Cirilo-Munoz v. United States

United States Court of Appeals
For the First Circuit
No. 02-1846
ERNESTO CIRILO-MUÑOZ,
Petitioner, Appellant,
v.
UNITED STATES OF AMERICA,
Respondent, Appellee.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Héctor M. Laffitte, U.S. District Judge]
Before
Boudin, Chief Judge,
Torruella, Circuit Judge,
and Fusté,* District Judge.
Elaine Pourinski for appellant.
Germán Rieckehoff, Assistant United States Attorney, with whom
H.S. García, United States Attorney, and Sonia I. Torres-Pabón,
Assistant United States Attorney, were on brief for appellee.
April 15, 2005
*
Of the District of Puerto Rico, sitting by designation.
BOUDIN, Chief Judge. In 1995, Ernesto Cirilo-Muñoz
(“Cirilo”) was convicted of aiding and abetting, during the
commission of a drug crime, the murder of an on-duty policeman.
This court affirmed the conviction. United States v. Mangual-
Corchado, 139 F.3d 34 (1st Cir. 1998). Cirilo thereafter sought
relief under 28 U.S.C. § 2255 (2000), which was denied by the
district court, and now seeks review in this court, attacking his
sentence based on ineffective assistance of counsel and under
Blakely v. Washington, 124 S. Ct. 2531 (2004), and United States v.
Booker, 125 S. Ct. 738 (2005).
Our earlier opinion sets forth the facts in detail but,
in substance, the following is what occurred. Jose Lugo-Sanchez
(“Lugo”), Saul Mangual-Corchado (“Mangual”) and David Silva worked
regular shifts selling drugs outside Cafetín El Ideal–-a retail
shop where customers could also drink and play pool--in Trujillo
Alto, Puerto Rico. Cirilo also frequented El Ideal and was said
(by El Ideal’s owner) to be “almost always” with Mangual and Lugo,
although there was no evidence that he sold drugs.
Lugo correctly suspected that one drug customer–-Agent
Ivan Mejias-Hernandez (“Mejias”)–-was in fact an undercover police
officer. In October 1994, one of Lugo’s suppliers ordered Lugo to
kill Mejias, and Lugo in turn told Luis Antonio Ramirez-Ynoa
(“Ramirez”) of his plan. On November 1, 1994, Mejias arrived at El
Ideal between 10:00 a.m. and 11:00 a.m. driving a white Suzuki. At
-2-
around 11:15 a.m., Lugo called Ramirez on the phone from El Ideal,
telling him to drive to El Ideal and to bring “the revolver.”1
Ramirez arrived by 12:30 p.m. with a black Oldsmobile and a
revolver.
Ten to fifteen minutes later, Cirilo arrived at El Ideal
and was greeted by Lugo. Shortly thereafter, Lugo and Mejias
walked to the stoop of a nearby building, where Lugo accused Mejias
of being an informant. Silva and Ramirez arrived at the stoop, and
Lugo walked back toward El Ideal, retrieving the revolver from the
Oldsmobile and concealing it. Walking back toward El Ideal again,
Lugo encountered Cirilo, Mangual and one Yito Morales, and tried
unsuccessfully to incite them to “beat up” Mejias.
Then Lugo, with several others (possibly including
Cirilo), returned to the stoop. There Lugo ordered Mejias at
gunpoint to turn over the keys to the Suzuki. Ramirez and Mangual
then searched the Suzuki and retrieved Mejias’ gun. Cirilo was
standing “real close to the car but not searching,” just “looking”;
his fingerprints were found on the Suzuki, although no evidence was
presented as to when he touched the car.
Mejias, escorted by Lugo, then returned to the Suzuki
from the stoop and retrieved his keys. Lugo told him to get into
the car and “not to come around there anymore.” However, as Mejias
1
Quotes such as these throughout this decision are taken from
the trial transcript.
-3-
was about to leave, another man called “Papilin” told Lugo, “You
have to take him or kill him because he might come back.” There
was no direct evidence that Cirilo heard this exchange, and the
evidence was unclear as to where Cirilo was standing (or where
Papilin and Lugo were standing) when this command was given.
