United States v. Berrios-Miranda, 919 F.3d 76

Background

In 2008 Berrios participated in the kidnapping and repeated abuse of victim Luis F. Bello-Javier; Berrios pleaded guilty to kidnapping for ransom.
At a codefendant's 2012 trial the victim testified that Berrios "mistreated [him] the most," and Berrios also testified and admitted to beating and threatening the victim.
At Berrios’s first sentencing the district court relied on trial testimony (which Berrios had not yet seen) to impose a harsher sentence; this court vacated and remanded because the relied-on testimony was new to Berrios and he lacked an opportunity to challenge it.
On remand the district court produced the relevant trial transcripts and the PSR to Berrios; at resentencing Berrios sought to compel the victim’s presence so he could cross-examine him about the victim’s identification and inconsistencies with the PSR.
The district court denied the request, concluding cross-examination would be an unnecessary credibility attack and that Berrios had a meaningful opportunity to comment on the materials; the court resentenced Berrios within the Guidelines.
On appeal Berrios argued denial of the opportunity to cross-examine the victim violated his procedural due process rights and led to sentencing on inaccurate information; the First Circuit affirmed.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether defendant was entitled to confront or cross-examine the victim at resentencing	Berrios: denial violated procedural due process because victim’s testimony (e.g., that Berrios "mistreated [him] the most") was unreliable and newly significant, so cross-examination was needed	Government: no Sixth Amendment right to cross-examine at sentencing; Berrios had access to transcripts and PSR and a chance to comment, which satisfies due process	Court: No right to cross-examination at sentencing; due process satisfied because Berrios had notice, transcripts, PSR, and a meaningful opportunity to address the information
Whether the sentencing court relied on materially false or new information without giving notice	Berrios: inconsistencies between PSR and trial testimony and victim’s blindfolding meant facts were inaccurate or novel	Government: trial testimony was not new on remand and was corroborated by Berrios’s own trial statements	Court: The information was not new on remand; judge identified the relied-upon facts and Berrios had opportunity to challenge them, so no due process violation
Whether the victim’s uncross-examined trial testimony lacked sufficient indicia of reliability for sentencing use	Berrios: victim’s identification and varying details undermined reliability and required testing by cross-examination	Government: testimony was under oath and corroborated by Berrios’s admissions and judge had observed testimony at codefendant’s trial	Court: Trial testimony had corroboration and sufficient indicia of reliability; sentencing court acted within discretion to consider it
Whether Berrios waived objections by accepting the court’s factual findings at resentencing	Berrios: contested he did not waive rights	Government: Berrios’s counsel acknowledged acceptance of court’s findings, suggesting waiver	Court: Assumed no waiver but resolved appeal on merits in favor of government; no reversible error found

Key Cases Cited

Bramley v. United States, 847 F.3d 1 (1st Cir. 2017) (no Sixth Amendment right to cross-examination at sentencing; due process limits apply)
Rodriguez v. United States, 336 F.3d 67 (1st Cir. 2003) (same principle regarding confrontation at sentencing)
Cintrón–Echautegui v. United States, 604 F.3d 1 (1st Cir. 2010) (sentencing judge may consider evidence with sufficient indicia of reliability)
Zapata v. United States, 589 F.3d 475 (1st Cir. 2009) (reliability standard for information considered at sentencing)
Doe v. United States, 741 F.3d 217 (1st Cir. 2013) (sentencing courts may rely on statements not subjected to cross-examination if sufficiently reliable)
Acevedo-López v. United States, 873 F.3d 330 (1st Cir. 2017) (corroboration can support reliability of sentencing information)
Zuleta-Alvarez v. United States, 922 F.2d 33 (1st Cir. 1990) (court may consider trial testimony at sentencing absent cross-examination when reliable)
Kenney v. United States, 756 F.3d 36 (1st Cir. 2014) (information hardly new to defendant may be considered at sentencing)
Rivera-Rodríguez v. United States, 489 F.3d 48 (1st Cir. 2007) (Rule 32 and notice requirements; information disclosed in indictment/PSR is not "new")
Berzon v. United States, 941 F.2d 8 (1st Cir. 1991) (defendant must have meaningful opportunity to comment on sentencing information)
Curran v. United States, 926 F.2d 59 (1st Cir. 1991) (sentence must not be based on false or materially incorrect information)