United States v. Acevedo-Lopez

United States Court of Appeals
For the First Circuit
No. 15-2523
UNITED STATES OF AMERICA,
Appellee,
v.
LUTGARDO ACEVEDO-LÓPEZ,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Aida M. Delgado-Colón, U.S. District Judge]
Before
Torruella, Lipez, and Barron,
Circuit Judges.
Martin G. Weinberg, with whom Kimberly Homan, were on brief,
for appellant.
Juan Carlos Reyes-Ramos, Assistant United States Attorney,
with whom Rosa Emilia Rodríguez-Vélez, United States Attorney, and
Mariana E. Bauzá-Almonte, Assistant United States Attorney, Chief,
Appellate Division, were on brief, for appellee.
October 11, 2017
TORRUELLA, Circuit Judge. Defendant-Appellant Lutgardo
Acevedo-López ("Acevedo") pled guilty to violating 18 U.S.C.
§§ 371 and 666(a) by conspiring to bribe and paying a bribe to a
judge on the Puerto Rico Court of First Instance. Acevedo appeals
his sentence of nine years' imprisonment. We affirm.
I. BACKGROUND
A. Factual Background
Prosecutors in the Aguadilla judicial region of
Puerto Rico charged Acevedo with aggravated negligent homicide,
obstruction of justice, and driving under the influence of
alcoholic beverages after he killed another driver in a car
accident on June 30, 2012. In November 2012, Ángel Román-Badillo
("Lito") -- a long-time acquaintance of Acevedo -- met with Manuel
Acevedo-Hernández (the "Judge"), a Puerto Rico Superior Court
Judge in the Aguadilla judicial region, and the Judge's brother,
Saúl Acevedo-Hernández ("Saúl"), and nephew, Miguel Acevedo-Manjo
("Miguel") at a restaurant.1 They discussed Acevedo's case, and
Lito told the Judge that Acevedo's case would be assigned to him.
The Judge told Lito that, if he was assigned the case, he would
let Lito know.
1 Because a number of people mentioned in this opinion have the
last name "Acevedo," we refer to them by either their first name
or a nickname used in the record. We mean no disrespect in doing
so.
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In subsequent meetings, the Judge informed Lito that the
case had been officially assigned to him. The Judge commented
that Acevedo's criminal case was so delicate that it "could not be
worked on, not even for $100,000," but the Judge also stated that
he wanted a seat on the state appellate court and government jobs
for Saúl and Miguel.
The Judge eventually agreed to provide Acevedo with
favorable treatment. From November 2012 to April 2013, Lito would
invite the Judge, Saúl, Miguel, and other friends to bars and
restaurants, and Acevedo would pay for everything. Through Lito,
Acevedo also: (1) paid the Judge's pending state income tax debt;
(2) bought the Judge gifts; (3) arranged for construction
improvements on the Judge's garage; and (4) purchased a used
motorcycle for the Judge.
Acevedo also worked to procure a seat on the state
appellate court for the Judge. In December 2012, Acevedo arranged
a meeting at a golf tournament between the Judge and Anaudi
Hernández ("Hernández"), a businessman with connections to the
then-Governor-elect who had previously helped another judge get
reappointed. On December 30, 2012, Lito drove the Judge to the
golf tournament. At the tournament, Lutgardo Acevedo-López II
("Bebé"), Acevedo's brother, told Hernández that he wanted to
introduce Hernández to a friend who aspired to be an appellate
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judge. The Judge became nervous because he was presiding over
Acevedo's case, however, and he did not meet Hernández at the
tournament. A few weeks later, however, on January 21, 2013, Lito
drove the Judge to Hernández's residence to discuss the Judge's
potential appointment to the appellate court. During the meeting,
the Judge told Acevedo that his dream was to retire as an appellate
judge.
In return for these inducements, the Judge provided help
with Acevedo's case. Between January and March 2013, Acevedo
provided the Judge with draft court filings for his review and
advice prior to filing. Further, on March 22, 2013, the Judge met
with Lito to discuss Acevedo's case and provide strategic legal
advice. On March 27, 2013, the Judge acquitted Acevedo of all
charges.
On April 5, 2013, Lito drove the Judge to a seminar.
Later that day, Puerto Rico police officers stopped Lito, still
with the Judge, for suspected driving while under the influence of
alcohol. The Judge intervened on Lito's behalf, but some of the
officers had been involved in the case against Acevedo, and they
identified Lito as Acevedo's associate and raised concerns about
the Judge's association with Lito. This eventually led to a
federal investigation.
