United States v. Pacheco, 2013 U.S. App. LEXIS 16713

Giseline Pacheco was arrested in Puerto Rico for attempting to import 672 grams of heroin and indicted on multiple drug and importation counts; she entered a straight guilty plea and faced sentencing.
Pacheco identified a recruiter; prosecutors explored superseding the recruiter’s indictment based on her cooperation but Pacheco ultimately refused to testify before a grand jury or at trial and entered a straight plea.
The government initially discussed filing a §5K1.1 motion but later declined; it filed an “informative” motion in the recruiter’s case prior to his sentencing.
Days before Pacheco’s sentencing the government filed a sealed notice refusing to file a §5K1.1 motion; Pacheco moved for a continuance and for production of the government’s supporting materials.
The district court denied the continuance, heard arguments, invited Pacheco to speak (allocution), sentenced her below the Guidelines to 36 months, then reduced the sentence sua sponte to 24 months.
Pacheco appealed arguing (1) denial of continuance, (2) court incorrectly believed it could not consider cooperation absent a §5K1.1 motion, and (3) she was not afforded the right to allocute.

Issue	Pacheco's Argument	Government/District Court Argument	Held
Denial of continuance of sentencing	Needed more time to investigate gov’t reversal on §5K1.1 and to develop mitigating evidence; denial caused prejudice	Continuance lacked probable utility because only government can move for §5K1.1; defendant had submitted a sentencing memorandum and opportunity to be heard	Affirmed denial: no abuse of discretion; defendant failed to show substantial prejudice
Whether court could consider cooperation absent §5K1.1 motion	Court was bound to sentence to prison absent gov’t §5K1.1 motion	Court had discretion under §3553(a) to consider cooperation and vary even without §5K1.1	Court correctly recognized its discretion; considered cooperation but reasonably imposed imprisonment
Right to allocute (personal opportunity to speak)	Court’s hurried, hostile exchange with defense counsel and defendant’s crying meant she was not meaningfully invited to speak	Court addressed defendant personally, asked multiple times if she had anything to say; defendant shook head — implies she declined	Affirmed: colloquy satisfied Rule 32(i)(4)(A); no de novo allocution error found
Remedy sought (vacate and remand)	Requested resentencing for alleged procedural and substantive errors	District court’s rulings were within discretion; sentence reduced sua sponte below Guidelines	Affirmed sentence; remand denied

United States v. Landrón-Class, 696 F.3d 62 (1st Cir. 2012) (courts may consider defendant cooperation under §3553(a) even absent a §5K1.1 motion)
United States v. Anonymous, 629 F.3d 68 (1st Cir. 2010) (a substantial-assistance departure requires a government motion)
Wade v. United States, 504 U.S. 181 (1992) (discussing government’s role in substantial-assistance departures)
Green v. United States, 365 U.S. 301 (1961) (defendant must be personally afforded opportunity to speak before sentencing)
United States v. Burgos-Andújar, 275 F.3d 23 (1st Cir. 2001) (Rule 32 allocution requirements and functional equivalency)
United States v. Alba Pagán, 33 F.3d 125 (1st Cir. 1994) (allocution may be satisfied by the functional equivalent showing defendant knew right to speak)
United States v. Riveras-Rodríguez, 617 F.3d 581 (1st Cir. 2010) (de novo review of allocution compliance under Rule 32)