United States v. Alvarez-Nunez, 828 F.3d 52

Background

Alvarez-Núñez was arrested after discarding a modified, loaded handgun with extended magazine and fully-automatic capability; search also revealed large ammunition quantity and six Percocet tablets (no prescription); he admitted regular marijuana use and ~2 years of Percocet addiction.
Pleaded guilty to possession of a firearm/ammunition by an unlawful user of a controlled substance (18 U.S.C. §922(g)(3)) and possession of a machinegun (18 U.S.C. §922(o)).
The PSI detailed Alvarez-Núñez’s role in a local musical duo, “Pacho y Cirilo,” asserting their songs and videos “promote violence, drugs and the use of weapons”; the PSI included translated lyrics and video transcriptions.
Defendant objected that using his musical performances at sentencing violated his First Amendment rights; the government introduced additional music-video excerpts and the district court ruled the materials were admissible and relevant.
The district court adopted the Guidelines calculations (GSR 24–30 months) but imposed a 96‑month sentence (large upward variance), citing the lyrics/videos as evidence of the defendant’s violent inclinations and need for deterrence.
The First Circuit vacated and remanded, holding the court impermissibly relied on protected artistic expression without extrinsic evidence tying that expression to sentencing factors, making the upward variance substantively unreasonable.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether district court could consider defendant’s song lyrics/videos at sentencing without violating First Amendment	Lyrics/videos show defendant’s promotion of violence/drugs/weapons and thus bear on offense circumstances, motives, and need for deterrence	Consideration of artistic performances unconnected to crime infringes First Amendment; lyrics do not prove defendant’s intent or past violent conduct	Court: Consideration allowed only if expression is relevant; here no extrinsic evidence tied the art to defendant’s conduct or mens rea, so reliance was improper
Whether the sentence (96 months) was substantively reasonable given Guidelines range (24–30 months)	Upward variance justified by demonstrated violent inclination and community impact as shown by lyrics/videos	Variance unsupported because the primary rationale rested on protected speech not shown to reflect defendant’s real conduct or character	Court: Variance unsupported and implausible; sentence substantively unreasonable; vacated and remanded
Whether defendant preserved his First Amendment objection for appeal	Government: More rigorous review claimed since defendant didn’t challenge substantive reasonableness below	Defendant objected repeatedly to use of his performances at sentencing	Court: Objections preserved the claim; standard-of-review argument rejected
Whether artistic expression can ever be used at sentencing	Government: Protected conduct can be relevant to remorse, recidivism, deterrence, rebuttals	Defendant: Protected expression irrelevant absent extrinsic corroboration linking it to crime or character	Court: Protected expression may be considered if demonstrably relevant via extrinsic evidence; absent that, use infringes First Amendment

Key Cases Cited

United States v. Clogston, 662 F.3d 588 (1st Cir. 2011) (appellate review of sentence has procedural and substantive dimensions)
Gall v. United States, 552 U.S. 38 (2007) (abuse-of-discretion review; larger variances require more compelling justification)
United States v. Narváez-Soto, 773 F.3d 282 (1st Cir. 2014) (sentence review standards)
Payne v. Tennessee, 501 U.S. 808 (1991) (broad scope of information admissible at sentencing)
United States v. Tucker, 404 U.S. 443 (1972) (sentencing inquiry broad in scope)
Dawson v. Delaware, 503 U.S. 159 (1992) (First Amendment does not bar consideration of beliefs/associations at sentencing but relevance must be shown)
Wisconsin v. Mitchell, 508 U.S. 476 (1993) (a defendant’s abstract beliefs may not be considered absent relevance)
United States v. Stewart, 686 F.3d 156 (2d Cir. 2012) (protected conduct may bear on remorse or other factors when linked to defendant)
United States v. Kane, 452 F.3d 140 (2d Cir. 2006) (expressive conduct admissible when not merely satire and tied to defendant’s conduct)
United States v. Simkanin, 420 F.3d 397 (5th Cir. 2005) (advocacy of lawless behavior may inform recidivism/deterrence analysis)
United States v. DeChristopher, 695 F.3d 1082 (10th Cir. 2012) (protected statements can inform deterrence analysis when relevant)
United States v. Serrapio, 754 F.3d 1312 (11th Cir. 2014) (statements to media admissible when linked to sentencing issues)
United States v. Ofray-Campos, 534 F.3d 1 (1st Cir. 2008) (sentence lacking adequate record support cannot stand)