as "Robert Belleza" -- a name used by Ramos --
before the car chase. That report and her testimony are not
necessarily inconsistent. Vélez testified that she first connected
the person in her neighborhood with Ramos/Belleza during the post-
chase investigation. Her 302 statement may be understood,
consistently, to report that she had never previously associated
the familiar face with the also familiar name. In any event, the
offending evidence was not introduced at the second trial, and
Ramos could have, but did not, call Vélez as a witness to exploit
any such inconsistency.
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took the defendants' Brady claims seriously, conducted an
evidentiary hearing, and wrote a thoughtful opinion explaining why
the alleged violations there did not warrant a new trial. See
Ramos-González, 747 F. Supp. 2d at 291-97.14 Given such careful
treatment, that court's judgment that no constitutional violation
occurred in the trial over which it presided is owed deference by
both the district court in the instant case and by us on appeal.
See, e.g., United States v. Mathur, 624 F.3d 498, 504 (1st Cir.
2010) (noting that the trial court's "views about the likely impact
of newly disclosed evidence deserve considerable deference" because
"[t]he trial judge, having seen and heard the witnesses at first
hand, has a special sense 'of the ebb and flow of the recently
concluded trial'" (quoting United States v. Natanel, 938 F.2d 302,
313 (1st Cir. 1991)). In addition, we already have described the
limited significance of the cited nondisclosures in this case.
Hence, even taking the government's failures in combination, the
district court could properly conclude that dismissal was
unwarranted.15
14
The court in the conspiracy case also subsequently denied
Ramos's motion to dismiss the indictment in that case based on the
same failure by the prosecution to turn over the evidence. See
Ramos-González, 2011 WL 2144215, at *1; see also supra note 11.
15
We add two brief comments on this claim. First, we reject
Ramos's contention that the district court committed reversible
error in refusing to hold an evidentiary hearing. As noted above,
a hearing was held in the conspiracy case. Only limited additional
government behavior was challenged here, and the court thus acted
within its discretion in concluding that another hearing was
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Though we find no error in the district court's
resolution of the prosecutorial misconduct claim, and no basis for
finding bad faith by the prosecutors in these cases, we nonetheless
express concern about the repeated nondisclosure of evidence. As
noted above, impeachment evidence, as well as exculpatory evidence,
is covered by the principles of Brady and related cases. See
e.g., Drumgold v. Callahan, 707 F.3d 28, 38 (1st Cir. 2013);
Acosta-Colón, 741 F.3d at 195. Morever, prosecutors in every case
-- even in a district with a burdensome and congested criminal
docket, such as Puerto Rico -- have a duty to learn of evidence
favorable to the accused that is "known to the others acting on the
government's behalf in the case, including the police." Kyles v.
Whitley, 514 U.S. 419, 437 (1995). The United States Attorney's
Office should develop procedures to avoid repeating the lapses that
occurred in these cases.
unnecessary.
Second, Ramos's motion to dismiss also complained that the
government had violated his Sixth Amendment right to counsel of
choice by investigating whether his attorney helped fabricate his
alibi defense, thereby intimidating counsel and "establish[ing] a
per se and actual conflict of interest by placing Counsel's
interests at odds with the Defendant's." That post-trial
investigation could not have contributed, however, to the jury's
verdict of guilt, and it therefore does not assist Ramos's effort
to show prejudice. Moreover, this claim was referenced only in
passing on appeal and, hence, is waived. See, e.g., United States
v. Martinez, 762 F.3d 127, 132 n.2 (1st Cir. 2014).
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C. Exclusion of Alibi Witness
Ramos argues that the district court violated his
constitutional right to present witnesses in his defense when it
refused to allow an alibi witness that Ramos did not disclose to
the government until he sought to call her on the third day of
trial. See generally Taylor v. Illinois, 484 U.S. 400, 402 & n.1
(1988) (noting the accused's right under the Sixth Amendment's
Compulsory Process Clause "to obtain the testimony of favorable
witnesses"); United States v. Portela, 167 F.3d 687, 705 (1st Cir.
1999) (same). We review this claim de novo, balancing the
defendant's right to present his defense with "[t]he State's
interest in the orderly conduct of a criminal trial." Taylor, 484
U.S. at 411. Among the "countervailing public interests" are
"[t]he integrity of the adversary process, which depends both on
the presentation of reliable evidence and the rejection of
unreliable evidence, the interest in the fair and efficient
administration of justice, and the potential prejudice to the
truth-determining function of the trial process." Id. at 414-15.
Even if constitutional error occurred, it may be found harmless if
the prosecution is able to prove beyond a reasonable doubt that the
error did not contribute to the verdict. Portela, 167 F.3d at 706
(citing Satterwhite v. Texas, 486 U.S. 249, 256 (1988)).
Under Federal Rule of Criminal Procedure 12.1, if the
government requests notice of the defendant's intent to offer an
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alibi defense, the defendant must respond in writing with the names
of each alibi witness on whom he intends to rely. Fed. R. Crim. P.
12.1(a)(1), (2). The Supreme Court has observed that rules
providing for pretrial discovery of an opponent's witnesses
"minimize[] the risk that a judgment will be predicated on
incomplete, misleading, or even deliberately fabricated testimony."
Taylor, 484 U.S. at 411-12. Here, the government made a request
under Rule 12.1(a)(1), and Ramos notified the government that he
would present testimony that he was at the beach with "friends and
family members" on July 4, 2002, the day of the chase. He
identified his alibi witness as Johanna Bermúdez, his then-mistress
and the mother of one of his children, and he reported that
Bermúdez was accompanied to the beach that day by "her daughter and
Mrs. Rosa López."
At trial, after Bermúdez testified that Ramos spent most
of July 4 with her and others, Ramos sought to call López's
daughter, Kiomarie Hernández-López ("Hernández"), as a
corroborating witness. Defense counsel explained that Hernández
was being called because her mother, Rosa López, "doesn't want to
get involved in court." The government objected on the ground that
Hernández had not been named as an intended alibi witness and that,
indeed, López had not been identified as a witness either. The
court sustained the government's objection, pointing out that Rule
12.1 required Ramos to provide the name, address, and telephone
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number of each alibi witness. Defense counsel did not press the
issue.