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B. Procedural History
On June 3, 2014, federal officers arrested Acevedo in
the Southern District of Florida. On June 6, 2014, a magistrate
judge in the Southern District of Florida ordered that Acevedo be
detained and removed to the District of Puerto Rico. On July 14,
2014, the district court for the district of Puerto Rico conducted
a de novo detention hearing and reinstated the Florida magistrate's
detention order.
On August 14, 2014, Acevedo entered into a plea
agreement. The parties stipulated to a total offense level of
twenty-three, but Acevedo's presentence investigation report (the
"PSR") initially recommended a total offense level of twenty-nine.
Acevedo filed several objections to the PSR. In response to those
objections, the probation officer issued an addendum to the PSR on
November 3, 2015. The addendum included a revised calculation of
the benefits received by the Judge under U.S.S.G. § 2C1.1(b)(2),
which reduced the recommended total offense level from twenty-nine
to twenty-seven.
The district court held a sentencing hearing on
November 6, 2015. Among other things, the district court found
that the annual salary increase that the Judge would have received
if he had been appointed as an appellate judge, totaling $123,200
over eight years, was to be included in calculating the value of
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the bribe under U.S.S.G. § 2C1.1(b)(2). The district court also
found that the conspiracy involved at least five criminally-
responsible participants and was also otherwise-extensive under
U.S.S.G. § 3B1.1(a). Altogether, the district court calculated a
total offense level of twenty-seven and a recommended sentencing
range of seventy to eighty-seven months of imprisonment. After
reviewing the 18 U.S.C. § 3553(a) factors, however, the district
court determined that "the circumstances surrounding this offense
fall completely out of the heartland of the Sentencing Guidelines,"
and so "a variance [was] warranted." Considering "the seriousness
of the offense and all of the factors," the district court
therefore sentenced Acevedo to 108 months of imprisonment, one
year less than the statutory maximum.
Acevedo appealed his sentence.
II. ANALYSIS
Acevedo raises a plethora of purported procedural
sentencing errors made by the district court. We address them
each in turn.
We review the district court's legal interpretation and
application of the Sentencing Guidelines de novo, its findings of
fact -- including calculations of value -- for clear error, and
its judgment calls for abuse of discretion. United States v.
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Houston, 857 F.3d 427, 432 (1st Cir. 2017); see also United States
v. Vázquez-Botet, 532 F.3d 37, 65 (1st Cir. 2008).
A. The District Court Did Not Err in Calculating the Value of
the Benefit to the Judge
Acevedo's first claim of error is that the district court
miscalculated the value of "anything obtained or to be obtained"
by the Judge under U.S.S.G. § 2C1.1(b)(2). U.S.S.G. § 2C1.1(b)(2)2
provides:
If the value of the payment, the benefit received or
to be received in return for the payment, the value
of anything obtained or to be obtained by a public
official or others acting with a public official, or
the loss to the government from the offense, whichever
is greatest, exceeded $5,000, increase by the number
of levels from the table in § 2B1.1 (Theft, Property
Destruction, and Fraud) corresponding to that amount.
Acevedo's plea agreement calculated the "Value of the Payment" as
more than $30,000 but less than $95,000, which corresponded to a
six-level increase.3
But the district court conducted its own calculation.
Because it could not determine the monetary value to Acevedo of an
2 Acevedo's PSR and the district court quoted the November 1,
2013 edition of the United States Sentencing Guidelines Manual in
this instance. We do so as well.
3 As the plea agreement indicates only a six-level increase in
light of U.S.S.G § 2C1.1(b)(2), the plea agreement presumably
contemplated that the "value of the payment" did not exceed
$70,000. See U.S.S.G § 2C1.1(b)(2) (referencing the table at
§ 2B1.1).
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acquittal, or the loss to the government, the district court
calculated the value of what was "to be obtained by [the Judge]"
-- which it found was an appellate judgeship -- pursuant to his
agreement to provide Acevedo favorable treatment. It determined
that the Judge would have received an extra $15,400 per year in
annual salary if he had been appointed to the appellate court, and
that he would have received that additional salary from 2013 --
the year the Judge acquitted Acevedo -- until 2021, when the Judge
would reach the mandatory retirement age of seventy. This
increased salary over a period of eight years resulted in a
calculated expected benefit of $123,200, resulting in an eight-
level increase in Acevedo's total offense level.