Lugo then ordered Mejias into the Suzuki, and Mangual
drove the Suzuki onto the highway with Mejias and Lugo in the back
seat. Shortly thereafter, Lugo shot Mejias in the abdomen and in
the head. Cirilo and Ramirez followed in the Oldsmobile, with
Cirilo driving, although there was no evidence as to why. Lugo
later testified that he had not told Cirilo about the planned
murder and that he (Lugo) had not asked that Cirilo follow.2
The cars stopped at a cemetery. Whether Mejias was still
alive is unclear but in any event Ramirez shot Mejias twice more in
the head. The men then drove in the two cars to a quarry (during
the drive Cirilo ingested cocaine provided by Lugo); the Suzuki
(with Mejias’ body in it) was pushed into the quarry. The men then
left the quarry in the Oldsmobile driven by Cirilo. Lugo split the
$240 he had taken from Mejias’ wallet with the others. Cirilo
finally drove Lugo home.
2
It should be noted that Lugo had also told two different and
later-recanted versions of events to the FBI before trial, at least
one of which incriminated Cirilo. Given Cirilo’s conviction, it is
uncertain whether the jury credited Lugo’s exculpatory statement at
trial.
-4-
Mangual, Ramirez, Lugo and Cirilo were apprehended and,
in September 1995, Cirilo was convicted after a jury trial in
federal court of aiding and abetting the murder of an on-duty law-
enforcement officer during the commission of a drug offense, 21
U.S.C. § 848(e)(1)(B) (2000); 18 U.S.C. § 2 (2000). On appeal,
Cirilo argued that the evidence was insufficient to establish the
aiding and abetting offense but, with one judge dissenting on this
issue, the conviction was affirmed. Mangual, 139 F.3d at 44-49;
id. at 49-56 (McAuliffe, J., dissenting in part).
At sentencing in January 1996, the district judge found
that Mejias’ killing was motivated by his status as a police
officer, resulting in a three-level enhancement under the
sentencing guidelines, U.S.S.G. § 3A1.2(a). This raised Cirilo’s
sentencing range from about 27 to 34 years, to required life
imprisonment. At sentencing Cirilo’s trial counsel objected to the
enhancement, arguing that the government had not shown that Cirilo
knew that Mejias was a police officer. The issue was not raised on
appeal.
On September 29, 1999, Cirilo filed a petition for post-
conviction relief under 28 U.S.C. § 2255 (2000),3 attacking his
sentence in various respects. The district court denied the
3
Under section 2255, a federal court that imposed a sentence
may vacate or correct it if “the sentence was imposed in violation
of the Constitution or laws of the United States . . . or . . . the
sentence was in excess of the maximum authorized by law, or is
otherwise subject to collateral attack.”
-5-
petition, concluding inter alia that the court at sentencing had
correctly applied the enhancement and that the lawyer’s failure to
raise the issue on appeal did not violate Cirilo’s constitutional
rights. We granted a certificate of appealability, id. § 2253(c),
directed to this claim and later broadened review to encompass a
Sixth Amendment claim as well.
An ineffective assistance claim requires the defendant–-
who bears the burden of proof, Scarpa v. DuBois, 38 F.3d 1, 8-9
(1st Cir. 1994)–-to show (1) that counsel’s performance fell below
an objective standard of reasonableness, and (2) that but for
counsel’s failures, the outcome would likely have been different.
Strickland v. Washington, 466 U.S. 668, 687 (1984); Cofske v.
United States, 290 F.3d 437, 441 (1st Cir. 2002). We review the
district court’s underlying factual findings for clear error, but
review its ultimate legal conclusions de novo. Reyes-Vejerano v.
United States, 276 F.3d 94, 97 (1st Cir. 2002); Cody v. United
States, 249 F.3d 47, 52 (1st Cir. 2001).
Because counsel is entitled to exercise professional
judgment, Cirilo must show that an attack on his sentencing
enhancement on direct appeal “was so obvious and promising that no
competent lawyer could have failed to pursue it.” Arroyo v. United
States, 195 F.3d 54, 55 (1st Cir. 1999). We believe that test is
met in this instance: the enhancement, which had a dramatic effect
-6-
on the sentence, rested on very thin evidence and a possible
misinterpretation of the jury verdict by the district court.
