United States v. Cortes-Medina

LIPEZ, LYNCH, Before SELYA Judges. Circuit SELYA, Judge. Circuit defendant-ap- sentencing appeal, In this insists that Héctor Cortés-Medina pellant procedur- sentence is both his 168-month substantively unreason- ally flawed and consideration, we af- After careful able. firm the sentence. its roots in an indict- appeal

This has grand jury returned a federal ment Puerto Rico. The sitting in the District of alleged that the defendant indictment drug-traffick- a as an “enforcer” for served participant ing ring charged him as to possess with intent conspiracy in a within controlled substances distribute location. 1,000 protected feet of 841(a)(1),846, §§ U.S.C. course, the defendant entered due (the agreement non-binding plea

into a Agreement) government. with the that, exchange for Agreement provided charge guilty plea conspiracy his allegation, a related forfeiture and to 121- recommend a government would however, term; provided, prison month history criminal cate- that the defendant’s (CHC) or lower. The district gory was IV accepted plea, probation and the investigation prepared presentence office (PSI object- side report Report). Neither anything contained in the PSI Re- ed things) recom- port, (among which other calculations guideline mended a series in a total offense level of culminating IV, guideline sentencing CHC Clark, whom Law Office of Heather with (GSR) months. range of 135 168 brief, appellant. Heather Clark was on for Besosa-Martinez, hearing, govern- disposition Assistant At the Francisco A. 121-month agreed Rosa ment recommended the Attorney, with whom United States sentence, though At- even that sentence was Rodríguez-Vélez, Emilia United States Pérez-Sosa, below the nadir of the GSR. The district torney, and Nelson Assistant Chief, coun- court heard statements from defense Attorney, Appellate United States himself, Division, brief, and the sel and the defendant appellee. were on for Overall, acknowledged parties’ joint sen- “[a]ppellate review of tencing recommendation. The court then federal criminal sentences is characterized by a frank engaged recognition in a dissection of the defendant’s of the substantial discretion vested in a history. court.” Flores-Machicote, United States v. To begin, court examined the four (1st Cir.2013). The “process is convictions on which the defendant’s CHC bifurcated: we first determine whether the premised. catalogued It then was several imposed sentence procedurally reason arrests that had terminated in ac either able and then determine whether it is sub quittals or in dismissals. These included stantively reasonable.” United States v. murder, first-degree two for two Cir.2011). Clogston, 662 F.3d evidence, charges relating destruction of Generally, both aspects of this review are drug and an assortment of and for abuse of discretion. See Gall v. United Noting firearm violations.1 that none of States, 38, 46, 552 U.S. 128 S.Ct. charges any these had resulted in punish (2007); L.Ed.2d States Mar ment, expressed the district court frustra tin, (1st Cir.2008). When- just tion. The court said: “This is what I assessing procedural the reasonableness of understand, things don’t how these are sentence, however, appellate review is added, happening.” cryptically, It then more nuanced: we afford de novo consid “lightning that doesn’t strike twice the eration to the sentencing interpre court’s place.” same application tation and of sentencing the guidelines assay the factfinding court’s The district court proceeded, without ob- Flores-Machicote, for clear error. See jection, ratify adopt guideline the F.3d at 20. calculations limned in the Report. PSI It stressed that the defendant was an enforc- These standards of review are al er in the drug-trafficking organization, objection tered when an is not preserved adding know that In “[w]e what means.” event, in the court below. that review end, the the court the sentenced defendant plain is for error. See United States v. of, to a term of immurement at apex the (1st Cir.2001). Duarte, within, but the GSR: 168 months. Plain appellant-friend error review is not (1) ly. It showings: “entails four that an timely appeal This Although ensued. (2) error occurred which was clear or obvi Agreement the a waiver-of-appeal contains (3) only ous and which not affected the provision, provision, by terms, its (4) rights, defendant’s substantial also but operative only if the court sentences the fairness, seriously impaired integrity, the defendant accordance with the Agree public reputation judicial or proceed of “terms, ment’s conditions and recommen ings.” Id. dations.” Because the sentence imposed by the district court exceeded'the sentence Against backdrop, this we turn to the Agreement, recommended the waiv proce- defendant’s claims of error: three dead, er-of-appeal provision is a letter. objections dural a plaint of substantive See, e.g., United States Fernández-Ca unreasonableness. address these mat- We brera, (1st Cir.2010). sequentially. ters probation charges, forthcoming. 1. The record reflects that the office but none these was sought had further information about each of Turbides-Leonardo, dis- argues first The defendant Cir.2006). into by taking account Such a waiver occurred here. court erred trict acquitted charges be- dismissed or several passing Nor did reference underlying those

