UNITED STATES OF AMERICA, Appellee, v. SANTOS CASTILLO-TORRES, Defendant, Appellant.
No. 21-1243
United States Court of Appeals For the First Circuit
August 11, 2021
Hon. Aida M. Delgado-Colon, U.S.
APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF PUERTO RICO
Alejandra Bird Lopez, Research & Writing Specialist, with whom Eric Alexander Vos, Federal Public Defender, and Franco L. Perez-Redondo, Assistant Federal Public Defender, Supervisor, Appeals Division, were on brief, for appellаnt.
Gregory Bennett Conner, Assistant United States Attorney, with whom W. Stephen Muldrow, United States Attorney, Mariana E. Bauza-Almonte, Assistant United States Attorney, Chief, Appellate Division, and Thomas F. Klumper, Assistant United States Attorney, Senior Appellate Counsel, were on brief, for appellee.
* Of the District of Massachusetts, sitting by designation.
August 11, 2021
KAYATTA, Circuit Judge. Santos Castillo-Torres pled guilty to unlawful reentry in violation of
I.
At sentencing, Castillo‘s prior Puerto Rico criminal conviction appropriately became a subject of the district court‘s focus. As originally presented, the Presentence Report (PSR) stated that “on September 9, 2020 at approximately 3:04pm,” Castillo “illegally and with criminal intent, brandished and used a knife (silver in color, with a brown end) against Francisco Sanchez.” The PSR further stated that Castillo “used a knife and made a cut in the victim‘s left arm,” sending Sanchez to the hospital, and threatened that he was “going to kill [Sanchez].”
Castillo objected to any contention that he used thе knife to cut or threaten Sanchez, arguing:
Mr. Castillo categorically denies the accuracy of this description. The paragraph describes conduct for which Mr. Castillo was not convicted and with respect to which the Puerto Rico court did not make findings. A criminal charge alоne does not prove criminal guilt of the charged conduct.
He asserted that he had pled guilty in Puerto Rico court only to felony possession of a bladed weapon, and pointed out that the misdemeanor assault and threat charges had been dropped.
Acknowledging the objection, Probation amended the PSR to make clear that the “circumstances depicted in these paragraphs were described in the criminal complaints pertaining to said cases. However, these depictions do not imply the Probation Officer‘s position regаrding the defendant‘s behavior at the time.”
The district court nevertheless relied upon the charges in the criminal complaint to find that Castillo actually used the weapon to cut Sanchez, stating that “based on [the] relevant circumstances and the description of the offense, therе were threats; there was the use of a weapon; there was a cut.” In part for this reason, the district court imposed a sentence of eight months’ imprisonment, at the low end of Castillo‘s Guidelines sentencing range but above what the parties were requesting.
Factual findings made at sentеncing must be supported by a preponderance of the evidence. See United States v. Morgan, 384 F.3d 1, 5 (1st Cir. 2004). Whether they were so supported is a question we review for clear error. See United States v. Luciano, 414 F.3d 174, 180 (1st Cir. 2005). We have made clear that findings based solely on unreliable evidence cannot be established by a prеponderance and are therefore clearly erroneous. See United States v. Colon-Maldonado, 953 F.3d 1, 9-10 (1st Cir. 2020). Determinations of reliability are reviewed for abuse of discretion. See Luciano, 414 F.3d at 180.
We have previously warned district courts not to base sentencing determinations upon mere charges unsupported by any admission or some other evidence, “even when the defendant offers no rebuttal evidence.” Colon-Maldonado, 953 F.3d at 9 (explaining that a sentencing judge may not “rely[] on mere charges to ‘infer unlawful behavior unless there is proof by a preponderance of the evidence of the conduct initiating [thоse] arrests and charges‘” (quoting United States v. Rondon-Garcia, 886 F.3d 14, 25-26 (1st Cir. 2018))); United States v. Diaz-Lugo, 963 F.3d 145, 153 (1st Cir. 2020) (stating that a sentencing court may not “rely on an arrest record as evidence of a defendant‘s conduct in the absence of some reliable indication that the underlying conduct actually occurred“); United States v. Marrero-Perez, 914 F.3d 20, 22 (1st Cir. 2019) (“[N]o weight should be given in sentencing to arrests not buttressed by convictions or independent proof of conduct.“).
