United States v. Acevedo-Lopez
873 F.3d 330
| 1st Cir. | 2017Background
- Acevedo pled guilty to conspiring to bribe and paying a bribe to a Puerto Rico judge, in violation of 18 U.S.C. §§ 371 and 666(a); district court sentenced him to 108 months (9 years).
- Under U.S.S.G. § 2C1.1(b)(2) the district court valued the benefit to the judge as an expected appellate judgeship, calculating an $123,200 benefit (eight‑level increase) based on projected salary differential over eight years.
- The PSR and court found the conspiracy involved five or more criminally responsible participants and applied a four‑level leadership/organizer enhancement under U.S.S.G. § 3B1.1(a).
- The district court considered evidence of two violent/threatening incidents (the Mesa Criolla restaurant incident and an altercation with Acevedo’s cousin Rafi) in support of an upward variance. Much of that evidence was hearsay or from prior hearings, but was summarized in the PSR and corroborated by messages, photos, video, and testimony.
- Acevedo raised multiple procedural challenges on appeal: valuation of the bribe, participant count for § 3B1.1(a), sentencing methodology, reliability and notice of evidence relied upon (including detention‑hearing materials and public‑corruption statistics), and whether the court actually imposed a prohibited departure rather than a variance.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Valuation under § 2C1.1(b)(2) | Govt: court may value the benefit to the official by reference to what the judge would obtain (appellate judgeship) | Acevedo: expectation of appointment was not reasonable; at most defendant promised assistance, so valuation should be lower | Court: no clear error — circumstantial evidence supported a reasonable expectation of appointment; eight‑level increase upheld |
| § 3B1.1(a) participant count | Govt: enhancement warranted because ≥5 criminally responsible participants (including Saúl) | Acevedo: only four participants were culpable; others (Saúl, Bebé, Miguel, Hernández) not participants | Court: upheld — Saúl’s actions (setting meetings, receiving benefits) were sufficient to deem him a participant, creating five participants |
| Procedural sentencing sequence | Govt: district court followed recommended guideline calculation and §3553(a) analysis | Acevedo: court reversed required sequence by stating maximum was warranted early | Court: methodology proper — court calculated guideline range, considered departures and §3553(a) factors, then imposed variance despite an earlier remark |
| Use and notice of evidence (detention hearing, statistics) | Govt: PSR and record provided notice; hearsay admissible at sentencing if reliable/corroborated | Acevedo: lacked timely notice to confront evidence; statistics used without prior disclosure | Held: district court did not clearly err in relying on detention‑hearing evidence summarized in the PSR; failure to disclose statistics was harmless error |
Key Cases Cited
- United States v. Houston, 857 F.3d 427 (1st Cir. 2017) (standards of review for guideline interpretation and factual findings)
- United States v. George, 841 F.3d 55 (1st Cir. 2016) (definition and proof of a § 3B1.1 participant)
- United States v. Saulter, 60 F.3d 270 (7th Cir. 1995) (small‑role actor who aided locating co‑conspirator can be a participant)
- United States v. Zichettello, 208 F.3d 72 (2d Cir. 2000) (benefits received by third parties can render them participants when they know of the quid pro quo)
- United States v. Dávila‑González, 595 F.3d 42 (1st Cir. 2010) (preferred sequencing for sentencing: calculate guidelines, consider departures, then § 3553(a) factors)
- United States v. Rodríguez, 336 F.3d 67 (1st Cir. 2003) (sentencing court may accept hearsay if it has indicia of trustworthiness)
- United States v. Millán‑Isaac, 749 F.3d 57 (1st Cir. 2014) (notice requirement when court relies on new information at sentencing)
- United States v. Curran, 926 F.2d 59 (1st Cir. 1991) (use of documents outside the PSR requires disclosure or limitation of factual reliance)