United States v. Romero
896 F.3d 90
1st Cir.2018Background
- Romero, a Honduran national, was apprehended in Massachusetts and pled guilty to unlawful re-entry under 8 U.S.C. § 1326(a) and (b)(2).
- The PSR applied a 4-level enhancement under U.S.S.G. § 2L1.2(b)(2)(D) based on prior felony convictions, producing an offense level 19 and a Guidelines range of 46–57 months.
- Romero did not object to the PSR and affirmatively told the district court the Guidelines calculation was "correct." The court used that range as a starting point and sentenced Romero to 42 months (below the PSR range).
- On appeal Romero for the first time argued the § 2L1.2(b)(2)(D) enhancement was erroneous because Application Note 3 limits the enhancement to prior convictions that received criminal history points; the PSR's predicates had not received such points.
- Without the enhancement Romero’s offense level would be 15 and the Guidelines range 30–37 months, so the PSR error inflated the range by more than a year.
- The government conceded plain error; the court questioned whether Romero had waived the claim but ultimately vacated and remanded for resentencing, excusing any waiver in the interest of justice because the error was inadvertent, prejudicial, and resentencing would not unfairly prejudice the government.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the § 2L1.2(b)(2)(D) enhancement was properly applied | Romero: Enhancement improper because Note 3 limits subsection (b)(2) to convictions that received criminal history points | Government: Romero waived the challenge by affirmatively accepting the PSR and Guidelines as "correct" at sentencing | Court: Enhancement was a clear error affecting substantial rights; plain error warrants resentencing; any waiver excused in interest of justice |
| Whether Romero forfeited or waived appellate review by failing to object at sentencing | Romero: Did not intentionally relinquish right; parties missed PSR error | Government: Romero’s affirmative concession constituted waiver, barring appellate relief | Court: Doubtful waiver applies; regardless, excused waiver given prejudice and lack of government prejudice; remand required |
| Standard of review for unpreserved sentencing challenges | Romero: Plain-error review | Government: Plain-error or waiver as applicable | Court: Applies plain-error standard; Supreme Court precedent supports remand when PSR errors inflate Guidelines |
| Whether resentencing would unfairly prejudice the government or reward strategic sandbagging | Romero: No prejudice; error was mutual oversight | Government: Argued waiver should bar relief to avoid reopening sentence | Court: Government conceded no unfair prejudice; resentencing before same judge removes sandbagging concern; remand ordered |
Key Cases Cited
- Rosales-Mireles v. United States, 138 S. Ct. 1897 (2018) (remanding ordinary cases where an unnoticed PSR error inflated Guidelines)
- Rondón-García v. United States, 886 F.3d 14 (1st Cir. 2018) (plain-error review of unpreserved sentencing challenges)
- Duarte v. United States, 246 F.3d 56 (1st Cir. 2001) (elements of plain-error standard)
- Corbett v. United States, 870 F.3d 21 (1st Cir. 2017) (distinguishing forfeiture and waiver; waived issues generally not revived on appeal)
- Bauzó-Santiago v. United States, 867 F.3d 13 (1st Cir. 2017) (defining waiver as intentional relinquishment of a known right)
- Torres-Rosario v. United States, 658 F.3d 110 (1st Cir. 2011) (excusing waiver where reinstating it would produce an unjustly longer sentence and government not prejudiced)
- Molina-Martinez v. United States, 136 S. Ct. 1338 (2016) (recognizing district sentences can be based on incorrect Guidelines ranges and remanding where appropriate)