On appeal, Ramos does not dispute that he violated Rule
12.1(a)(2). Rather, he argues that the district court committed
constitutional error by failing to weigh his right to present the
proposed witness against "the integrity of the adversary process,"
Taylor, 484 U.S. at 414, and by unjustifiably disregarding the
Supreme Court's statement that sanctions other than preclusion
"would be 'adequate and appropriate'" for most discovery
violations, Michigan v. Lucas, 500 U.S. 145, 152 (1991) (quoting
Taylor, 484 U.S. at 413). See Taylor, 484 U.S. at 413 (noting the
availability of "less drastic sanction[s]," including granting a
continuance to provide time for further investigation).
As an initial matter, we note that defense counsel did
not contemporaneously protest the exclusion,16 giving the court
16
After the government objected to the witness, defense
counsel stated that he did not think he needed to provide "all the
names of the people that I am going to present." In response, the
district court reviewed aloud Rule 12.1's requirement that the
defendant give the government the name, address and telephone
number of each alibi witness. The following exchange then took
place:
DEFENSE COUNSEL: However, it does say that, but I said,
I told the government the address.
COURT: Counsel, you have not given her that information.
DEFENSE COUNSEL: I did not give her the name.
COURT: Objection sustained.
DEFENSE COUNSEL: Okay.
COURT: Do you have any other witnesses aside from that?
DEFENSE COUNSEL: No, sir.
-21-
little reason to consider a less severe sanction for Ramos's
admitted rule violation. Although Ramos now argues that a
corroborating alibi witness was essential to his case because
Bermúdez was "an easy target for impeachment on grounds of bias,"
the only justification offered at trial for presenting Hernández as
a surprise witness was that she was a substitute for another
unannounced witness who had declined to appear. Importantly,
having proffered the alibi through Bermúdez, supported by Héctor
Néris's testimony that his brother was the truck driver, Ramos was
not denied the opportunity to present his defense. Cf., e.g.,
United States v. Levy-Cordero, 67 F.3d 1002, 1014-15 (1st Cir.
1995) (finding exclusion of alibi evidence unjustified and
remanding for a hearing to evaluate its content and reliability);
Bowling v. Vose, 3 F.3d 559, 562 (1st Cir. 1993) (finding error
where "an exculpatory and potentially reliable alibi" was wholly
excluded).
All told, this issue is not a close call. Without any
apparent justification for doing so, and in the course of
presenting a newly unveiled alibi, Ramos ignored the federal notice
rule whose purposes include "minimiz[ing] the risk that fabricated
testimony will be believed." Taylor, 484 U.S. at 413; see also
Chappee v. Vose, 843 F.2d 25, 31 (1st Cir. 1988) (observing that a
The defense then rested. Both parties treat the issue as properly
preserved, and we therefore do likewise.
-22-
"court may reasonably 'presume that there is something suspect
about a defense witness who is not identified until after the
eleventh hour has passed'" (quoting Taylor, 484 U.S. at 414)).
Indeed, Ramos did not even mention Hernández in his Rule 12.1
notice reporting that her mother was at the beach with Bermúdez and
Bermúdez's daughter. That omission magnified the government's
surprise at trial and presumably was easy to avoid. See Taylor,
484 U.S. at 415 (noting that the "simplicity of compliance with the
discovery rule is . . . relevant" in determining the proper
sanction for a violation). Finally, because the alibi first
appeared in Ramos's second trial, and that delay was emphasized by
the government, see supra Section II.A, the proposed corroborating
testimony was unlikely to be compelling even if the jurors did not
consider it unbelievable.17
We therefore conclude that the district court's exclusion
of Kiomarie Hernández's testimony was not constitutional error.
D. Jury Instructions
Ramos challenges the district court's jury instructions
on multiple grounds. In evaluating preserved claims of
instructional error, we consider de novo whether an instruction
properly conveyed the governing law, and we review for abuse of
discretion the district court's choice of language to present that
17
The district court concluded that the alibi was "a made up
defense" based on its assessment of witness credibility.
-23-
law. See, e.g., United States v. Sasso, 695 F.3d 25, 29 (1st Cir.
2012). Whatever the nature of the asserted error, we examine the
challenged instruction in context to determine "whether the charge
in its entirety . . . presented the relevant issues to the jury
fairly and adequately." United States v. Stefanik, 674 F.3d 71, 76
(1st Cir. 2012). Even an incorrect instruction will not warrant
reversal if it was harmless. United States v. McDonough, 727 F.3d
143, 157 (1st Cir. 2013) (internal quotation marks omitted). If
the defendant did not object to the challenged instruction at
trial, we review only for plain error. United States v. Appolon,
695 F.3d 44, 65 (1st Cir. 2012).
1. Instruction on Constructive and Joint Possession
Ramos contends that the court's instructions on
possession allowed the jury to find him guilty based on two
incorrect theories: simply because he owned the vehicle where the
cocaine was found, or because he jointly possessed the cocaine with
Néris. Ramos asserts that the first theory relies on an error of
law and the second is unsupported by the facts.
The court initially instructed on possession as follows:
The term possessing means to exercise
authority, dominion or control over something,
and the law recognizes several kinds of
possession.
Possession can be actual or
constructive. Actual possession is when
someone has in his person direct physical
control of something or so close to him or her
that he is then in actual possession of it.
-24-
A person who is not in actual
possession of something but who has both the
power and the intention to eventually obtain
possession of something is in constructive
possession of that. Whenever I use the term
possession, I am referring to both kinds,
actual and constructive. . . .
A good example of constructive
possession would be what is right now in the
trunk of my car parked in the parking lot,
what I have at home, in my closet, may have in
my locker room, in the drawers of my desk.
I'm in constructive possession of that stuff,
and I am perhaps miles away from it right now.
So you have actual and constructive possession
and both meet the rule.
And then you have sole possession and
joint possession. Sole possession is one
person only having it. Joint is shared
possession, two or more people sharing the
possession. So all kinds of possession are
included in the description of distribution of
a controlled substance.
Immediately after the charge, defense counsel expressed concern
that the example used in the constructive possession instruction
could be misleading because it suggested that the owner of a
vehicle may be held responsible for items in the trunk of his car,
"even miles away," regardless of his knowledge of the trunk's
contents. Counsel asked the court to stress that both types of
possession must be knowing and willful. In refusing to do so, the
court stated its belief that the knowledge element had been "amply
explained."18
18
The court's instructions just before the possession
explanation included the following:
-25-
Subsequently, during deliberations, the jurors asked the
court to "send" them the definitions of "actual possession" and
"constructive possession." The jury was brought into the
courtroom, and the trial judge reiterated its instruction,
including the definition of "joint possession." At the request of
defense counsel, however, it did not repeat the trunk-of-the-car
example. In addition, counsel again asked the court to add a
specific instruction on the state-of-mind requirement, and this
time the court did so:
Of course counsel and the Assistant remind me
that I should always say that both possessions
should be knowingly and willfully, with
intention of course.
