United States v. Millan-Isaac
749 F.3d 57
| 1st Cir. | 2014Background
- In Nov. 2011 Millán and Cabezudo committed a Burger King robbery; Millán brandished an unloaded gun and took $114; Cabezudo drove the getaway car. Both pleaded guilty to Hobbs Act robbery (aiding and abetting) and a §924(c) firearm offense.
- Plea agreements gave identical Guidelines ranges for the robbery count (24–30 months) and recommended low-end sentences; Millán faced an 84‑month §924(c) mandatory minimum (for brandishing) while Cabezudo faced a 60‑month minimum. Government recommendations: 108 months for Millán, 84 months for Cabezudo.
- At back-to-back sentencing the district court first sentenced Millán to 180 months (later reduced to 120), then sentenced Cabezudo to 114 months; during Cabezudo’s hearing the court read untranslated Spanish text messages that had been provided by Probation.
- Cabezudo argued on appeal the district court violated the Jones Act by considering untranslated Spanish texts and that his sentence was procedurally unreasonable for failing to calculate/apply the Guidelines and inadequately explaining a variance.
- Millán argued on appeal the court relied on new, material, extra-record information (victim-impact proffer and facts developed at Cabezudo’s sentencing) without notice or opportunity to rebut, and then adjusted his sentence based on that extra-record information.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the court violated the Jones Act by considering untranslated Spanish text messages at sentencing | Cabezudo: untranslated texts were considered and could be outcome-determinative; reversal required | Government: defense counsel invited consideration by raising texts; any error was harmless because texts were cumulative | Court: Jones Act violation occurred but harmless here — texts were cumulative of PSR and defense counsel’s English summary, so no reversal on this ground |
| Whether the district court procedurally erred by failing to calculate Guidelines and adequately explain its variance for Cabezudo | Cabezudo: court failed to calculate applicable GSR for the §924(c) count and provided inadequate written reasons | Government: court implicitly knew Guidelines and intended a variance; explanation sufficed | Court: plain procedural error — court failed to calculate applicable GSR for Count Two and the written statement of reasons was inadequate; remand for resentencing required |
| Whether Millán was sentenced based on new, material information without notice or opportunity to rebut | Millán: court relied on government victim-impact proffer and facts revealed at co-defendant’s sentencing (which Millán had not seen) and adjusted his sentence accordingly; violated right to notice and opportunity to respond | Government: information benefited Millán (sentence reduced) and thus no plain‑error reversal | Court: plain error affected substantial rights — extra-record, material information influenced sentencing and Millán lacked notice/opportunity to rebut; vacated and remanded for resentencing |
| Whether the adjustments to Millán’s sentence based on Cabezudo’s hearing were permissible without prior notice | Millán: no, he lacked constructive notice and could not meaningfully respond | Government: hearsay/extra-record facts were not prejudicial | Court: not permissible without notice and opportunity to be heard; resentencing ordered but court may consider same information on remand if proper notice and opportunity are provided |
Key Cases Cited
- United States v. Rivera-Rosario, 300 F.3d 1 (1st Cir.) (federal proceedings in D.P.R. must be conducted in English; untranslated evidence cannot be considered)
- Puerto Ricans for P.R. Party v. Dalmau, 544 F.3d 58 (1st Cir.) (Jones Act violations reversible where untranslated evidence could affect outcome)
- Gall v. United States, 552 U.S. 38 (2007) (sentencing review; district courts must calculate Guidelines range and consider §3553(a) factors)
- Olano v. United States, 507 U.S. 725 (1993) (plain‑error review framework)
- United States v. Tavares, 705 F.3d 4 (1st Cir.) (failure to calculate Guidelines usually requires resentencing; harmlessness analysis)
- Berzon v. United States, 941 F.2d 8 (1st Cir.) (defendant must have notice of facts relied on at co-defendant’s sentencing; lack of notice can require remand)
- United States v. Curran, 926 F.2d 59 (1st Cir.) (reversed where sentencing judge relied on victim-impact material not disclosed in PSR or to defendant prior to sentencing)