United States v. Acevedo
2016 U.S. App. LEXIS 10033
1st Cir.2016Background
- Edgar Acevedo pleaded guilty to conspiracy to commit kidnapping for ransom under 18 U.S.C. § 1201(c); indictment alleged he drove the van used to abduct the victim and later was present where the victim was held.
- The PSR (relying on agents and cooperating co-conspirators) described Acevedo driving the van, being at the safe house at times, and handling some marked ransom bills; cell-phone contacts between Acevedo and co-conspirators were frequent during the relevant period.
- The PSR calculated an offense level 37 (base 32, +6 ransom-demand enhancement, +2 firearm, -3 acceptance), yielding a Guidelines range of 210–262 months; Acevedo sought a minor-role reduction and disputed some factual assertions and enhancements.
- Acevedo objected to the PSR but made no evidentiary proffer or request for an evidentiary hearing; the Government and Probation supported the PSR and sought 210 months.
- The district court overruled Acevedo’s objections (ruling ransom enhancement not double counting; firearm reasonably foreseeable; driving the van not a minor role), adopted the PSR range but imposed a below-Guidelines sentence of 192 months.
- Acevedo appealed, raising Rule 32(i)(3)(B) hearing error, Guidelines-calculation errors (ransom enhancement, firearm foreseeability, minor-role reduction), and sentencing disparity under 18 U.S.C. § 3553(a)(6).
Issues
| Issue | Plaintiff's Argument (U.S.) | Defendant's Argument (Acevedo) | Held |
|---|---|---|---|
| Rule 32(i)(3)(B) / evidentiary hearing | District court may rely on PSR and record; no hearing required absent proffer | Rule 32 required the court to resolve disputed PSR facts via hearing before sentencing | No error: Acevedo made no evidentiary proffer or hearing request; court permissibly relied on PSR and other record materials |
| Ransom-demand enhancement / double counting | Enhancement is proper because ransom is a distinct sentencing fact under Guidelines §2A4.1(b)(1) | Enhancement impermissibly double counts an element already charged in the conspiracy conviction | Affirmed: ransom demand is a distinct fact warranting enhancement, not double counting |
| Ransom & firearm foreseeability for conspiracy attribution | Co-conspirators’ acts (ransom demand, firearm use) are chargeable if reasonably foreseeable | Acevedo contends he neither knew of nor could reasonably foresee the ransom demand or Moreno’s gun | Affirmed: facts (nature of plot, daylight street abduction, immediate gun use, phone contacts, plea) made ransom and firearm use reasonably foreseeable |
| Minor-role reduction (§3B1.2) | N/A | Acevedo argued he was a minor participant and sought a two-level reduction | Denied: driving the abduction van and transporting abductors/victim showed active, central participation not “minor” |
| Sentencing disparity (§3553(a)(6)) | N/A | Acevedo argued his sentence was disparate compared to co-defendants | Denied: disparity review targets national disparities; Acevedo failed to show co-defendants were identically situated and ignored that many co-defendants cooperated while he did not |
Key Cases Cited
- United States v. Prochner, 417 F.3d 54 (1st Cir.) (district court may rely on PSR when defendant’s objections are unsupported)
- United States v. Cyr, 337 F.3d 96 (1st Cir.) (same principle regarding PSR reliance)
- United States v. González-Vélez, 587 F.3d 494 (1st Cir.) (de novo review of Rule 32 compliance)
- United States v. Jimenez-Martinez, 83 F.3d 488 (1st Cir.) (review standard for denial of evidentiary hearing)
- United States v. Fiume, 708 F.3d 59 (1st Cir.) (permitting cumulative consideration of facts for sentencing)
- United States v. Reyes-Rivera, 812 F.3d 79 (1st Cir.) (guidance on Guidelines interpretation and §3553(a) disparity analysis)
- United States v. Meléndez-Rivera, 782 F.3d 26 (1st Cir.) (standard for minor-role adjustment)
- United States v. Graciani, 61 F.3d 70 (1st Cir.) (deference to district court on role-in-offense findings)
- United States v. Marceau, 554 F.3d 24 (1st Cir.) (discussion of §3553(a)(6) focus on national disparities)
- United States v. Rivera-Gonzalez, 626 F.3d 639 (1st Cir.) (identically situated co-defendants may warrant concern over disparate sentences)