During the sentencing hearing, the judge asked (and was
answered in the affirmative), “Didn’t the jury find that this
victim was killed . . . because he was a police officer?” Later
(during a discussion of a minor-participant adjustment), Cirilo’s
lawyer suggested that even though Cirilo followed in the
Oldsmobile, “that doesn’t mean that [Cirilo] knew that [Lugo] was
going to kill and that [Mejias] was a police officer. He may have
been surprised when--”. The court responded “that’s what the jury
decided.”
If the district judge was referring to knowledge of
Mejias’ status, this is not what the jury had decided; the court’s
instructions to the jury stated that “[k]nowledge of the victim’s
status as a law enforcement officer is not necessarily an element
of the offense.” Although the jury was instructed that Cirilo
needed to know that murder was intended, the jury was not required
by the instruction to find that Cirilo knew that the victim was a
police officer.4 The distinction between levels of knowledge is a
fine one but it mattered to the particular enhancement.
4
Whether 21 U.S.C. § 848(e)(1)(B) itself or its aiding-and-
abetting variant require knowledge of the victim’s status as a
police officer is not clearly addressed by circuit case law, but
the jury instructions in this case said that such knowledge was not
necessarily required.
-7-
Whether this possible misperception affected the district
judge’s ruling is unclear. In the sentencing hearing, the district
judge did make a formal finding that Cirilo knew that the victim
was a police officer when he (Cirilo) assisted in the venture. But
there was no detailed discussion by the district judge of the
evidence on which such a finding might rest. Ordinarily it is
enough that sufficient evidence exist, but in this instance the
evidence is thin and the basis for the inference drawn by the
district judge is not apparent to us.
The conviction itself rested on fairly limited evidence
of scienter, but an inference that Cirilo was involved in the plot
could be drawn from Cirilo’s presence at the scene of incitement
and threat, his prints on the car, his otherwise unexplained
pursuit of the Suzuki with a party to the plot, his presence when
the victim was shot again and his sharing of the proceeds. Other
contextual clues were the other perpetrators’ willing acceptance of
Cirilo’s presence during the events leading up to Mejias’ death,
and evidence of Cirilo’s indebtedness to Lugo’s supplier which may
have given Cirilo a motive to assist.
It is much harder, on what we can find in this record and
without more explanation, to see why Cirilo should be taken to have
known that the intended victim was a police officer.5 Cirilo’s
5
The guideline, unlike the statute, explicitly requires that
Cirilo’s offense have been “motivated by” Mejias’ status as an
officer. U.S.S.G. § 3A1.2(a). This ordinarily would entail
-8-
conduct and continued presence may be difficult to explain if he
were not aware that Mejias would be killed; the panel that affirmed
the conviction so reasoned. But even with this awareness, Cirilo
might have thought that Mejias was an informant or a member of a
rival drug supply organization; or Cirilo might have assisted his
associates’ efforts to kill a man without knowing just why they
were doing it. Had any of these been Cirilo’s motivation, the
enhancement would not apply.
Although Lugo at one point testified that he suspected
Mejias of being “a police officer,” he also testified that he had
confronted Mejias and told him that “as far as I was concerned he
was a police informant” and “a snitch,” and that he told Silva to
find out if Mejias was really “a police informant or what.”
Particularly if Lugo’s expressed concern was that Mejias was an
informant (and not that he was an officer), it is unclear why the
district judge thought that Cirilo knew or believed Mejias was a
police officer and thus that his assistance in the murder was
motivated by Mejias’ official status.
The government says that the omission of the enhancement
issue on direct appeal was simply a “tactical judgment.” Murchu v.
knowledge or belief that the victim is an officer, see, e.g.,
United States v. Garcia, 34 F.3d 6, 13 (1st Cir. 1994) (knowledge
of victim’s status established motivation); United States v. Salim,
287 F. Supp. 2d 250, 307-08 (S.D.N.Y. 2003) (same), and at least
one court has said that knowledge is necessary. United States v.
Park, 988 F.2d 107, 110 (11th Cir. 1993).