cause facts background in the section of proven by not were sentencing memorandum cure this he this preserved He says evidence. reference, That particularly omission. of a statement con- argument means up by correspond when not followed some of the Defen- “Background in the tained ing argument in the reference section sentencing memoran- dant” section of his memorandum, nothing did to call dum: court’s attention files, in the evidence As showed objected any defendant consideration examined, many of the indict- that were parts those his arrest that had record got because of lack of ments dismissed ripened into our convictions. While proof supposed par- related to the direct dissenting cavalierly proclaims brother and in ticipation the defendant others made argument appeal was proof there was no at all. “implicit in [the contentions” defendant’s] as is During investigations shown as sentencing, finding to that post in the Report well Pre-Sentence effect render principles would normal many accused defendant has been conclude, meaningless. waiver We there as, many illegal different acts which fore, un- argument that the defendant’s is of these accusation were dismissed [sic] preserved engenders plain error re because insufficient evidence. view. However, no of the mention dismissed or “Appli- made in acquitted was turn to that The de We review. Arguments” cation of Law section of claim fendant bases his of error on the sentencing memorandum. opinion Court’s in States United disposition hearing, At the outset of the Watts, 148, 157, 633, v. 117 519 U.S. S.Ct. the district court confirmed with defense (1997) curiam). (per 136 L.Ed.2d 554 objec- had counsel the defendant no case, that, the Court concluded when to the Report. During tions PSI enhancement, a imposing an offense-level not hearing, defense counsel did mention sentencing acquitted court consider acquitted charges the dismissed at all. or only by conduct if that a proven conduct is 14 Generally, party days a has af of the id. at evidence.2 See 153, receipt report Here, however, of presentence ter a within 117 S.Ct. 633. to, object alia, writing inapposite: sentencing which in inter Watts not “material information” contained in that did use dismissed or acquitted conduct 32(f)(1). Rather, report. Fed.R.Crim.P. A failure its calculus. record, object objec any constitutes waiver used the defendant’s arrest Report tion to such information. See which was laid out United PSI Serrano-Mercado, by v. not ar States F.3d contested defendant. The Cir.2015); was, therefore, fact, rest proven States record Watts, general 2. The two Circuit cases are in Seventh relied these cases the same Short, States v. defendant—United posture holding and adumbrate the in Watts. (7th Cir.1993) Ruffin, and United States v. 479; Short, Ruffin, at at F.3d Cir.1993)—add (7th nothing F.2d 343 345. Though argument. predating the defendant’s Jiménez, (as brother) 7 to assert dissenting see United States does our (1st Cir.2007), properly and thus before that there was a clear or obvious error in district court. the district court’s consideration of the defendant’s full arrest record at the final plainly Nor did the district court step of the sentencing proceeding. Conse taking prolific into account the ar err quently, we find no plain error.3 Unit Cf. record of the defendant —a drug-gang rest ed v. Vega-Santiago, States solely purpose for the of deter enforcer — (1st Cir.2008) (en banc) (“Garden variety point within mining what the GSR the culpability, considerations of criminal his defendant’s sentence should be set. As we re-offense, tory, likelihood of seriousness previously explained, have “a criminal de crime, nature of the conduct and so ‘history fendant’s and characteristics’ are forth should not generally come aas sur among the considerations that a court prise lawyers to trial prepared who have ought sentencing.” to take into account at sentencing.”). Flores-Machicote, 706 at 21 (quoting 3553(a)(1)). § 18 U.S.C. This includes the pos- defendant’s next claim of error past defendant’s record of arrests or dis its that the district court abused its discre- charges, “may missed as such a record tion adequately considering the fac- pattern indicate unlawful behavior 3553(a). § tors set forth in 18 U.S.C. Our any even in the absence of convictions.” review of this claim is for abuse of discre- (internal omitted). quotation Id. marks Gall, tion. See U.S. 128 S.Ct. That the defendant had several ar such datum, important rests is an for we have The defendant’s claim centers on distinguished a series arrests “which his assertion that the district court failed might legitimately suggest pattern only to consider not already that he had unlawful behavior even in the absence of from, served time for a matter incident any say, single convictions” arrest. offense of conviction but also that Lozada-Aponte, United States v. 689 F.3d he had (1st Cir.2012) 791, (quoting potentially been rehabilitated. But these United 57, Zapete-Garcia, mitigating States v. 447 F.3d factors were before the district (1st Cir.2006) (internal indeed, quotation sentencing; they marks court at were omitted)); vigorously pressed by accord United States v. Ocasio- defense counsel. Cancel, 85, (1st Cir.2013). 