Acevedo first attacks the district court's finding by
arguing that, although the Judge may have expected an appellate
judgeship, that expectation was not reasonable. The district
court found otherwise, and we see no clear error. The appellate
judgeship was a centerpiece of the bribe -- the Judge stated that
he would not otherwise participate in the conspiracy, "not even
for $100,000." In addition, all parties took steps to facilitate
the Judge's appointment. Acevedo coordinated two meetings between
the Judge and Hernández, a key fundraiser for the then governor-
elect. The Judge took steps to attend the first meeting, at a
golf tournament, and he subsequently met Hernández at Hernández's
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home. It is true that there is no evidence that the Judge applied
for an appellate judgeship, but there is substantial
circumstantial evidence of the Judge's expectations. The district
court therefore did not clearly err in finding that the Judge
reasonably expected that Acevedo would procure an appellate
judgeship for him.
Acevedo also argues that all the Judge could have
reasonably expected to obtain was assistance in acquiring an
appellate judgeship, not the judgeship itself. He therefore
reasons that the Government was required to prove the value of the
assistance, which was necessarily less than the full value of the
appellate judgeship, and that it did not do so. For support,
Acevedo cites United States v. Fitzhugh, 78 F.3d 1326 (8th Cir.
1996) and United States v. White Eagle, 721 F.3d 1108 (9th Cir.
2013), in which those circuits held that, where a loan is obtained
by a bribe, "its value will typically be the difference between
the actual cost of the loan, and the cost of the same loan at fair
market terms and conditions." White Eagle, 721 F.3d at 1122
(quoting Fitzhugh, 78 F.3d at 1331). Those cases are inapplicable.
A loan requires repayment, and so its face value is not a good
indicator of the benefit conferred. Acevedo's offer to get the
Judge appointed to an appellate judgeship did not have this type
of offset. As stated above, the Judge reasonably believed that
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Acevedo could get him appointed. Thus, the record supports the
conclusion that what the Judge intended to obtain was an appellate
judgeship. While the defendant argues he merely offered
"assistance," that argument does not suffice to show that the
district court erred in concluding that the Judge intended to
obtain something more.
The district court therefore did not err in applying an
eight-level increase to Acevedo's offense level.
B. The District Court Did Not Err By Finding That the Criminal
Activity Involved Five or More Participants
The district court also increased Acevedo's total
offense level by four levels because it found he "was an organizer
or leader of a criminal activity that involved five or more
participants or was otherwise extensive." U.S.S.G. § 3B1.1(a).
We review the district court's determination that an individual
was a participant for clear error. See United States v. George,
841 F.3d 55, 66, 69-70 (1st Cir. 2016).
A participant is "a person who is criminally responsible
for the commission of the offense, but need not have been
convicted." U.S.S.G. § 3B1.1 cmt. n.1. To be considered a
participant, it is only necessary that an individual gives knowing
aid in some aspect of the criminal activity. George, 841 F.3d at
70 (citing United States v. Starks, 815 F.3d 438, 441 (8th Cir.
2016)); United States v. McCormick, 773 F.3d 357, 360 (1st Cir.
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2014). Similarly, an individual can be considered a participant
when his or her acts "give rise to an inference of complicity
sufficient to ground a finding that [the individual] was a
participant in the criminal activities." George, 841 F.3d at 70.
Acevedo concedes that he and three others were
criminally responsible participants, but he contends that the
district court erred in finding that Bebé, Saúl, Miguel, and
Hernández were also criminal participants. We find that there is
sufficient evidence to establish that Saúl was a participant, and
thus need not address whether any of the others were participants.
Other circuits have affirmed a finding that an
individual was a criminal participant under circumstances similar
to Saúl's. In United States v. Saulter, an individual called
"Judo" played a small role in a larger drug transaction by helping
a criminal informant locate the defendant to conduct the
transaction. 60 F.3d 270, 280-81 (7th Cir. 1995). There was also
disputed evidence, credited by the district court, that Judo handed
the informant cocaine. Id. at 281. The Seventh Circuit held that
"Judo's assistance in locating [the defendant] to perform an act
in furtherance of the conspiracy" combined with handling cocaine
established Judo as a criminally responsible participant for the
purposes of § 3B1.1(a). Id.