The court also provided the jurors with a copy of the possession
instruction "from the book," presumably referring to the court's
compilation of the applicable pattern jury instructions. See
Pattern Criminal Jury Instructions for the District Courts of the
First Circuit ("Pattern Instructions"),
http://www.med.uscourts.gov/pdf/crpjilinks.pdf (2014).
For you to find the defendant guilty of this crime,
you must be convinced that the Government has proven each
of these things beyond a reasonable doubt. First, that
the defendant on that date, July 4, 2002, possessed
cocaine, either actually or constructively. Second, that
he did so with a specific intent to distribute the
cocaine over which he had actual or constructive
possession. And third, that he did so knowingly and
intentionally, which is what I just explained to you.
-26-
The next day, the jurors asked for a definition of
"reasonable doubt" and "a brief refresh of the definition of
knowingly and intentionally." In responding to the query on
knowledge and intent, the court emphasized that the drug offense in
this case required proof of criminal intent, and then elaborated,
in substantial part, as follows:
[O]ne of the things the Government has to
prove is criminal intent, that is, that the
defendant acted knowingly, willfully and
unlawfully, and that means with a bad purpose
to disobey or disregard the law, and not
because of mistake, not because of accident
and not because of an innocent reason.
The idea is that there be evidence,
proof beyond a reasonable doubt to prove that
intent, excluding the possibility that there
was a mistake, accident, or an innocent
reason. That's basically it. Doing something
that the law forbids, with a bad purpose to
disobey or disregard the law, that is what you
refer to as criminal intent, that's all, it's
as simple as that, excluding mistake, accident
or other innocent reason. There is no other
way to describe it.
On appeal, Ramos again complains that the court's use of
the car-trunk example in its initial instruction on constructive
possession erroneously suggested that his mere ownership of the
vehicle could provide a basis for conviction. He asserts that the
instruction allowed the jury to find that he possessed the drugs
based solely on the fact that they were in his truck.
Reviewing this preserved claim of legal error de novo, we
find no such flaw in the court's instructions. As we have
described, the court repeatedly charged the jurors that they had to
-27-
find that Ramos acted knowingly and intentionally. The court also
correctly informed the jurors that they must follow the
instructions in their entirety, and could not "ignore one and favor
another." In so stating, the court effectively linked its
instructions on intent with its instructions on possession, and the
inescapable message conveyed was that the jury needed to find
intentional possession, whether actual or constructive. Moreover,
in charging on Ramos's alibi defense, the court emphatically stated
the government's burden to prove that Ramos was at the scene of the
crime and not at the beach: "Unless the Government proves [that the
defendant 'was present at that time and place'] beyond a reasonable
doubt, then you must find the defendant not guilty." That
instruction, too, plainly rejects a finding of guilt based solely
on Ramos's relationship to the truck.
In sum, the court expressly announced and reinforced the
jury's obligation to find Ramos's knowing and intentional
involvement in the crime. We thus reject his contention that the
instruction on constructive possession was inadequate as a matter
of law.
Ramos is correct, however, that the instruction on joint
possession was improper because the record contains no evidence of
such a theory, and no party argued it. Most likely, the trial
judge unthinkingly read the instruction distinguishing between sole
and joint possession simply because it is part of the boilerplate
-28-
jury charge on possession with intent to distribute a controlled
substance. See Pattern Instructions, supra. The court, however,
should have been mindful of the facts of the case before it. See
United States v. Wolak, 923 F.2d 1193, 1198 (6th Cir. 1991) (noting
that boilerplate instructions "should not be used without careful
consideration being given to their applicability to the facts and
theories of the specific case being tried"). Nonetheless, no
objection was made to the instruction at trial, and our review is
thus for plain error. Accordingly, Ramos must bear the "heavy
burden" of showing that the error was clear or obvious, and that it
both affected his substantial rights and "seriously impaired the
fairness, integrity, or public reputation of judicial proceedings."
United States v. Ramos-Mejía, 721 F.3d 12, 14 (1st Cir. 2013)
(internal quotation marks omitted).
In asserting prejudice, Ramos claims that the faulty
instruction may have influenced the jurors to improperly find him
guilty based on a theory of joint possession with Néris. On the
record before us, we are unpersuaded that the jurors would have
made such a mistake. The jury was faced with a clear choice
between the government's theory that Ramos was driving the vehicle
(and, hence, possessed the cocaine) and Ramos's alibi defense that
Néris was the driver (and, hence, the possessor). No one suggested
that Ramos could be found guilty if Néris, not he, had been the one
to abandon the cocaine in the truck. Indeed, as quoted above, the
-29-
court told the jurors they must find the defendant not guilty if
the government failed to prove his presence at the scene of the
pursuit. Although the jurors sought clarification on the meaning
of "possession," there is no indication that the notion of joint
possession played a role in their deliberations. Rather, their
questions focused on state of mind and constructive possession, the
central components of the government's theory that, notwithstanding
his physical distance from the truck after he fled, Ramos knowingly
and intentionally possessed the cocaine he left behind. Cf., e.g.,
United States v. James, 819 F.2d 674, 675-76 (6th Cir. 1987)
(reversing conviction based on improper instruction on constructive
possession where jury note indicated high probability of jurors'
reliance on constructive-possession theory).
The government's theory is amply supported in the record,
and we see little risk that the alibi evidence of an alternative
suspect would have led a reasonable jury to find guilt based on
joint wrongdoing by the two men. Consequently, regardless of the
clarity of the instructional misstep, we cannot find plain error.
The joint possession charge neither affected Ramos's substantial
rights nor had a serious impact on "the fairness, integrity, or
public reputation" of his trial. Ramos-Mejía, 721 F.3d at 14
(internal quotation marks omitted).
-30-
2. Missing Witness Instruction
Immediately before closing arguments, Ramos's attorney
asked the court for a missing witness instruction for Officer
Vélez. Counsel noted the First Circuit pattern instruction
allowing the jury to draw an adverse inference from a party's
failure to call a witness who would be expected to give testimony
favorable to that party.19 The court replied that "no such
inference is justified when the witness is available to both
sides," and it noted that the defense could have subpoenaed Vélez.
Counsel responded, "That's my request," which drew a one-word reply
from the court: "Denied."