727 F.3d 91-92 slightest There is not the reason to think authorities, Based on these it that defies reason the district court overlooked them.4 guilt they exceedingly In an effort to blunt the force of actual this reason that become dif- defendant, ing, post-argument, (if all) submitted ignore”). ficult to To the extent at that a list of additional authorities. See 1st Cir. R. any of these cases conflict with our own case 28(j). We have examined these authorities law, we are constrained to follow First Circuit unpersuasive. with care and find them Some precedent. see, factually distinguishable, e.g., are United 633, Matheny, v. States 450 F.3d 642 (6th especially 4. This is so because the sentence Cir.2006) arrest), (involving single some imposed was within the GSR. As the see, error, plain e.g., find no United States v. explained, guideline range Court has itself (7th Guajardo-Martínez, 635 F.3d compendium bears a direct relation to the Cir.2011), language and some contain similar and, 3553(a) considerations listed in section case, see, e.g., to found in our own United thus, within-the-range “likely sentence re- (3d Berry, States Cir. 3553(a) flects the section Rita v. factors.” 2009) (recognizing there be situa States, 338, 355, United 551 U.S. 127 S.Ct. prior tions in which the number of arrests (2007). 168 L.Ed.2d 203 overwhelming suggestive "becomes so provide court’s to ade to this claim district failure is needed defeat No more sentence, though sentencing explanation court without quate Even error. duty “consider all more, plain with a to charged is is not sufficient to constitute 3553(a) factors, it need not relevant section See United v. Medina-Ville error. States mechanically.” Clogston, Cir.2012). do so (1st gas, 700 omitted). (internal quotation marks Here, there is no “more”: the district squarely not the court below did While readily apparent rationale is from court’s by factors cited the defen- address the two sentencing transcript. The made dant, “read[ing] against warned we have about its belief that defen no bones failure to too much into a district court’s underrepre history score dant’s sentencing respond particular to explicitly culpability pat of his sented his because This not arguments.” Id. court has re- persistent arrests and the lack of tern of walk, line quired sentencing courts to respect with to the follow-up 3553(a) line, the section factors. through him. initially preferred against Such were Dixon, States directly character of speak items (1st (explaining that a sen- individual, recidivism, the risk sec- tencing [the court need “address protect public from future need 3553(a) factors, one, in some tion one ] v. Rivera crimes. See United States Cal explicating incantation sort of rote when derón, Cir.2009). 104-05 decision”). have no oc- sentencing its We today. such a impose requirement casion to sentencing impor Transparency Thus, no discretion we discern abuse of tant, readily and we do not condone a court’s failure to acknowl- comply court’s with district failure to it edge explicitly that had mulled the de- 3553(c). imposed by obligations section arguments. fendant’s But neither do we condone defendant’s last claim procedural object failure to in a seasonable manner 3553(c). § stat- implicates 18 U.S.C. This oversight and call such an to the sentenc pertinent part ute provides ing court’s attention in time to correct it at sentencing, “at the time of shall state disposition The failure hearing. open imposition court the reasons for its contemporaneous objection voice a con and, sentence” if the GSR particular error, our review plain strains we months, spans than 24 also more shall plain simply no error here. There is find state reason for a sentence imposing “the if the no reason believe district point range.” at a within the 18 particular court had effected a more literal compli 3553(c). says § The that defendant U.S.C. 3553(c), it ance with section would have sentencing adequately court did not handed down a milder sentence. See Med that, these comply with strictures 584; ina-Villegas, 700 at F.3d therefore, his be vacated. must sentence 1, Mangual-Garcia, 505 F.3d States (1st Cir.2007); see also Turbides-Leonar sound: premise The defendant’s