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In a second case, the defendant paid false invoices to
a car dealer who leased cars to the New York City Transit Police
Benevolent Association (the "TPBA"), which enabled "selected TPBA
members . . . to buy cars at discounted prices from the auto dealer
as a direct result of [the defendant's] larceny from the TPBA."
United States v. Zichettello, 208 F.3d 72, 108 (2d Cir. 2000).
The defendant argued that none of the TPBA members were criminal
participants. Id. at 108. The Second Circuit ruled that "the
district court had an evidentiary basis to conclude that at least
one of these individuals was criminally involved in [the
defendant's] scheme." Id. It reasoned that the TPBA Recording
Secretary, who purchased a car from the dealership at an 80%
discount, "had to have known from the size of the discount that
some illegitimate quid pro quo involving the TPBA Treasurer was
the catalyst for the transaction." Id. That knowledge, and the
benefits the TPBA Recording Secretary received, were sufficient
under the clear error standard "to render the TPBA Recording
Secretary a participant and to justify the enhancement." Id.Acevedo acknowledges that Saúl set up the initial
meeting between Lito and the Judge. Saúl then attended meetings
for nearly six months where Lito would pay for outings at
restaurants and bars with money provided by Acevedo. The Judge
requested that Acevedo secure employment at the Treasury
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Department for Saúl, and Saúl gave the Judge his résumé, which the
Judge passed on to Lito. When Acevedo was slow in obtaining the
position for Saúl, Saúl confronted Acevedo at Acevedo's office,
where Acevedo requested more time. While Saúl waited on his job,
Lito employed him, and Saúl "was given money to repair his vehicle
and cash whenever [he] needed."
Given these facts, the district court did not clearly
err by finding that Saúl facilitated, knew of, and benefitted from
the criminal activity. Saúl initiated conversations between Lito
and the Judge, thus providing "assistance in locating [a co-
conspirator] to perform an act in furtherance of the conspiracy".
Saulter, 60 F.3d at 281. While Acevedo declares that Saúl did not
know of the conspiracy and that he was not present when discussions
were held, his actions, including confronting Acevedo about
obtaining a government job, show that Saúl "had to have known . . .
that some illegitimate quid pro quo involving [the defendant] was
the catalyst" for the benefits he received or was promised. See
Zichettello, 208 F.3d at 108. And, as previously described, Saúl
was promised a job, given money, and enjoyed outings paid for with
money provided by Acevedo as part of the criminal activity. These
facts provide sufficient evidence that Saúl was a criminally
responsible participant under U.S.S.G. § 3B1.1(a).
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Because adding Saúl makes five participants, we need not
examine the other three individuals the district court identified,
nor do we need to reach the district court's alternative holding
that the criminal activity was "otherwise extensive."
C. The District Court Followed the Preferred Methodology When It
Determined Acevedo's Sentence
Acevedo contends that his sentence was procedurally
unreasonable because the district court "reversed the required
sequence" of analytical steps when it determined his sentence.
Claims of procedural unreasonableness in sentencing are typically
reviewed for abuse of discretion. United States v. Dávila-
González, 595 F.3d 42, 47 (1st Cir. 2010).
We reaffirmed the recommended method for determining a
sentence in Dávila-González:
[A] sentencing court ordinarily should begin by
calculating the applicable guideline sentencing
range; then determine whether or not any departures
are in order; then mull the factors delineated in 18
U.S.C. § 3553(a) as well as any other relevant
considerations; and, finally, determine what
sentence, whether within, above, or below the
guideline sentencing range, appears appropriate.
Id. at 46 (quoting United States v. Pelletier, 469 F.3d 194, 203
(1st Cir. 2006)).
Acevedo protests that the district court did not follow
this method, but instead began by determining that the maximum
sentence was necessary. To support his argument, Acevedo points
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to a single statement by the district court at the sentencing
hearing:
Every single time that I looked at this case, every
time I evaluated the evidence I was convinced that
one, the guidelines would not be representative and
no other sentence than the maximum sentence was
warranted in your case. The maximum sentence in your
case is that of ten years. But actually I am aware
that I have to consider some other factors . . . .
Acevedo disregards all of the deliberation that preceded
this excerpt, however. In fact, the district court first
calculated Acevedo's recommended sentencing range. It then
considered possible grounds for departure, and weighed relevant
§ 3553(a) factors. As part of its § 3553(a) conduct, the district
court considered some of Acevedo's previous conduct, relevant to,
for example, his "history and characteristics." See 18 U.S.C.