A district court's refusal to give a missing witness
instruction is subject to review for abuse of discretion. See,
e.g., United States v. Pagán-Santini, 451 F.3d 258, 267 (1st Cir.
2006). Here, the circumstances squarely support the court's
19
The First Circuit pattern instruction is as follows:
If it is peculiarly within the power of the government to
produce a witness who could give material testimony, or
if a witness, because of [his/her] relationship to the
government, would normally be expected to support the
government's version of events, the failure to call that
witness may justify an inference that [his/her] testimony
would in this instance be unfavorable to the government.
You are not required to draw that inference, but you may
do so. No such inference is justified if the witness is
equally available to both parties, if the witness would
normally not be expected to support the government's
version of events, or if the testimony would merely
repeat other evidence.
Pattern Instructions 2.12.
-31-
judgment. First, as described above, the request was undeveloped
and halfheartedly pursued. Second, and most importantly, Ramos
himself asked that Vélez be excluded as a witness based on the
inconsistencies between her testimony in the first trial and the
2007 FBI 302. Having secured the government's acquiescence to that
request, Ramos cannot reasonably demand an instruction that, in
effect, seeks to penalize the government for making the
accommodation. See United States v. Spinosa, 982 F.2d 620, 633
(1st Cir. 1992) (affirming denial of missing witness instruction
where the defendant "sought the dual benefit of avoiding [the
witness's] potentially harmful testimony at trial, while at the
same time obtaining the advantage of a negative inference drawn by
the jury about the government's failure to produce" the witness).
Third, neither of the primary justifications for the
instruction applied here. We have explained that, as a
prerequisite for a missing witness instruction, a criminal
defendant must show either that the uncalled witness is "favorably
disposed" to testify on behalf of the government -- meaning that
the government ordinarily would be expected to produce that witness
-- or that the witness is "peculiarly available" to the government.
United States v. Perez, 299 F.3d 1, 3 (1st Cir. 2002) (internal
quotation marks omitted). Nothing in the record suggests that
Ramos lacked access to Vélez or was unable to call her as a
witness. Less clear is which side would have benefitted more from
-32-
her testimony. Although Vélez's testimony presumably would have
favored the prosecution, she would have faced vigorous cross-
examination based on the newly revealed, inconsistent FBI report
from 2007.
Given the uncertainties, it is unsurprising that neither
side called Vélez as a witness. For that reason, and the others we
have identified, the district court cannot be faulted for refusing
to advantage Ramos with a missing-witness instruction.
III.
Ramos asserts a variety of sentencing errors, most of
which he acknowledges were not raised below. We address each claim
in turn, identifying the applicable standard of review as part of
our analyses. Generally, however, any assertion of sentencing
error raised for the first time on appeal is afforded only plain
error review. See, e.g., United States v. Ramos, 763 F.3d 45, 56
(1st Cir. 2014). In evaluating a preserved challenge to the trial
court's choice of a particular sentence, we most commonly apply the
deferential abuse-of-discretion standard. See United States v.
Suárez-González, 760 F.3d 96, 101-02 (1st Cir. 2014) (applying that
standard to the court's balancing of the sentencing factors and the
substantive reasonableness of the sentence imposed).
A. Timing of the Sentencing Hearing
Ramos contends that the district court erred by giving
him only nineteen days to review, and comment on, the updated PSR
-33-
that was prepared after his retrial conviction. He relies on
Federal Rule of Criminal Procedure 32, which states, in pertinent
part:
Minimum Required Notice. The probation
officer must give the presentence report to
the defendant, the defendant's attorney, and
an attorney for the government at least 35
days before sentencing unless the defendant
waives this minimum period.
Fed. R. Crim. P. 32(e)(2) (emphasis added). A district court's
compliance with Rule 32 is reviewed de novo, and we will remand for
resentencing if we find error that was not harmless. See United
States v. González-Vélez, 587 F.3d 494, 508-09 (1st Cir. 2009).
1. Background
Ramos's updated PSR was disclosed by the Probation Office
on March 20, 2012. On April 6, along with his response to the PSR,
Ramos filed a motion to continue sentencing on the ground that he
needed more time to prepare a request for a lower sentence based on
his medical condition. Ramos, then 43 years old, reported that he
was awaiting additional medical records so he could submit an
expert opinion on "the impact that a long term period of
incarceration will have upon [his] cardiac condition." He
therefore sought "the 35-day statutory time period to properly
address these issues."
The district court denied the requested continuance at
the sentencing hearing, which was held as scheduled on April 9.
The court acknowledged that only nineteen days had elapsed since
-34-
disclosure of the amended PSR, but it deemed that period adequate
because it thought an amended PSR was unnecessary and that Ramos
could have been sentenced based on the original PSR. The court
said it "gave [Ramos] the break" when it ordered an amended PSR so
he could pursue his claim that his criminal history was incorrectly
calculated.20 The court thus concluded that Rule 32(e)'s 35-day
notice period did not apply.
2. Discussion
The government argues that the application of Rule 32 in
the particular circumstances of this case is a novel question and
that the district court's reading of the rule was reasonable. The
government further asserts that any error was harmless because the
record demonstrates that a continuance to satisfy Rule 32's 35-day
requirement would not have resulted in a different sentence. It
points out that the district court emphatically rejected the
possibility that further information about Ramos's heart condition
-- the reason he said he needed a continuance -- would impact the
sentence.
We do not take lightly the requirements of Rule 32,
whose time limits "are integral to the fair and orderly process of
20
The Probation Office in fact concluded that a prior
conviction had been improperly counted toward Ramos's career
offender status, but the PSR substituted another conviction to
support the recommendation for career offender status. That
substituted conviction is the subject of the claimed error
discussed in Section III.B infra.
-35-
imposing sentence." United States v. Casas, 425 F.3d 23, 59 (1st
Cir. 2005) (internal quotation marks omitted). The procedures it
prescribes may not be dismissed as "mere technicalities." United
States v. López-López, 295 F.3d 165, 169 (1st Cir. 2002). Hence,
we are inclined to conclude that the full array of Rule 32's
protections ordinarily should accompany a PSR that is revised and
reissued after a new trial and guilty verdict. It is no less
important for a new sentencing to be fair and accurate than it was
for the original proceedings, and the Rule sets the default time
periods for achieving that objective. A defendant's circumstances
could have changed in any number of ways during the lapse of time
between convictions. He may have a new attorney, new convictions,
or new evidence of mitigating factors -- all of which may influence
the sentencing process. Indeed, the district court in this case
acknowledged that the amended PSR served an important function
because its preparation revealed that an ineligible conviction had
previously been counted to establish career offender status. The
logic in excluding an amended PSR from the scope of Rule 32, when
that report is part of a wholly new proceeding, prepared after a
retrial and verdict, is not apparent.