-9-
United States, 926 F.2d 50, 58 (1st Cir. 1991). Yet the argument
would not have detracted from the evidentiary challenge to the
conviction but would have built upon it. It had the further
advantage of focusing on the district court’s arguable conflation
of the two different scienter issues. And it represented the
difference between a long jail sentence and a life sentence. One
would need a potent reason for omitting the enhancement argument
from the direct appeal.
Assuming that the omission of the argument was
deliberate, the best one can say for counsel is this: that in some
situations lawyers think--usually in error--that by omitting a good
argument, they can thereby increase the chance of prevailing on a
more doubtful argument directed to a more far-reaching result.
However, in this instance, such a calculation would have been
manifestly unreasonable under an objective standard, given the
comparative strengths of the two different attacks, the opportunity
to make both, and the stakes for the defendant.
The second stage of the Strickland inquiry requires a
“reasonable probability that, but for counsel’s unprofessional
errors, the result . . . would have been different.” Epsom v.
Hall, 330 F.3d 49, 53 (1st Cir. 2003) (quoting Strickland, 466 U.S.
at 694) (omission in original). We think that had the enhancement
issue been pressed on direct appeal, it would have altered the
outcome of the appeal. This is so because of the thinness of the
-10-
evidence to support the enhancement, the lack of detailed
explanation for the finding of knowledge, and the court’s apparent
error in relying at least in part upon the jury verdict for a
finding that the jury did not visibly make.
Some errors that result in a defendant losing the benefit
of his appeal may be remedied by reinstating the appeal, see United
States v. Torres-Otero, 232 F.3d 24, 30-32 (1st Cir. 2000), but in
this instance our second-stage Strickland ruling renders this
interim step pointless. The government has already had its
opportunity on this appeal to defend the enhancement, and we
already know that our own disposition of the direct appeal would
have been to remand for re-sentencing. We therefore do so now.
We have had to make our assessment of the constitutional
claim based on our own unaided review of the record and without any
clear understanding of the district judge’s reasoning in finding
that Cirilo knew in advance of the crime that the victim was a
police officer. Conceivably, on re-sentencing, the government may
again urge that such knowledge existed. Without foreclosing such
an argument by the government, we are highly skeptical that such a
premise can be established or that a life sentence can be justified
on the known facts.
Cirilo’s brief may be taken to raise a separate claim
under section 2255 that his sentence should be vacated because the
enhancement was supported by inadequate evidence. This issue--
-11-
unlike the ineffective assistance claim covered by the certificate
of appealability and the Sixth Amendment claim that we later
expressly permitted Cirilo to pursue–-is not properly before us as
an independent claim. Further, the use of section 2255 to attack
sentencing findings is, if permissible, at best limited to very
unusual cases. It also is likely that on remand the issue will
disappear from the court.
As part of his section 2255 petition, Cirilo filed a
supplemental brief seeking additional review of his sentencing in
light of the Supreme Court’s decision in Blakely v. Washington, 124
S. Ct. 2531 (2004), which we allowed. Cirilo urges resentencing
because the jury did not find beyond a reasonable doubt that he
believed that Mejias was a police officer. Blakely claims are now
viewed through the lens of United States v. Booker, 125 S. Ct. 738(2005).
Only in limited circumstances do new rules apply to
convictions that have already become final. Schriro v. Summerlin,
124 S. Ct. 2519, 2522 (2004).6 These exceptions include rules
that “prohibit criminal punishment for certain types of primary
conduct,” and those that “forbid the imposition of certain
6
Cirilo’s conviction became final in 1998, when certiorari as
to the direct appeal was denied. Cirilo-Muñoz v. United States,
525 U.S. 942 (1998). Because finality preceded even Apprendi v.
New Jersey, 530 U.S. 466 (2000), Booker certainly announced a “new
rule” to which the described retroactivity doctrine applies. See
Beard v. Banks, 124 S. Ct. 2504, 2511 (2004).
-12-
categories of punishment for particular classes of defendants.”
Sepulveda v. United States, 330 F.3d 55, 59 (1st Cir. 2003); see
Schriro, 124 S. Ct. at 2522-23. Neither rubric describes this
case.