§ 3553(a). Finally, it imposed its sentence, during which it made
the statement plucked out by Acevedo. That is the recommended
procedure, and so the district court's methodology was not
erroneous.
D. The District Court Did Not Abuse Its Discretion By Considering
Evidence of Acevedo's Prior Acts
Acevedo contends that the district court used unreliable
evidence to vary his sentence. In particular, he challenges the
court's findings regarding an incident at the Mesa Criolla
Restaurant (the "Mesa Criolla Incident"), including the district
court's consideration of a letter sent by an off-duty police
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officer who was present at the incident,4 and a second incident in
which Acevedo threatened his cousin, Rafael Lorenzo-López
("Rafi"). We "examin[e] the district court's findings of fact for
clear error."5 United States v. Carpenter, 781 F.3d 599, 608 (1st
Cir. 2015).
1. The Mesa Criolla Incident
Paragraph 129 of the PSR described the Mesa Criolla
Incident:
According to the investigative agents, in the event
known as the Mesa Criolla Incident, on August 23,
2010, at 1:17 am at [M]esa Criolla Restaurant in Moca,
PR, video documentation displays the defendant
brandishing a firearm to Orlando Soto, owner of the
restaurant, and Steven P[é]rez-H[é]rnandez, employee,
after a verbal altercation. A day after the incident,
Orlando Soto alleged that two individuals, Eliezer
Vega Mercado and Elliot Medina Pellot, entered his
business and assaulted him on behalf of the defendant.
At Acevedo's pretrial detention hearing, the Assistant
United States Attorney (the "AUSA") proffered evidence about the
4 Although the district court discussed the letter, it also stated
that, even without the letter, "the full record of the evidence at
trial depicting [Acevedo's] character . . . shows [the] same
characteristics and pattern of conduct." Thus, the district court
made clear that it would have reached the same sentence without
the letter. Any error in admitting the letter would therefore be
harmless, so we do not delve into the letter's reliability. See
Fed. R. Crim. P. 52(a).
5 The Government argues that plain error review applies because
Acevedo did not argue below that the evidence was unreliable.
Because the result would be the same under either clear error or
plain error review, we do not address this contention.
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Mesa Criolla Incident. The proffer included that Acevedo got into
a fight with an off-duty police officer at the Mesa Criolla
Restaurant. After the officer left, the restaurant's owner asked
Acevedo to leave. Acevedo then brandished a gun and threatened
to kill the owner and an employee. An employee disarmed Acevedo,
but Acevedo later returned and demanded the restaurant's
surveillance footage. When the owner refused, Acevedo threatened
him and left. Three men then came to the restaurant, asked the
owner "whether he was the one that had the problem with [Acevedo],"
then beat the owner. The proffer was supported by photographs of
the owner's face and videotape of the beating.
Two men pled guilty to assault related to this incident.
In addition, Acevedo was charged in connection with the Mesa
Criolla Incident, but all charges were dismissed.
2. The Altercation with Rafi
Paragraph 130 of the PSR stated that Acevedo "was
involved in an altercation with [his cousin Rafi], in which
[Acevedo] brandished a firearm. Subsequently, [Acevedo] made life
threats via text messages against his cousin, who ultimately
abandoned the jurisdiction for fear of death."
Rafi also testified about this incident at the Judge's
trial. Relying on Rafi's testimony, the district court found that
Acevedo "pulled a gun and pointed it at [Rafi] while threatening
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to kill him." Rafi subsequently filed a complaint with the state
police, and Acevedo's relative, a police lieutenant, tried to
convince Rafi not to pursue the complaint. That night, Acevedo
"began to send threatening [text] messages" to Rafi, including
threatening to take Rafi's son. Eventually, Acevedo purchased a
plane ticket for Rafi to leave Puerto Rico, and the complaint was
dismissed because Rafi was not present to press charges.
3. The Reliability of the Evidence
The district court relied on these two incidents as
evidence of Acevedo's history of violence, threats, and efforts to
silence witnesses. Acevedo argues that the "negative conclusions
[the district court] drew" from these incidents were erroneous
because the evidence for these incidents was unreliable. The
evidence for the Mesa Criolla Incident "rested largely on out-of-
court statements never subject to adversarial testing."