Enforcing the Rule's time limits need not compromise a
court's interest in avoiding redundancies and moving cases to
completion. In many instances of resentencing after re-conviction,
the Probation Office will be able to take advantage of its earlier
-36-
work, and, hence, the investigative stage of the process will
proceed quickly. In addition, both the defendant and the court
have the ability to modify the 35-day minimum period where
appropriate. See Fed. R. Crim. P. 32(e)(2) (allowing waiver by the
defendant); 32(b)(2) (allowing the court to change the Rule's time
limits for good cause). Time for deliberation is intentionally
built into the system, however, and the production of an amended
PSR following a retrial and new conviction would seem to trigger
the Rule's protections as a matter of course.
Nonetheless, even if the district court erroneously
denied a continuance in this case, that error would not require a
remand for resentencing. We agree with the government that the
district court's statements at the sentencing hearing demonstrate
beyond debate that the court would not have sentenced Ramos more
favorably even if presented with additional evidence on the impact
of incarceration on his cardiac condition. Cf. Casas, 425 F.3d at
63 (finding "a reasonable probability that the district court will
impose a more favorable sentence on remand"). The court firmly
rejected the value of the proposed testimony of Ramos's surgeon,
stating that it already had reviewed Ramos's medical records and
understood the dire nature of his "very serious cardiac condition."
The court noted that Ramos had been seen by "a first class
cardiologist" during trial because he felt sick, and the doctor had
-37-
found "only the typical complications that any person who has had
a heart valve transplant faces."
The court also expressly rejected the applicability of
Guidelines Section 5H1.4, which allows a downward sentencing
departure for "[a]n extraordinary physical impairment" and gives as
an example "the case of a seriously infirm defendant [for whom]
home detention may be as efficient as, and less costly than,
imprisonment." See U.S.S.G. § 5H1.4. The court viewed Ramos's
condition as serious, but unpredictable: "He could live until he's
70. But he has a cardiac condition, and he could also die
tomorrow." The court thus demonstrated unwillingness to further
consider sentencing leniency based on Ramos's medical condition.
As the pursuit of further medical information was the only
justification offered for Ramos's requested continuance, we
conclude that the refusal to grant the extra time, if error, was
harmless.
B. Career Criminal Classification
In challenging the district court's decision to sentence
him as a career offender, Ramos claims that the district court
improperly counted his 1987 conviction for violating Article 256 of
the Puerto Rico Penal Code -- which makes unlawful the use of
violence or intimidation against public officials -- as a predicate
crime of violence. See supra Section I.B & n.3. As described
above, one paragraph of Ramos's PSR lists convictions for a
-38-
controlled substance offense and violating Article 256, both
occurring on the same day in March 1987 and substantiated by
unspecified "judicial documents."21 At Ramos's sentencing hearing,
the probation officer provided the court with a stack of
commonwealth court records referencing the two convictions, which
were based on guilty pleas, and the documents were subsequently
translated into English and entered on the docket. See Dkt. 237.
In his sentencing memorandum, Ramos had objected to
counting the Article 256 conviction for career offender purposes on
the ground that it occurred outside the limitation period in the
Sentencing Guidelines. See U.S.S.G. §§ 4B1.1(a), 4B1.2(c),
4A1.1(a), 4A1.2(e).22 At his sentencing hearing, he complained that
21
The court did not rely on the 1987 controlled substance
offense and, as explained infra, it is not a qualifying predicate
crime.
22
Section 4B1.1 states the requirements for career-offender
status, see supra n.2, and § 4B1.2 explains that the requirement of
"two prior felony convictions" means, inter alia, that the
sentences for those crimes are counted separately under § 4A1.1,
which lists the criminal history points assigned to various terms
of imprisonment. Section 4A1.2, which is labeled "Definitions and
Instructions for Computing Criminal History," states in pertinent
part as follows:
Any prior sentence of imprisonment exceeding one year and
one month that was imposed within fifteen years of the
defendant's commencement of the instant offense is
counted. Also count any prior sentence of imprisonment
exceeding one year and one month, whenever imposed, that
resulted in the defendant being incarcerated during any
part of such fifteen-year period.
U.S.S.G. § 4A1.2(e)(1). Hence, Ramos's Article 256 conviction
would count as a prior felony conviction if he received a sentence
-39-
the supporting judicial documents produced by the probation officer
were not an "approved" source of information about that crime.
See, e.g., United States v. Carter, 752 F.3d 8, 19 (1st Cir. 2014)
(internal quotation marks omitted). On appeal, Ramos reiterates
those objections and argues in addition that, regardless of timing,
the Article 256 conviction does not qualify as a predicate crime of
violence.
As a starting point, we reject Ramos's contention that
the Article 256 crime was too remote to count as a predicate
offense for career offender purposes. Indeed, Ramos raises that
claim to this court only in his reply brief, and we therefore need
not address it at all. See, e.g., United States v. Diaz-Castro,
752 F.3d 101, 106 n.3 (1st Cir. 2014) (noting that an argument not
presented in appellant's opening brief on appeal is waived). The
claim also fails, however, on the merits. The commonwealth court
records show that Ramos, then nineteen years old, was given
suspended sentences on the Article 256 and controlled substance
convictions in December 1987, contingent on his completing an
inpatient treatment program (the "Puerto Rico Teen Challenge
Program") and fulfilling other conditions. See Dkt. 237 at 7, 90.23
exceeding one year and one month that resulted in his imprisonment
at any time in the fifteen years preceding July 4, 2002.
23
Ramos cites no case limiting our consideration of reliable
commonwealth court records to determine the timing of his
conviction or incarceration. The cases on which he relies discuss
documents that may be reviewed to determine the elements of the
-40-
In May 1988, Ramos was ordered arrested and held without bail, and
his suspended sentence was formally revoked later that year. Id.
at 83, 110-111. He was thus incarcerated within fifteen years of
the July 4, 2002 drug trafficking crime underlying this appeal,
placing the sentence within the period prescribed by Guidelines
§ 4A1.2(e).