Otherwise, new rules are applied retroactively to cases
already final only if they are “watershed rules of criminal
procedure implicating the fundamental fairness and accuracy of the
criminal proceeding.” Schriro, 124 S. Ct. at 2523 (internal
quotation marks omitted). Cirilo’s version of the error (under
Blakely) was that the enhancement finding was made by the judge
based on a preponderance of the evidence; Booker has preserved the
use of judge-made findings by directing that the guidelines
hereafter be treated as advisory rather than mandatory guidelines.
See United States v. Antonakopoulos, 399 F.3d 68, 75 (1st Cir.
2005).
In our view, the use of judge-made findings at sentencing
does not undermine “accuracy” (in terms of substantially different
outcomes) or undermine fundamental fairness. Such judge-made
findings have been the conventional practice throughout our
nation’s history. They will, post-Booker, continue to be the rule
where the sentence is within statutory limits. We have already
decided that Apprendi, 530 U.S. at 430, which provides jury trials
for increasing statutory maximums, would not apply retroactively.
-13-
See Sepulveda, 330 F.3d at 61-63. This resolves any comparable
Blakely-like claim in this circuit.
As for the application of mandatory rather than advisory
guidelines, it is unclear that advisory guidelines will alter a
great number of sentences; mandatory minimums imposed by statute
are another question altogether. The guidelines remain a central
consideration in sentencing; and sentencing courts must still
consider the same statutory factors that the Sentencing Commission
was required to use in promulgating the guidelines. See 18 U.S.C.
§ 3553(a) (2000); 28 U.S.C. § 994(m) (2000). To describe the use
of mandatory guidelines as generating serious inaccuracy or
fundamental unfairness would not be easy.
Realistically, it is unlikely that the Supreme Court will
adopt a retroactivity analysis that opens up to required
reexamination practically all of the federal sentences imposed
since the guidelines went into effect in 1987. This would comprise
tens of thousands of sentences imposed under a regime whose
lawfulness was assumed during most of this period. If such a vast
reopening of final judgments is required, it must await a decision
of the Supreme Court. Certainly Booker itself does not give any
clear hint that retroactive effect is intended.
Every other circuit that has considered this issue has
agreed that Booker does not apply retroactively. See Varela v.
United States, 400 F.3d 864, 866-68 (11th Cir. 2005); Humphress v.
-14-
United States, 398 F.3d 855, 860-63 (6th Cir. 2005); McReynolds v.
United States, 397 F.3d 479, 480-81 (7th Cir. 2005); United States
v. Mitchell, 2005 WL 387974, at *1 (2d Cir. Feb. 18, 2005)
(unpublished); United States v. Leonard, 2005 WL 139183, at *2
(10th Cir. Jan. 24, 2005) (unpublished).
Cirilo’s sentence is vacated and the matter remanded to
Judge Laffitte for resentencing. We leave it to the parties and to
the district court to resolve in the first instance whether this
new sentencing, which will occur post-Booker, should be governed by
the advisory guideline regime. Although failure to use advisory
guidelines is not the basis for the remand, the issue of their use
once the remand is ordered on other grounds remains open for
resolution.7
It is so ordered
Concurrence Follows.
7
We note that several courts of appeals have said that the
advisory guidelines regime is to be used after Booker, even where
remands for resentencing were not caused by a Booker error. See,
e.g., United States v. Gutierrez-Ramirez, ___ F.3d ___, 2005 WL
762664, at *6 (5th Cir. Apr. 5, 2005); United States v. Doe, 398
F.3d 1254, 1261 n.9 (10th Cir. 2005); United States v. Gleich, 397
F.3d 608, 615 (8th Cir. 2005).
-15-
TORRUELLA, Circuit Judge (Concurring).
Lugo's cold-blooded murder of Officer Mejías
was as horrible a crime as can be committed.
On that point we can agree. If the horrible
nature of the murder added some weight to the
record evidence supporting the aiding and
abetting charge against Cirilo-[Muñoz], then I
would gladly join my colleagues in affirming
his conviction. But it does not.
