Professional Documents
Culture Documents
No. 14-1101
UNITED STATES OF AMERICA,
Appellee,
v.
HCTOR CORTS-MEDINA,
Defendant, Appellant.
Before
Lynch, Selya and Lipez,
Circuit Judges.
January 6, 2016
SELYA,
Circuit
Judge.
In
this
sentencing
appeal,
is
both
procedurally
flawed
and
substantively
The
to
possess
with
intent
to
distribute
controlled
See 21
The Agreement
The
district court accepted the plea, and the probation office prepared
a presentence investigation report (PSI Report).
Neither side
things)
recommended
series
of
guideline
calculations
-2-
counsel
and
defendant
himself,
and
the
court
The
had
resulted
expressed frustration.
in
any
punishment,
the
district
court
It then added,
timely
appeal
ensued.
Although
the
Agreement
with
recommendations."
the
Agreement's
"terms,
conditions
and
is
"[a]ppellate
characterized
by
review
a
of
frank
federal
recognition
criminal
of
the
United
The
38, 46 (2007); United States v. Martin, 520 F.3d 87, 92 (1st Cir.
2008). When assessing the procedural reasonableness of a sentence,
however, appellate review is more nuanced: we afford de novo
consideration
to
the
sentencing
-4-
court's
interpretation
and
It
"entails four showings: (1) that an error occurred (2) which was
clear or obvious and which not only (3) affected the defendant's
substantial rights, but also (4) seriously impaired the fairness,
integrity, or public reputation of judicial proceedings."
Id.
the
"Application
of
Law
and
Arguments"
section
of
the
Fed. R.
Mercado, 784 F.3d 838, 846, 847 (1st Cir. 2015); United States v.
Turbides-Leonardo, 468 F.3d 34, 37 (1st Cir. 2006).
Such a waiver
occurred here.
Nor did the passing reference to the charges in the
background section of the sentencing memorandum cure this omission.
That
reference,
particularly
when
not
followed
up
by
some
-6-
While our
was
"implicit
in
[the
defendant's]
contentions"
at
We conclude, therefore,
See id. at
which was laid out in the PSI Report and not contested by the
defendant.
United States v. Jimnez, 512 F.3d 1, 7 (1st Cir. 2007), and thus
properly before the district court.
As we
That the
Aponte, 689 F.3d 791, 792 (1st Cir. 2012) (quoting United States v.
Zapete-Garcia, 447 F.3d 57, 61 (1st Cir. 2006) (internal quotation
marks omitted)); accord United States v. Ocasio-Cancel, 727 F.3d
85, 91-92 (1st Cir. 2013).
reason to assert (as does our dissenting brother) that there was a
clear or obvious error in the district court's consideration of the
defendant's full arrest record at the final step of the sentencing
-8-
proceeding.
Cf. United
There is
not
the
slightest
reason
to
think
that
the
district
court
overlooked them.4
No more is needed to defeat this claim of error.
Even
in
the
sentencing
We have no occasion to
court's
failure
to
acknowledge
court "at the time of sentencing, shall state in open court the
reasons for its imposition of the particular sentence" and, if the
GSR spans more than 24 months, shall also state "the reason for
imposing a sentence at a particular point within the range."
18
U.S.C. 3553(c). The defendant says that the sentencing court did
not adequately comply with these strictures and that, therefore,
his sentence must be vacated.
The defendant's premise is sound: the sentencing court's
explanation of its reason for choosing a top-of-the-range sentence
of 168 months is recondite at best.
The
defendant did not raise this objection below, and we have held that
a district court's failure to provide an adequate explanation of a
sentence, without more, is not sufficient to constitute plain
error.
Such items
-11-
See United States v. Rivera Caldern, 578 F.3d 78, 104-05 (1st Cir.
2009).
Transparency at sentencing is important, and we do not
readily condone a district court's failure to comply with the
obligations imposed by section 3553(c).
defendant's
final
claim
of
error
embodies
167 (1st Cir. 2015); United States v. Ruiz-Huertas, 792 F.3d 223,
-12-
reasonableness
of
sentence
the
abuse
of
United States v.
guidelines
in
the
sentencing
calculus).
Indeed,
-13-
fairly
powerful
mitigating
reasons
and
persuade
us
that
the
He first
best
position
to
weigh
the
credibility
of
claim
of
increase his offense level, and section 5K2.23 does not apply.
To say more would be to paint the lily.
Here, the
conclude that the district court did not abuse its considerable
discretion in sentencing the defendant at the top of but within
the GSR.
greater
than
necessary
to
achieve
the
legitimate
goals
of
sentencing.
The fact that the parties jointly agreed to recommend a
lower (downwardly variant) sentence does not alter this conclusion.
In
the
absence
of
exceptional
circumstances
(such
as
the
-15-
Thus, we have
See
29.
We need go no further.6
Affirmed.
My colleagues treat
Neither
Supreme Court precedent nor our own cases support treating as fact
mere allegations of criminal behavior that are not substantiated by
at least a preponderance of the evidence.
clear that, where the evidence of culpability does not meet that
level of reliability, the district court errs by factoring unproven
charges into the sentence.
