United States v. Cirilo-Munoz
582 F.3d 54
1st Cir.
2009
Check Treatment
Docket

*1 diversity jurisdiction does means a citizen of plaintiff is any

exist Díaz-Rod any defendant. state as same Pep Boys Corp., 410 ríguez v. Curtiss, (1st Cir.2005); Strawbridge Cranch) (3 L.Ed. 7 U.S. (1806), grounds, Louis on other overruled ville, R.R. & Charleston Co. Cincinnati (2 How.) Letson, 497, 554-55, 11 (1844). According to Second L.Ed. 353 the plain Complaint, several Amended citizens of the defendants are tiffs and 1332(e) (de Rico. See 28 U.S.C. Puerto diversity jurisdiction fining in the “States” to include the Commonwealth statute Rico). Therefore, ju diversity Puerto risdiction exists.

Affirmed. STATES, Appellee, CIRILO-MUÑOZ, Anglada-López ap- Rafael brief

Ernesto Defendant, pellant. Appellant. Pérez-Sosa, At- Nelson Assistant U.S. Meconiates, torney, M. Julia Assistant Attorney, and Rosa Emilia Rodri- Attorney, on guez-Velez, United States appellee. brief for July

Submitted 4, 2009. TORRUELLA, STAHL and Before LIPEZ, Judges.

PER CURIAM. court,

Upon remand from this see Unit- ed

(1st Cir.2007), Cirilo-Muñoz was Ernesto to the resentenced minimum sentence of months. Cirilo- again appeals. Muñoz once *2 asks, fashion, conclusory ing).

He that We are now called upon to affirm statutory mandatory the imposition we declare mini the of a harsh mini- him, sentence, applied mum unconstitutional as mum compounds the supplies supporting argument. by but he caused Cirilo-Muñoz’s convic- constitutionally-based He did not tion. Because have taken an oath to argument uphold below so the claim is waived. the irrespective my personal law views, I am left without principled choice The argument that Cirilo-Muñoz concur, and, other than to below he did raise and which reiterates in register the process, my most vehement fleeting somewhat fashion here is unavail disagreement warped with the outcome ing. uniformly rejected Courts have 3553(a)’s greater claim that “no previously expressed As have else necessary” language authorizes a district where, there are aspects of this court to mini sentence below long case’s Samas, troubled that call mum. See United v. (2d question the fairness of our criminal Cir.2009), 110-111 justice system. (U.S. 22, 2009) (No. United States v. Ciri filed, Jun. 08- (1st lo-Muñoz, Cir.2007) (de 504 F.3d 11058); Huskey, v. United States 502 F.3d Torruella, J.); (10th cision Cir.2007); United States States, (1st Franklin, 533-37 499 F.3d Cir. 2007); Roberson, concurring). United States among Chief these (7th Cir.2007). defects is a mistake made years own court eleven ago being There law neither error of nor when it found the trial evidence at suffi imposition abuse of discretion of the cient to establish that Cirilo-Muñoz had statutory mandatory sentence, foreknowledge that his accomplice would judgment of the district court entered kill Mangual-Cor the undercover officer. on June 2008 is affirmed. chado, 139 F.3d at 44-49. The error of cogently this decision TORRUELLA, thoroughly expressed by Judge McAuliffe in his dis (concurring judgment). sent. See id. at 49-56. outcome, is a notorious example of oppressive injustice culminat- I on original panel Were in Mangu ing al-Corchado, in an outrageous adjudication. It is a I would have voted vacate justice. stain on the of American robes Cirilo-Muñoz’s conviction. Were the issue Appellant Cirilo-Muñoz was convicted of brought again, before us I would vote to aiding abetting decision; the murder of an on- that revisit that finding duty police He officer. was convicted even “obviously evidence was sufficient so though his co-defendant wrong” as to rise to the level of “manifest himself, initially injustice” murderer tried vitiating the law of the case doc pin States, Cirilo-Muñoz for the murder and was trine. See Ellis United 313 F.3d witness, (1st the government’s Cir.2002); star “testified 647-48 see also unequivocally had no v. Cirilo[-Muñoz] 323 F.3d Cir. 2003) (en banc) C.J.) (“Law plan (Boudin, advance about his to mur- ... der and did not assist him in straight jacket commit- case is not a but can be ting in any way.” the murder avoided—at the discretion the court that Mangual-Corchado, ruling made the invoked several dif —on (1st Cir.1998) (McAuliffe, J., bases.”); 14 (distinguishing dissent- ferent id. at cf. confused may witnesses have been con main post limiting restrictions precedent or, worse, again, liars. Now and [are] only “intra-federal however, in which some- a case arrives involved).1 But the suffi are proceedings” *3 wrong, has and thing transparently gone supporting Cirilo- ciency of the evidence a Every must act. time we reverse we pre is the issue conviction Muñoz’s of evi- on account insufficient conviction way, I see no appeal, in this and sented dence, avert more.... we case, to posture of this present under the conviction, to unless he were his reopen Ortiz, de 883 States Martínez filing (Easterbrook, a new collateral develop grounds (7th Cir.1989) for 515, 524 523 challenge. Thompson, rehearing judg- See Calderón concurring); granted; J. (7th Cir.1990); vacated, 140 L.Ed.2d 728 118 S.Ct. ment 897 F.2d 220 U.S. — Cir.1990) Davis, (1998); re also In 907 F.2d 629 superseded (en banc). -, L.Ed.2d 2009 174 130 S.Ct. (2009) pe (appellant’s original 2486475