United States v. Mangual-Corchado, 139 F.3d 34, 49 (McAuliffe, J.,
dissenting in part). This is the dissenting judge's view on direct
appeal regarding the sufficiency of evidence on the aiding and
abetting charge, a matter which we are presently foreclosed from
revisiting on the merits. Nevertheless, the facts surrounding this
conclusion are not irrelevant to the issues before us. This is
particularly so in light of the majority's recognition, especially
in its discussion of appellant's claim of ineffective assistance of
counsel, of the "thinness" of the evidence supporting
Cirilo-Muñoz's knowledge that the victim was a police officer. See
maj. op. at 7, 8, 10.
I write separately in part because I have considerable
disagreement with the majority's glossing of the events as they
unfolded prior to the police officer's murder by Lugo. Although my
view of the relevant facts might, at first glance, appear to bog
down on minor details, those facts are significant precisely
because of the "thinness" of the case against Cirilo-Muñoz, and
because that "thinness" is on a broader scale than my colleagues in
the majority acknowledge.
-16-
First, there is no evidence that Cirilo-Muñoz was present
at "El Ideal" on the day in question as part of Lugo's drug-selling
gang. Cirilo-Muñoz lived only five minutes' walking distance from
this neighborhood hangout, which he regularly frequented to listen
to music, play pool and talk to other youths. There is no evidence
that he sold drugs, although the record does show that he was a
drug user. Second, there is no evidence that Cirilo-Muñoz's
presence at "El Ideal" on November 1, 1994, was at the behest of
Lugo or of anyone in his gang. When he arrived, Lugo was already
there, and the evidence is uncontradicted that Cirilo-Muñoz was
unaware of the reason for Lugo's presence and his intent to harm
the undercover police officer, Mejías. In fact, the record is
clear that later, when Lugo tried to incite several of those
present to "beat up" Mejías, appellant flat out refused to do so.8
Furthermore, there is no evidence, and no valid inference can be
made from the record, that Cirilo-Muñoz was on the stoop at any
time on November 1st when Lugo and his cohorts were accosting Agent
Mejías. The majority's statement to the effect that Cirilo-Muñoz
"possibly" was on the stoop, maj. op. at 3, is pure speculation.
In fact, the evidence is to the effect that Cirilo-Muñoz did not
exit "El Ideal" until after Ramírez and Mangual came out of the
stoop to search Mejías's car for the agent's gun. Cirilo-Muñoz did
8
It would seem that if Cirilo-Muñoz was disinclined to "rough"
Mejías up, he would even be less agreeable to aid in his murder, a
fact that, as I will further discuss, is borne out by Lugo's
exculpatory evidence.
-17-
not participate in the search and "was just looking." The
fingerprints found on Mejías's car matching Cirilo-Muñoz supports
this account, as they were all lifted from the exterior portions of
the car. No evidence exists as to when they were imprinted there.
It is with regard to the evidence surrounding the murder
of Agent Mejías that I find the majority's statement of the facts
most problematic because I believe it unfairly places an aura of
knowledge of the events to follow on appellant. This implication
of knowledge is unsupported by the "thin" record, so "thin" that
the government, who is the one properly called upon to meet this
burden under our system of justice, has verily skated through the
ice.
In this regard, the majority states that "[t]here was no
direct evidence that Cirilo-[Muñoz]" heard the exchange between
Lugo and "Papilín" in which "Papilín" told Lugo to "take or kill"
Mejías, and that "the evidence was unclear as to where Cirilo-
[Muñoz] was standing (or where Papilín and Lugo were standing) when
this command was given." Maj. op. at 4. If that is so -- i.e., if
the evidence is not direct and is unclear -- what should follow,
considering that this is a criminal case in which the unstated
premise of these statements carries serious consequences for the
appellant, is a statement by the majority to the effect that no
inference of knowledge regarding this conversation may be imputed
upon Cirilo-Muñoz. But no such disclaimer is made. Instead, we
-18-
are left with the worst kind of imputation, a half-inference, a
lingering doubt as to what appellant has to answer for, and a vague
question mark as to what weight is actually being given by the
court to this non-evidence.