Corts-Medina
did
not
object
to
the
portion
of
his
as
he
has
not
argued
memorandum
the
that
the
arrests
and
subsequent
foundation
for
many
of
the
He further
Moreover, even if plain error review applies, CortsMedina would satisfy its requirements.10
As I explain below, a
The error
(1) plain error for the claim that the district court improperly
considered acquitted and dismissed charges; (2) abuse of discretion
for the claim that the court failed to adequately consider the
factors set forth in 18 U.S.C. 3553(a); (3) plain error for the
claim that the court failed to provide an adequate explanation of
the chosen term of imprisonment; and (4) an uncertain standard of
review for the defendant's challenge to the substantive
reasonableness of his sentence (leading the majority to apply abuse
of discretion).
10
The four elements of the plain error test are: (1) an error
that was (2) clear or obvious, which both (3) affected the
defendant's substantial rights and (4) "seriously impaired the
fairness, integrity, or public reputation of judicial proceedings."
United States v. Ramos-Gonzlez, 775 F.3d 483, 499 (1st Cir. 2015)
(quoting United States v. Ramos-Meja, 721 F.3d 12, 14 (1st Cir.
2013)).
11
United
was
unable
to
obtain
information
about
the
conduct
As the majority
United
Cir. 2012)).
fact,
and
thus
properly
before
the
district
court."
(Citation omitted.)
I agree with the general proposition that past criminal
acts that did not result in conviction may be given weight in
sentencing determinations if the available proof of those criminal
acts meets some standard of reliability.
I do not understand my
Nevertheless, when
There,
majority
insists
that
Watts
is
inapplicable
Id. at 157.
because
the
-22-
non-conviction arrests and prosecutions are reported accurately -in all likelihood, the PSR will contain an accurate record of
detentions and charges -- but whether the defendant in fact
committed
the
listed
offenses
notwithstanding
the
absence
of
Zapete-Garcia, 447 F.3d 57, 61 (1st Cir. 2006) (noting that "arrest
12
to
charges.
the
inquiry
into
the
conduct
underlying
unproven
standard
at
sentencing
generally
satisfies
due
-24-
standard
less
demanding
than
preponderance-of-the-evidence
to
sentencing
be
proved
by
preponderance
of
the
evidence," 519 U.S. at 156, and the majority goes on to make the
observation quoted above linking the preponderance standard with
the requirements of due process.
Id.14
In addition, as described
13
The
commentary
invoked
by
the
Court
-25-
states:
"The
Commission
above, the Court framed its holding in Watts broadly, without any
suggestion that the preponderance standard applies only for the
purpose of selecting the Guidelines range: a sentencing court is
permitted,
in
general,
to
consider
"conduct
underlying
the
Id. at 157.
He asserts that
"some
higher
standard
of
probative
worth
than
the
concurring).15
Third, and consistently, the Watts Court acknowledged the
possibility that, in some circumstances, the more demanding clear-
and-convincing evidence standard might be appropriate. Id. at 15657. In a lengthy footnote citing cases reflecting "a divergence of
opinion among the Circuits," id. at 156, the Court quotes an Eighth
Circuit case characterizing the Supreme Court's McMillan decision
as approving the preponderance standard only "'for garden variety
sentencing determinations,'" id. at 156 n.2 (quoting United States
v. Townley, 929 F.2d 365, 369 (8th Cir. 1991)).
In other words,
See, e.g.,
Claire McKusker Murray, Hard Cases Make Good Law: The Intellectual
History of Prior Acquittal Sentencing, 84 St. John's L. Rev. 1415,
1468 (2010) ("Under Watts, prior acquittal sentencing is permitted
but not mandated, and a hard floor of reliability is established in
the form of the requirement that prior acquitted conduct be proved
to a preponderance of the evidence.").
B. First Circuit Law
The
preponderance-of-the-evidence
baseline
for
-27-
well
established,
we
have
not
always
used
the
words
See, e.g.,
-28-
counsel
"did
not
directly
challenge
the
prosecutor's
(i.e.,
not
the
merits),
-29-
and
rejecting
defendant's
against
him
"speak
directly
to
the
character
of
the
666
courts
F.3d
relying
at
on
815
mere
("We
have
arrests
as
cautioned
See
against
indicative
of
policy
statement
that
"highlight[s]
the
important
arrests
wrongdoing").
that
may
or
may
not
have
been
the
result
of
At the
charged
in
this
case.
When
additional
years
of
-31-
described
above,
the
panel
in
Flores-Machicote
noted
the
In Zapete-Garcia, the
85, 91-92 (1st Cir. 2013) (indicating that the defendant's PSR
contained detail on the events giving rise to the dismissed charges
and noting that the defendant did not object to "any aspect" of the
discussion); Lozada-Aponte, 689 F.3d at 792 (referring to "Lozada's
frequent run-ins with law enforcement in Florida, Illinois, and
Puerto Rico, some of which apparently involved firearms").
I do
not dispute that the district court may rely on a PSR's depiction
of
the
circumstances
sufficiently
reliable
that
led
evidence
to
the
dismissed
of
the
conduct
to
charges
meet
as
the
-32-
with
notations
stating
that
"Court
documents
were
requested but have not been received." The PSR states that some of
the charges were dismissed for lack of probable cause, while others
are simply described as "dismissed."
This requirement
without
reliance
on
-33-
the
dismissed
and
acquitted
charges.
-34-