Ramos's remaining challenge to his designation as a
career offender is that his Article 256 conviction is categorically
ineligible to qualify as a predicate crime of violence. Because
this argument is raised for the first time on appeal, our review is
for plain error.
1. Identifying a Predicate Crime of Violence
Under the Guidelines, an offense qualifies as a crime of
violence if it is punishable by more than one year of imprisonment
and either "(1) has as an element the use, attempted use, or
threatened use of physical force against the person of another," or
(2) is one of several enumerated crimes not pertinent here, "or
otherwise involves conduct that presents a serious potential risk
of physical injury to another." U.S.S.G. § 4B1.2(a). To determine
whether a defendant's past conviction falls within the scope of
§ 4B1.2(a), courts use either a "categorical approach" or a
crime of conviction. See, e.g., Shepard v. United States, 544 U.S.
13, 26 (2005) (plurality opinion); Carter, 752 F.3d at 19.
-41-
"modified categorical approach." See, e.g., Descamps v. United
States, 133 S. Ct. 2276, 2281 (2013); Carter, 752 F.3d at 16-17.24
Under the categorical approach, an offense constitutes a
crime of violence "only if its elements are such that we can
conclude that a person convicted of the offense has 'necessarily'
been found guilty of conduct that meets the [§ 4B1.2(a)]
definition." United States v. Martínez, 762 F.3d 127, 133 (1st
Cir. 2014). The categorical approach limits the court's inquiry to
"'the elements of the statute of conviction, not . . . the facts of
each defendant's conduct.'" United States v. Fish, 758 F.3d 1, 5
(1st Cir. 2014) (quoting Taylor v. United States, 495 U.S. 575, 601
(1990)). Hence, under the categorical approach, we would ask
whether Ramos's conviction for violating Article 256 necessarily
means -- without considering his actual conduct -- that he used,
attempted to use, or threatened to use force against another
person, or engaged in conduct presenting "a serious potential risk
of physical injury to another." U.S.S.G. § 4B1.2(a).
However, when a defendant's prior conviction is for
violating a "divisible statute" -- i.e., a statute that "sets forth
24
Much of the case law developing the two approaches has
arisen in the context of the Armed Career Criminal Act, which
imposes sentencing enhancements on defendants who have three prior
convictions for "serious drug offenses or violent felonies."
Shepard, 544 U.S. at 15; see also, e.g., Descamps, 133 S. Ct. at
2281; Taylor v. United States, 495 U.S. 575, 577-78 (1990). We
have long recognized the applicability of this precedent to the
career offender inquiry. See United States v. Dávila-Félix, 667
F.3d 47, 55-56 & n.9 (1st Cir. 2011).
-42-
one or more elements of a particular offense in the alternative,"
Fish, 758 F.3d at 6 (citing Descamps, 133 S. Ct. at 2281) -- the
modified categorical approach may be the appropriate method for
resolving the crime-of-violence question. If such a provision
alternatively criminalizes qualifying violent conduct and non-
qualifying conduct, making it impossible to determine from the face
of the statute whether the defendant's conviction was for a crime
of violence, the sentencing court is permitted to consult a limited
set of "approved records" to determine which alternative provided
the basis for the conviction. Carter, 752 F.3d at 19 (internal
quotation marks omitted); see also Descamps, 133 S. Ct. at 2284-85.
These records include charging documents, plea agreements,
transcripts of plea colloquies, jury instructions, and verdict
forms. Johnson v. United States, 559 U.S. 133, 144 (2010); see
also Taylor, 495 U.S. at 602 (acknowledging the need for courts to
look to the charging papers and jury instructions in a "narrow
range of cases" involving crimes with alternative elements); United
States v. Dávila-Félix, 763 F.3d 105, 110 n.5 (1st Cir. 2014)
(noting the need to consult "certain documents of record" for
divisible statutes (citing Taylor and Descamps)). The question
then becomes whether the variant of the crime revealed by those
documents satisfies the crime of violence definition.
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2. Does Ramos's Article 256 conviction qualify as a
predicate crime of violence?
As described above, Article 256 criminalizes the use of
violence or intimidation against a public official or employee.
The government maintains that both alternatives constitute crimes
of violence, making it unnecessary to perform the modified
categorical inquiry, while Ramos asserts that a violation based on
"intimidation" does not necessarily qualify as such an offense
because a threat to damage property suffices to satisfy that prong.
Neither party offers useful support for its argument. The
government cites only a single, inapposite case,25 and Ramos relies
on what is apparently his own translation of a sentence from a
Spanish-language treatise on Puerto Rico's penal code.26
25
The government relies on United States v. Santos, 131 F.3d
16 (1st Cir. 1997), where the defendant was charged with
"threatening the life of and bodily harm to the President," in
violation of 18 U.S.C. § 871. Id. at 21. We concluded that the
district court properly classified the offense as a crime of
violence because it "had as an element the threatened use of
physical force against another person," one of the triggering
attributes of a crime of violence under Guidelines § 4B1.2. Id.
Santos sheds no light on whether a conviction for use of
intimidation under Article 256 would necessarily include any of the
requisite elements of a crime of violence.
26
Ramos quotes a text titled "Penal Code of Puerto Rico" by
Dora Nevares-Muñiz for the proposition that "intimidation refers to
the use of coercion or psychological pressure on the person,
characterized by the threat that he will suffer imminent and
unjustified damage to his or her person or property." It does not
appear that the volume ("Código Penal de Puerto Rico") is available
in English.
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The government has offered no basis on which we could
conclude that both the "violence" and "intimidation" prongs of
Article 256 necessarily include an element related to either
physical force against an individual or a "serious potential risk
of physical injury" to a person, which would allow us to classify
the statute as a crime of violence under the categorical approach.
Although the government states in its brief that "judicial records"
report that Ramos's Article 256 crime involved physical action
against a police officer, it does not argue that the conviction
qualifies under the modified categorical approach. Hence, the
government has waived that backup position. Nonetheless, given the
significance of the issue here and the likelihood that similar
circumstances will arise in other cases, we think it important to
explain why the argument would in any event fail.
Although most of the Superior Court documents submitted
by the probation officer do not fall into any of the usual
categories of permissible records, we have observed that, "[i]n
addition to these 'approved' records, a federal court may also
consider some comparable judicial record." Carter, 752 F.3d at 19
(footnote omitted) (internal quotation marks omitted). Our review,
however, "'must be "confined to [the] records of the convicting
court,"'" id. (quoting United States v. Turbides-Leonardo, 468 F.3d
34, 39 (1st Cir. 2006) (quoting Shepard, 544 U.S. at 23)
(alteration in original)), and we thus "may not rely on the police
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reports related to the earlier conviction," id. at 20 (citing
Shepard, 544 U.S. at 16).