Similarly, evidence from the detention hearing concerning
Acevedo's altercation with Rafi was "not subject to adversarial
testing," and Rafi's testimony at the Judge's trial about the
incident was unreliable because Rafi was cross-examined "with the
express purpose of casting Acevedo in the worst light possible."
As an initial matter, Acevedo did not object to the
summaries of these two incidents in the PSR, so the district court
could treat those facts "as true for sentencing purposes." United
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States v. Ocasio-Cancel, 727 F.3d 85, 91-92 (1st Cir. 2013)
(upholding a district court's findings where "the defendant did
not object to any aspect of the PSI Report's discussion of local
charges against him that were ultimately dismissed"). The
district court did, however, find additional facts related to those
incidents, so we will address Acevedo's arguments.
Much of the evidence presented at Acevedo's sentencing
hearing was the hearsay proffer of the AUSA. "[T]he sentencing
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. Rodríguez, 336 F.3d 67, 71
(1st Cir. 2003). Indicia of trustworthiness can include
corroboration by other evidence. United States v. Ramírez-Negrón,
751 F.3d 42, 52 (1st Cir. 2014) ("[T]he hearsay testimony was
corroborated by . . . [the agent's] personal knowledge and
observation of the videos."); United States v. Mara, 523 F.3d 1036,
1039 (9th Cir. 2008) ("[T]he statements contained in the [police]
report were sufficiently corroborated so as to provide the
requisite indicia of reliability."). We have similarly allowed
reliance on an AUSA's proffer that, "though uncorroborated, was
thorough and replete with details." Rodríguez, 336 F.3d at 71.
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Here, corroborating evidence presented at the detention
hearing concerning the two incidents included text messages, live
testimony, photographs, video, and court records. It is true that
much of the evidence was not subject to cross-examination, but
"the sentencing court may rely upon 'virtually any dependable
information,' including statements which have not been subjected
to the crucible of cross-examination." United States v. Doe, 741
F.3d 217, 236 (1st Cir. 2013) (quoting United States v. Cintrón-
Echautegui, 604 F.3d 1, 6 (1st Cir. 2010)). "Even conduct that
did not lead to a conviction may be considered." United States
v. Hinkley, 803 F.3d 85, 92-93 (1st Cir. 2015).
Acevedo's contention that the district court erred by
relying on Rafi's testimony from the Judge's trial fails for the
same reason. Although Rafi's testimony may not have been subject
to the type of cross-examination that Acevedo would have preferred,
that is not fatal in and of itself. See Doe, 741 F.3d at 236. In
addition, Rafi's testimony about his altercation with Acevedo was
consistent with the AUSA's proffer at the detention hearing, and
so corroborated by the same evidence. Finally, "the sentencing
judge was also the presiding judge during [all of] the prior
proceedings. Thus, the sentencing judge had the opportunity to
observe the testimony and cross-examination of the various
witnesses and could thereby make an independent assessment as to
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their credibility." United States v. Zuleta-Álvarez, 922 F.2d 33,
37 (1st Cir. 1990).
The district court therefore did not clearly err in
finding that Acevedo was involved in these two incidents and that
they supported an upwardly variant sentence.
E. The District Court Was Not Required to Inform Acevedo That It
Intended to Rely on Evidence from Acevedo's Detention Hearing
and Public Corruption Statistics
A sentencing court "must allow the parties' attorneys to
comment on the probation officer's determinations and other
matters relating to an appropriate sentence." Fed. R. Crim. P.
32(i)(1)(C). "[A] defendant's right to respond to the information
offered against him at sentencing means very little without a right
to notice of that information." United States v. Millán-Isaac,
749 F.3d 57, 70 (1st Cir. 2014); see also United States v. Berzon,
941 F.2d 8, 18 (1st Cir. 1991) ("Th[e] right to be heard has little
reality or worth unless one is informed." (quoting Burns v. United
States, 501 U.S. 129, 136 (1991))).
Citing Millán-Isaac and Berzon, Acevedo first contends
that the district court was required to give him notice, before
his sentencing hearing, that it intended to rely on evidence
presented at Acevedo's detention hearing, particularly with
regards to the Mesa Criolla Incident. In Millán-Isaac, we held
that it was plain error for the district court to consider either
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victim-impact information presented by the government for the
first time at the defendant's hearing or additional facts about
the defendant presented at a co-defendant's separate sentencing
hearing. 749 F.3d at 73. Similarly, in Berzon, we rejected the
government's argument that the defendant had "constructive notice"
that the district court might consider testimony from a co-
defendant's prior sentencing hearing. 941 F.2d at 17-21.