It is true that each of those cases involved either an upward departure or an upward variance. Some also implicated a Guidelines provision that prohibits courts from granting upward departures on the bаsis of arrest records. See, e.g., Marrero-Perez, 914 F.3d at 22, 24 (citing
This case involves a criminal complaint, rather than a mere record of arrest. But the complaint, by itself, also lacks sufficient indicia of reliability to support a finding that the defendant more likely than not committed the charged conduct. See Davila-Bonilla, 968 F.3d at 9-10; cf. United States v. Juwa, 508 F.3d 694, 701 (2d Cir. 2007). As we explained in Colon-Maldonado, a Puerto
Of course, statements made by a probation officer in a PSR following his or her investigation are sometimes deemed reliable enough by themselves to support a factual finding by the sentencing court absent any evidence to the contrary. See United States v. Arce-Calderon, 954 F.3d 379, 382 (1st Cir. 2020); United States v. Cyr, 337 F.3d 96, 100 (1st Cir. 2003); United States v. Grant, 114 F.3d 323, 328 (1st Cir. 1997). Here, though, in agreeing to amend the PSR based on Castillo‘s objection, the probation officer made clear that in reporting this criminal charge, the probation officer was not taking any “position regarding the defendant‘s behavior at the time.” Thus, we are not presented here with a fact asserted by a probation officer, followed by silence from the defendant. Rather, we have a careful probаtion officer passing along allegations made by someone else in a criminal complaint, without vouching for them and with the defendant challenging their accuracy and provenance.
The government insists that the district court relied only on a finding that Castillo‘s Commonwealth convictiоn was “violent in nature.” According to the government, such a finding was supportable because Castillo necessarily pled guilty to the violent offense of “using” or “brandishing” a knife, not merely “possessing” or “displaying” it. The government points to an unofficial translation of the Commonwealth statute underlying Castillo‘s conviction,
We need not decide whether and to what extent we can rely on any of these submissions. Regardless of whether Castillo was convicted of using a weapon, nothing in the record provides competent proof that he did what the district court cоncluded he did -- cut and threatened to kill his antagonist.1
The government also suggests that the district court could have found Castillo was arrested and convicted for violent conduct based on his admission that he had an “antagonistic interaction” with Sanchez preceding his arrest. We doubt that Castillо‘s words can be stretched so far. But we need not resolve the question because the district court did not rely on a mere finding that Castillo had been violent in some unspecified manner. Rather, as we have
We cannot say that the district court‘s error was harmless, i.e., that it “did not affect the . . . selection of the sentence imposed.” United States v. Tavares, 705 F.3d 4, 26-27 (1st Cir. 2013) (quoting Williams v. United States, 503 U.S. 193, 203 (1992)). To be sure, there was ample other evidence relevant to sentencing. Castillo offered much mitigating evidence in support of his request for a time-served sentence, while the government pointed to examples countering that mitigation to justify a sentence of six months’ imprisonment. Certainly the district court remained free to reject both requests in favor of a higher sentence, as long as it based its ultimate sentencing decision on reliable information. However, the district court‘s own statements made clear that it placed substantial weight on the allegations underlying the dismissed misdemeanor assault and threat charges against Castillo. And that makes sense -- if it could be shown that Castillo struck another with a knife without justification, one would expect such a fact to be given some weight. But, as explained above, that fact was not proven at sentencing by a preponderance of the evidence.2
All that remains is Castillo‘s request to be resentenced by a different judge. Requests for a new judge on remand are granted “only in very unusual cases,” United States v. Vazquez-Mendez, 915 F.3d 85, 88 (1st Cir. 2019), such as where “there is reason to think that a judge will base sentencing determinations on unreliable or inaccurate information” or where “the original judge displayed a ‘deep-seated favoritism or antagonism that would make fair judgment impossible,‘” United States v. Alvira-Sanchez, 804 F.3d 488, 496 (1st Cir. 2015) (quoting Yosd v. Mukasey, 514 F.3d 74, 78 (1st Cir. 2008)); see also United States v. Zavala-Marti, 715 F.3d 44, 56-57 (1st Cir. 2013) (remanding for resentencing by a different judge because the defendant‘s original life sentence exceeded the statutory maximum and was based in part on ex parte information). This is not such an unusual case. While the sentencing judgе did err in relying on bare allegations against Castillo, she correctly calculated the Guidelines sentencing range, and she otherwise diligently and comprehensively analyzed the section 3553(a) factors before imposing a sentence. On this record, we see no reason why the same judge could not entirely put to one side the unsupported allegations just as would any other judge to whom the case might be reassigned (and who would also be aware of the allegations from reading this opinion).
III.
To summarize our holding: The district court exceeded the scope of its disсretion by relying on a bare allegation in the Puerto Rico criminal complaint to justify a sentence longer than otherwise would have been imposed, given that the allegation was both challenged by the defendant and unsupported by any other indicia of reliability. We therefore vacate the sentence and remand for resentencing.3