The only commonwealth document among the submitted
records that describes the episode leading to Ramos's Article 256
charge is a Complaint filed by a Caguas police officer, stating as
follows:
Above-referenced defendant, Cruz
Roberto Ramos-Gonzalez, on or about November
15, 1986 at 7:00 p.m. at the Boneville Height
hous. proj. in Caguas, P.R., used violence and
intimidation against OFF. Orlando Rosa-Santana
#8812 who was a PUBLIC OFFICIAL at the time,
member of the P.R. Police, offering resistance
during an act in compliance of his duty and
functions:
The act consisted of jumping on the
office[r,] causing him to fall to the ground,
and grabbing him once he got back up.
Dkt. 237, at 18. The PSR in this case depicts a similar encounter,
stating that Ramos resisted arrest on the drug charge "by pushing
and grabbing one PRPD officer." Neither of these documents,
however, is an approved source for determining whether Ramos's
conviction was based on the use of violence or intimidation. See
Carter, 752 F.3d at 20 ("[T]he police incident report . . . might
include sufficient details to make such a determination, but we are
precluded from using it for that purpose."); see also id. ("[A]
presentence report in a subsequent case ordinarily may not be used
to prove the details of the offense conduct that underlies a prior
conviction." (internal quotation marks omitted)).
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The charging document for the Article 256 violation, an
"approved" record under Shepard and related precedent, is less
specific. It states, in pertinent part, that Ramos "unlawfully,
voluntarily, knowingly and criminally, making use of violence or
intimidation, resisted a public official and/or government employee
in the performance of his duties." See Dkt. 237, at 5. In
addition, the Minutes of a proceeding held on March 12, 1987 in
Puerto Rico Superior Court report that Ramos waived jury trial on
the related drug and Article 256 charges and that he,
in accordance with a plea agreement with the
Prosecutor, pleads guilty to the crime of
violation of the Controlled Substances Act,
possession, Art. 404 on case G87-222 and
violation of Art. 256 of the Penal Code in
case G87-221.
Dkt. 237, at 37. Neither the plea agreement nor the plea colloquy
are among the submitted records, and no other document sheds light
on Ramos's admissions in connection with his guilty plea.
Relying on the documents in the record that we are
permitted to consult, we cannot conclude that Ramos's 1987
conviction was for a crime of violence within the meaning of the
career offender provision of the Guidelines. We have been cited no
authority for categorically classifying an act of "intimidation"
in violation of Article 256 as a crime of violence, and the record
does not permit us to know the type of conduct admitted by Ramos.
The charging document asserted that Ramos made use of violence or
intimidation. Although the police complaint described a physically
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violent interaction, Ramos's admission of guilt may not have
incorporated those details. Cf. Descamps, 133 S. Ct. at 2289
(noting the unfairness of imposing a sentence enhancement based on
facts in the record when the defendant may have bargained for a
guilty plea to a lesser crime). In that regard, the circumstances
of the drug conviction are telling. The police complaint alleged
that Ramos had possessed cocaine with the intent to distribute it,
a violation of Article 401 of the Puerto Rico Controlled Substances
Act, P.R. Laws Ann. tit. 24, § 2401, see Dkt. 237, at 16, 21, but,
as noted above, he pleaded guilty to a possession crime in
violation of Article 404, P.R. Laws Ann. tit. 24, § 2404. It
appears that the severity of the drug crime was reduced in the
course of plea negotiations.27
In short, on this record, Ramos's Article 256 conviction
does not qualify as a crime of violence either categorically or,
under the modified categorical approach, based on the elements that
Ramos admitted. The absence of any support for classifying that
conviction as a crime of violence makes the court's error in
relying on it plain.28 The remaining components of the plain error
27
The Article 404 drug possession conviction is not a
controlled substance offense for career offender purposes. See
U.S.S.G. § 4B1.2(b) (defining "controlled substance offense" in
that context to include possession accompanied by "intent to
manufacture, import, export, distribute, or dispense" the drug);
see also Dávila-Félix, 763 F.3d at 107-08 & n.3.
28
Ramos notes that the district court did not expressly
identify the Article 256 violation as one of the two triggering
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test -- prejudice to the defendant and the threat of a miscarriage
of justice -- also are satisfied here. See United States v. Jones,
748 F.3d 64, 69 (1st Cir. 2014). The government does not dispute
Ramos's assertion that, without career offender status, his
applicable Guidelines range would be substantially lower.29 We
previously have observed that, "as to the threat of miscarriage of
justice if we declined to remand, the difference in potential jail
time would be a concern in any balance." United States v. Torres-
Rosario, 658 F.3d 110, 117 (1st Cir. 2011).30 To the extent
relevant to the plain error inquiry, the government asserts no
offsetting circumstances. See id. (noting the ease of addressing
convictions, but its colloquy at the sentencing hearing rejecting
Ramos's objections to the commonwealth records inescapably shows
that it did.
29
Ramos asserts that, without career offender status, his
total offense level would be 30, which would carry a Guidelines
sentencing range of 151-188 months under CHC V (which he claims is
applicable) and 168-210 months under CHC VI (which the government
claims is applicable). In fact, as described infra, the district
court began with a lower BOL than Ramos suggests, which would have
produced a sentencing range of 130-162 months under CHC V without
career offender status (and 140-175 months under CHC VI) if all
other factors remained the same.
30
Although it might seem that the career offender error is
harmless because Ramos was sentenced to multiple life terms for his
convictions in the conspiracy case, Ramos's pending appeal in that
case challenges both his convictions and sentences. We decline to
rely on a non-final term of imprisonment in a separate case to
justify leaving intact the erroneous term of imprisonment here.
Cf. United States v. Almonte-Nuñez, 771 F.3d 84, 92 (1st Cir. 2014)
(noting a preference for "trimming back an excessive sentence" on
plain error review, even when a defendant's "overall period of
immurement will not be affected," where defendant was improperly
sentenced in excess of a statutory maximum).
-49-
the Shepard issue on remand without need for a new trial); Dávila-
Félix, 667 F.3d at 57 (holding that "[t]he standards of plain error
review clearly are met," without analyzing the third and fourth
prongs, where the record did not show qualifying predicate crimes).