This rustling of soft "evidence" is followed by the
majority's downgrading of the only direct evidence presented
regarding Cirilo-Muñoz's lack of knowledge of Mejías's fate. See
Maj. op. at 4, n.3. Lugo, the person who actually murdered Mejías,
and who took the stand as a government witness, testified that
after he shot Mejías upon leaving "El Ideal" in a car with Mangual,
he observed that Cirilo-Muñoz and Ramírez were following them in
another car. Lugo testified that he had not asked Cirilo-Muñoz and
Ramírez to follow them. In fact, Lugo testified that Cirilo-Muñoz
only knew about beating Mejías, but that at that time "didn't know
that he was going to be killed."9 Although the majority points to
Lugo's earlier statement to the F.B.I. that incriminated appellant,
this statement was made when Lugo was looking to make a deal for
himself with the government. By the time of trial, however, Lugo
no longer had anything to gain by wrongly implicating Cirilo-Muñoz.
In light of the full factual background of this appeal,
I am concerned about the majority's decision to remand for
resentencing to the same judge who sentenced appellant originally
9
Even Mangual, the driver of the Oldsmobile carrying Lugo and
Agent Mejías, was shocked and lost control of the car when Lugo
first shot Mejías. Mangual asked "What did you do?," to which Lugo
responded "Keep driving or you're next."
-19-
and who also decided his § 2255 petition. This judge had two bites
at the apple to do so, and in each instance insisted that the
"whole picture" supports Cirilo-Muñoz's enhancement.10 Yet our own
examination of the entire trial transcript failed to produce any
evidence establishing Cirilo-Muñoz's knowledge of the victim's
status as an officer.11 The majority's failure to address the
10
The district judge stated that he looked at the "whole
picture" to infer that the "defendant knew that the victim was a
police officer and [that] he was being killed because he was a
police officer." As evidentiary support, the judge cited the
following: (1) Cirilo-Muñoz's arrival 10-15 minutes after Ramírez's
arrival; (2) the proximity between the stoop and El Ideal; (3)
Lugo's solicitation of Cirilo-Muñoz and others to "beat up" Mejías;
(4) Cirilo-Muñoz getting into the car with Ramírez; (5) the
inference that Cirilo-Muñoz and Ramírez must have heard the two
shots from the Oldsmobile; and (6) Cirilo-Muñoz following in the
car, sharing in the money, and driving Lugo home. However, even if
we take all these facts in the light most favorable to the court's
interpretation, the aggregate fails to establish Cirilo-Muñoz's
knowledge of Mejías's status as an officer. The proffered evidence
also falls significantly short of instances where we have found
such "reasonable belief" of the victim's status to support the
enhancement. See United States v. García, 34 F.3d 6, 13 (1st Cir.
1994) (record supports § 3A1.2 enhancement because evidence
indicated that the police officers displayed their identification
as they approached defendant and yelled "police"); United States
v. Carrillo-Figueroa, 34 F.3d 33, 42-43 (1st Cir. 1994) (record
supports § 3A1.2 enhancement because defendant saw that the
"vehicle that [the officer] was driving exhibited characteristics
identifying it as an official vehicle); United States v.
Zaragoza-Fernández, 217 F.3d 31, 32-33 (1st Cir. 2000) (record
supports § 3A1.2 enhancement because of "abundant evidence that
defendant saw [the officer] in front of his car [and] had reason to
appreciate that he was a law enforcement officer").
11
As explained, Cirilo-Muñoz did not engage in any of the
conversations regarding Lugo's suspicion of Mejías as an officer --
Cirilo-Muñoz was not present when Lugo accused Mejías of being an
officer, he was not present when Lugo called Ramírez, he was not
brought to the stoop to discuss Mejías, and he was not present when
Mejías was abducted. We found no evidence that Lugo ever told
Cirilo-Muñoz of his suspicion of Mejías's status, much less of his
-20-
district judge's reasoning and obstinate conclusion has provided an
implicit roadmap for the same judge to reimpose a similarly harsh
sentence, thus possibly making this remand an exercise in futility.