WL presented we are What remanded corpus of habeas tition for writ injustice. The separate a raises fresh alleged new district court to consider twenty-year mandatory minimum sentence innocence, years after eighteen evidence of yet is another on Cirilo-Muñoz imposed officer).2 police for murder of a conviction imprecise overly harsh example of the sentencing of our restrictive application again registering my concern with his In Poland, 562 See United States regime. (and conviction, can not im- invoke (1st Cir.2009) (Torruella, on) of Easterbrook: prove words min- concurring) (criticizing mandatory judges as in criminal Nothing case, we do stating the real life imum that “[i]n assuring important cases is more sentencing, regime a of such scenario go free.... False ac- away that the innocent makes little sense because it takes caught by of must be cusations crime much of the discretion from it be, jury; on the front prosecutor petit we cannot should those lines justice system”). im- regime criminal just reverse a conviction because the dissent, questioned whether procedural a Justice Scalia 1. For full review of tortuous In Conley saga, a situation not allegedly any of "the new evidence” was in totally irrelevant to the see Unit new, "already fact as it had been considered (1st Cir.1999) Conley, ed States v. (and rejected) multiple times.” Id. at-- denied, I"), ("Conley -, *2-4 2009 WL S.Ct. (2000); 146 L.Ed.2d S.Ct. (Scalia, J., dissenting). (D.Mass. Conley, F.Supp.2d 2000) II”); Although presents no evi- Cirilo-Muñoz new ("Conley Conley, here, III”); ("Conley 249 F.3d 38 dence of actual innocence fact that F.Supp.2d v. United Supreme willing a con- Court is to revisit (D.Mass.2001) IV"). ("Conley even older than Cirilo-Muñoz’s (or hope Supreme some that the Court vides Davis, although distinguish- In note that re court) even our would revisit Cirilo-Muñoz’s respects, able in material does offer Cirilo- procure conviction should he new evidence hope glimmer achieving Muñoz a relief innocence. U.S.C. his actual improper from his conviction. Davis involves (outline 2244(b)(3)(A) grounds filing for sec- conviction, eighteen-year-old an state or successive habeas with court ond petitioner subsequent petition appeals). In if Justice Scalia’s claim presence for collateral review mere claimed true, open just how then Davis leaves officer, during sup- a the murder of permit evidence has to be "new” the ported by new evidence in the nature of sever- exculpatory Cirilo-Muñoz's conviction. al affidavits not at trial. court him mandatory oppressive sentence on tect from the poses power of years longer three government bureaucracy. The re- imposed seventeen-year-old than that sult is that a adolescent actually orchestrated and com- one has been to spending condemned his entire Cirilo-Muñoz, 504 mitted the murder. adult life in a prison. incarcerated federal Cf. J.) (remanding at 126 wrongful To this outcome have contributed resentencing, part, because “[e]ven all three government, branches of with legal system, report- the cases that are Congress making its contribution on this support disparity ed do not extant appeal through its draconian *4 this case between a minor mínimums. abettor, Lugo[-Sánchez], aider and prior Our passed decisions the laws murderer”).

principal and by Congress result, command this which I The district court’s comments at sen- obey. opinion must write this so that tencing encapsulate absurdity of this forgotten is not in our other- case: summary wise disposal of Cirilo-Muñoz’s

The Court has reviewed the record in appeal. His case calls out for clemency defendant, this case and finds that this relief, and should serve remind us case, especially concerning system both of the flaws in our adjudi- trial, that was evidence had cating guilt dangers and the mitigating role. Defendant had [sic] mínimums. evidence, according to the and for lack— I thus concur in the judgment. sentencing purposes, prior had lack of Lugo[-Sánchez]’s of Mr. plans and intentions to kill the undercov-

er officer. In the defendant Lugo[-Sán- turned down two of Mr. injure invitation’s to the victim in ehez]’s Moreover, defendant was no- WOJCIECHOWICZ, Individually Carol vicinity Lugo[- when Mr. Capacity and in Her as Executrix of Lastly, killed the victim. Mr. Sánehez] Wojciechow the Estate of Alexander Lugo[-Sánchez] testified that he did not Conjugal icz and on behalf of the know the defendant had followed him Partnership with Decedent Alexander and that he did not ask him to do so. al., Plaintiffs, Wojciechowicz; Ap et The findings district court made these pellants, standard, preponderance of the evidence which underscores that the evidence was insufficient to convict STATES, Defendant, Appellee. But, place. the first the district court was further straight-jacketed the mandate Congress imposing into twenty years imprisonment.

minimum of similarly straight-jacketed And we are Heard 2009. June affirming that sentence. A series of coincidences have laid bare a law,

system Cirilo-Muñoz’s particular circumstances has failed to