3. The Scope of Resentencing
In other cases, we have explicitly allowed the parties to
further develop the record on the question of career offender
status. See, e.g., Carter, 752 F.3d at 21; Torres-Rosario, 658
F.3d at 117; cf. Dávila-Félix, 763 F.3d at 113-114 (upholding
career offender enhancement where district court accepted new
evidence of predicate crimes on remand). In this case, however,
the government already has had two opportunities to offer evidence
in support of the career offender enhancement. As noted earlier,
the Probation Office acknowledged relying on an ineligible
conviction in Ramos's first PSR, and it substituted the March 1987
conviction to establish career offender status. See supra note 20.
We recently observed that "no party -- including the government --
is entitled to an unlimited number of opportunities to seek the
sentence it desires." Dávila-Félix, 763 F.3d at 113. Moreover,
"in a case where the government asked for [an] enhancement but
failed to adduce sufficient proof for its imposition . . . there
would not likely be reason to permit a second bite at the apple."
Id. (alteration and omission in original) (internal quotation
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marks omitted). A fortiori, the government here may not reopen the
record to take a third bite at the career offender apple.31
Accordingly, we must vacate Ramos's sentence and remand
for resentencing without the career offender enhancement.
C. Apprendi/Alleyne Error
Invoking Apprendi v. New Jersey, 530 U.S. 466 (2000), and
Alleyne v. United States, 133 S. Ct. 2151 (2013), Ramos argues that
his Fifth and Sixth Amendment rights were violated when the
district court sentenced him based on a drug quantity that was not
found by a jury beyond a reasonable doubt. This claim was not
raised below and is therefore reviewed only for plain error. In
this instance, however, the standard is irrelevant because no
drug-quantity error occurred in his sentencing.
The Supreme Court's decisions in Apprendi and Alleyne
establish that a jury must find beyond a reasonable doubt any drug
quantity that triggers a mandatory-minimum and a statutory-maximum
sentence under 21 U.S.C. § 841, whose multiple subsections set out
different crimes. See, e.g., United States v. Pizarro, 772 F.3d
284, 292 (1st Cir. 2014). In this case, Ramos acknowledges that
the indictment charged, and the jury found, that he possessed at
least 500 grams of cocaine. Under § 841(b)(1)(B), a defendant
31
The government has not suggested that evidence already in
the record would permit sentencing Ramos as a career offender if
the Article 256 conviction may not be counted as a predicate crime
of violence. We therefore do not address that circumstance.
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found guilty of possessing for distribution at least 500 grams but
less than five kilograms of cocaine is subject to a mandatory
minimum term of five years and a maximum of forty years
imprisonment. Both the PSR and the district court's comments at
sentencing placed the amount of cocaine seized from the truck at
roughly two kilograms -- an amount within the same statutory range
as the 500 grams found by the jury. In other words, the record
shows unequivocally that Ramos's sentence was based on the
statutory range consistent with the jury's finding. Hence, no
Apprendi or Alleyne error occurred.
It is possible that Ramos's actual complaint is that the
district court used the wrong Guidelines sentencing range.32 He
asserts that his BOL "was calculated as if he had been convicted of
possessing at least two kilograms" of cocaine. This assertion is
incorrect. Although the PSR concluded that Ramos was responsible
for just over two kilograms, the district court at sentencing
expressly used the BOL for an offense involving at least 500 grams
but less than two kilograms of cocaine. See U.S.S.G. § 2D1.1(7)
(Level 26).
32
As we have recently explained, if the jury makes the
required threshold finding to trigger a mandatory minimum (in this
instance, "500 grams or more" of cocaine), but does not indicate a
specific quantity, the district court may make a drug quantity
finding by a preponderance of the evidence to determine the
recommended sentence under the Guidelines. The sentence imposed
must be within the statutory range. See Pizarro, 772 F.3d at 294
n.14.
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In sum, the drug quantity on which the district court
based Ramos's sentence was proper under both the Guidelines and
§ 841(b)(1)(B).
D. Reasonableness of the Sentence
Ramos claims that the district court abused its
discretion by sentencing him to a substantial prison term without
adequately taking into account the severity of his heart condition.
He argues that the court failed to follow the statutorily
prescribed "parsimony principle" -- i.e., that "a sentence [be]
sufficient, but not greater than necessary," to achieve the
legitimate objectives of sentencing. 18 U.S.C. § 3553(a). In
particular, Ramos complains that, given his age and physical
condition, as well as his then-anticipated (and now imposed) life
sentence in the conspiracy case, his 327-month sentence in this
case was unnecessary to accomplish the objectives of deterrence and
protecting the public from further crimes by him. See id.
§ 3553(a)(2)(B), (C). Ramos also complains that the court
disregarded "the need for the sentence imposed . . . to provide the
defendant with needed . . . medical care." Id. § 3553(a)(2)(D).
Given that Ramos will be resentenced without the career
offender enhancement, inevitably reducing his term of imprisonment
in this case, we need not address this challenge to the length of
his sentence. We note, however, that the district court has broad
discretion to balance the pertinent sentencing factors, and "its
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choice of emphasis . . . is not a basis for a founded claim of
sentencing error." United States v. Colón Ledée, 772 F.3d 21, 41
(1st Cir. 2014) (omission in original) (internal quotation marks
omitted). Nonetheless, on remand, the district court will have
available more recent information about Ramos's health that it may
consider in selecting an appropriate sentence under the applicable
Guidelines range.
IV.
To recap our holdings on Ramos's claims:
(1) The government's nearly five-year delay in bringing
the indictment did not violate Ramos's due process rights;
(2) The district court did not abuse its discretion in
denying Ramos's motion to dismiss the indictment for prosecutorial
misconduct. We urge the United States Attorney's Office in Puerto
Rico, however, to implement procedures that will enable it to
fulfill its obligation in every case to become aware in a timely
fashion of material evidence "known to the others acting on the
government's behalf in the case, including the police," Kyles, 514
U.S. at 437, and disclose such evidence to the defense;
(3) The district court did not err in excluding an alibi
witness and refusing a missing witness instruction, and the
erroneous portion of its instructions on possession did not rise to
the level of plain error;
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(4) The court's refusal to continue Ramos's sentencing
hearing, if error, was harmless;
(5) The district court incorrectly relied on Ramos's
Article 256 conviction to designate him as a career offender and,
hence, he must be resentenced. On remand, the government may not
seek to justify the career offender enhancement with new predicate
crimes. The court, however, may consider anew both parties'
previously raised arguments concerning the appropriate sentence.
So ordered.
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