In fact, there is little said in the majority opinion, or
for that matter, in this concurrence, that the trial judge, who
heard the flimsy evidence against appellant, was not aware of when
he sentenced appellant. Furthermore, from the transcript of the
sentencing hearing, a small flavor of which is reproduced in the
majority opinion, maj. op. at 7, it is apparent that this judge was
not greatly interested in hearing the argument of counsel.12 This
tone is reproduced again when we see the short shrift given by the
same judge to appellant's § 2255 petition, in which he found
without much ado not only that he had properly applied the
enhancement based on appellant's knowledge of the victim's status
intent to kill Mejías. This is supported by the fact that even
Mangual, the driver, was shocked when Lugo shot Mejías, by Lugo's
initial decision to let Mejías drive away, and by Cirilo-Muñoz's
refusal to "beat up" Mejías. We also found no evidence to support
any inference that Cirilo-Muñoz suspected Mejías's status prior to
the murder, especially given that Mejías often acted outside his
official duties. Evidence at trial shows that Mejías purchased
crack and gave it to a prostitute, he regularly ordered a flask
filled with rum, he drank and played pool with Cirilo-Muñoz and
others, and he brandished a gun during a serious confrontation with
a debtor. Even Lugo began to have doubts about Mejías's status.
As the majority recognizes, "if Lugo's expressed concern was that
Mejías was an informant (and not that he was an officer), it is
unclear why the district judge thought that Cirilo-Muñoz knew or
believed Mejías was a police officer." Maj. op. at 9.
12
As counsel was about to argue Cirilo-Muñoz's lack of
knowledge, the judge interrupted and stated: "[c]ounsel, that's
what the jury decided. I'm not going to get into that."
-21-
as an officer -- of which there is not a shred of evidence anywhere
on the record -- but also that defense counsel's failure to raise
this issue on appeal did not violate Cirilo-Muñoz's constitutional
rights.
In my opinion, these recurrent conclusions by the trial
judge are not only legally erroneous, which the majority
recognizes, but also demonstrate an obstinate predisposition to
reach a set conclusion in this case. Resentencing should therefore
take place before a different judge. See, e.g., United States v.
Muñiz, 49 F.3d 36, 41 (1st Cir. 1995) (remanding for resentencing
by a different judge where, inter alia, the original judge based
his sentence on unsupported factfindings); Mawson v. United States,
463 F.2d 29, 31 (1st Cir. 1972) ("It is difficult for a judge,
having once made up his mind, to resentence a defendant, and both
for the judge's sake, and the appearance of justice, we remand this
case to be redrawn."). I simply see no reason why this
"reassignment would entail waste and duplication out of proportion
to any gain in preserving the appearance of fairness." See
Maldonado Santiago v. Velázquez García, 821 F.2d 811, 832-33 (1st
Cir. 1987). See also United States v. Hanono-Surujun, 914 F.2d 15(1st Cir. 1990) (remanding to a different judge where a rule has
not been fully complied with and there has been a sharp upwards
departure from the Guidelines).
-22-
Even stretching it to the breaking point, Cirilo-Muñoz's
"participation" and his knowledge of events was minimal and paled
when compared to the actions of Lugo -- who not only was the leader
and principal culprit, even if the government gave him a sweetheart
deal -- but he was the cold-hearted killer of Officer Mejías. Yet
Cirilo-Muñoz received a sentence of life imprisonment as compared
with the twenty years imposed upon Lugo. This, after the district
judge's "possible misperception[s]" led him to make "a formal
finding that the victim was a police officer when he assisted in
the venture. But there is no detailed discussion of the evidence
on which such a finding might rest." Maj. op. at 8. Of course,
there is no evidence in the record that Cirilo-Muñoz possessed the
requisite knowledge that the district judge attributed to him,
unless he acquired it by extra sensory perception, or that he
"assisted in the venture,"13 unless this term has acquired a new
meaning.
This is a case which started out on the wrong foot.
Unfortunately it appears destined to continue to suffer permanently
from this handicap. "Nothing is more damaging to a new truth than
an old error." Goethe, Spruche in Prosa.
13
The evidence highlighted by the majority -- appellant's
presence in the cemetery when Ramírez shot Mejías in the head, who
was presumably already dead, as well as appellant receiving
Mejías's money and driving Lugo home -- would make Cirilo-Muñoz an
accessory after the fact, 18 U.S.C. § 3, not an aider and abetter.
-23-