Acevedo's argument, however, hinges on his assertion
that he had no notice that the district court might rely on
information from the detention hearing. A sentencing court has a
"wide scope" of discretion to consider evidence, including
testimony from outside the sentencing hearing if it "timely
advise[s the defendant] in advance of sentencing that it heard or
read, and was taking into account, that testimony." Id. at 21.
Here, the PSR included a summary of the Mesa Criolla Incident, and
it specifically referenced evidence from Acevedo's detention
hearing when discussing his altercation with Rafi. In Berzon, we
"agree[d] entirely" with two cases from other circuits that allowed
sentencing courts to consider evidence presented in related trials
because those defendants' pre-sentence reports contained those
same facts, thus putting the defendants on notice that those facts
might be used. 941 F.2d at 19 (citing United States v. Notrangelo,
909 F.2d 363 (9th Cir. 1990) and United States v. Romano, 825 F.2d
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725 (2d Cir. 1987)). In addition, the detention hearing was part
of the record. Thus, although the PSR did not contain all of the
specific facts discussed by the district court, its summary of the
two incidents, its mention of the detention hearing, and the fact
that the detention hearing was part of the record gave Acevedo all
the notice he needed that the district court might rely on evidence
presented at his detention hearing.
Acevedo also argues that the district court did not give
him prior notice of its intent to rely on public corruption
statistics. Our holding in United States v. Curran governs
sentencing courts' use of documents to which Federal Rule of
Criminal Procedure 32 does not apply -- that is, documents outside
of the PSR. 926 F.2d 59, 63 (1st Cir. 1991). There, we held that
sentencing courts considering documents of that sort "should
either make clear that the document is not being used for its
factual content, or should disclose to the defendant as much as
was relied upon, in a timely manner, so as to afford the defendant
a fair opportunity to examine and challenge it." Id. at 63. Here,
the district court did neither.
However, Acevedo has not shown that any harm or prejudice
resulted from the court's use without notice of these statistics
at sentencing. Nor has he otherwise suggested that the statistics
are in any way problematic. He does argue that the statistics
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"pertain to public corruption in general," rather than judicial
corruption specifically. Yet, this argument is meritless, as his
offenses of conviction are not specific to judicial corruption,
and he fails to explain why considerations of public corruption
generally are inapplicable. Therefore, while the district court
should have provided notice to Acevedo that it intended to use the
statistics in question, its failure to do so amounts only to
harmless error. See United States v. Warr, 530 F.3d 1152 (9th
Cir. 2008) (finding harmless error when the district court relied
on a recidivism study without providing prior notice to the
defendant, but only cited that study for the "common sense
proposition that younger offenders are likely to recidivate").
F. The District Court Imposed a Variance, Not a Departure
Acevedo's final claims of error rest on his contention
that the district court imposed a "departure in the guise of a
variance." Building on this assertion, he argues that the
district court (1) relied on improper grounds for imposing the
departure, and (2) did not allow his counsel an adequate
opportunity to argue why those grounds were improper. We can cut
these arguments off at the root. Although the district court did
discuss a departure under U.S.S.G. § 5K2.7, it specifically stated
that it "did not apply the departure" but instead found that "a
variance [was] applicable." In doing so it considered numerous
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factors under 18 U.S.C. § 3553(a), "the hallmark of a variance."
United States v. Santini-Santiago, 846 F.3d 487, 491 (1st Cir.
2017). Some of the factors it considered might also relate to a
departure, but a sentencing court may "echo" a departure
consideration as one factor in its analysis, while still imposing
a variance. United States v. Aponte-Vellón, 754 F.3d 89, 93 (1st
Cir. 2014).
For the same reason, Acevedo's assertion that he was not
allowed a proper opportunity to object to the imposition of a
departure, even if it had merit, would not require reversal. The
district court imposed a variance, not a departure, and so any
error would be harmless. See Fed. R. Crim. P. 52(a).
III. CONCLUSION
Considering the serious and corrosive nature of
Acevedo's crimes, it would have been more than appropriate for the
district court to have imposed an even higher sentence. For the
reasons stated, we affirm Acevedo's sentence.
Affirmed.
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