is do, at (explaining 468 F.3d an sentencing court’s of its explanation hoping prevail plain on appellant error choosing top-of-the-range sen reason for probabili must show review “a reasonable months is at best. tence of 168 recondite that, claimed, ty but the error But conclusion that the defendant proceeding of the would have from is un result been premise seeks to draw this (internal marks quotation The defendant not raise this different” founded. did omitted)). below, objection we that a have held alterations in-the-range final claim of error em-. sentence. The defendant’s Rita v. United States, 338, 347, challenge, raised for the first time bodies a 551 U.S. 127 S.Ct. (2007). substantive reasonable- appeal, 168 L.Ed.2d 203 At a bare recently minimum, have ness of his sentence. We a defendant fairly “must adduce that, circumstances, explained powerful mitigating such persuade reasons and appellate standard of review is us that the appropriate district court was unreasonable Vargas- States v. in balancing pros uncertain. See United and cons.” Clogston, 662 (1st (internal García, Cir.2015); quotation 794 F.3d F.3d at 593 mark omit- ted). Ruiz-Huertas, United States Cir.2015). (1st need not re- We hand, In the case at the defendant as- uncertainty even today: solve assum- substantively severates that his sentence is defendant, ing, favorably to the that his unreasonable on two He fronts. first sub- claim of substantive unreasonableness is mits that he deserves a more lenient sen- discretion, reviewable for abuse of it none- tence because his rehabilitation.5 Sec-

theless fails. ond, complains already he that he has served a sentence in a Puerto Rico prison principles. We start with first drug for a 2004 crime—a crime that he evaluating the substantive reason When says is charged conspiracy. incident of a ableness sentence under the abuse of rubric, inquiring discretion court must charge of substantive unrea totality take into account the of the cir sonableness is futile. The offense of con Martin, cumstances. at 92. See viction is serious: the defendant served as principal goal sentencing A is to fashion thriving conspiracy an enforcer for a “sufficient, a sentence is but not drugs protected sold area. The defen necessary.” greater than United States v. history dant’s criminal is bleak. And Carrasco-de-Jesús, though his efforts at rehabilitation are 3553(a)). § (quoting 18 U.S.C. laudable, the district the best In determining sentencing whether a court position weigh credibility of a claim goal, plau has achieved this we assess the of rehabilitation and to balance the sen sibility sentencing court’s rationale tencing light scales in of such a claim. See appropriateness and the of the sentence Gall, 51-52, 128 S.Ct. U.S. itself. id. at 30. So, too, suggestion the defendant’s Challenging imposed punishes a sentence as sub the sentence him twice stantively heavy unreasonable is a lift. for the same criminal conduct is unavail where, grows ing. support, That lift even heavier the defendant relies on a here, § properly guideline provision, the sentence falls within a USSG 5K2.23. That however, Clogston, 662 states that a provision, calculated GSR. See downward 592-93; if departure may see also United States v. Jimé be warranted the defen nez-Beltre, (1st Cir.2006) completed imprison a term of dant has (en banc) for a to the offense of (explaining importance of adviso ment crime incident calculus). ry guidelines in the conviction and that crime the basis “was Indeed, reviewing may apply a “a for an increase in the offense level for the presumption of to a with- instant offense.” United States v. Korne- reasonableness” ment, support, promise re-employ- and a of he notes that he has finished his secured high-school degree, completed various work- upon ment release from incarceration. shops, steady employ- maintained a record of For the rea no further.6 (1st go need (empha- We 89, 99 gay, 410 F.3d above, the sentence elucidated sons however, omitted). Here, Puérto the sis identified conviction drug-trafficking Rico Affirmed. any assigned not was defendant

by the LIPEZ, dissenting. Judge, Circuit in the calculation of history points not Thus, conviction did Cortés- his CHC. treat defendant My colleagues that. level, acquitted charges his offense dismissed and increase Medina’s serve to separate they significance if have as apply. not does section 5K2.23 they may, or the conduct that apart from lily. the paint be to say more would To Hence, not, they find no er- reflect. may plau- court offered Here, sentencing on the court’s reliance in the district ror imposed, for the sentence rationale sible justify sen- arrest record repre- within-the-range sentence range top guidelines tence at —a Having outcome. a defensible sents years nearly four imprisonment term circumstances, we totality of mind the by the sentence recommended longer than did not district court conclude absence government despite — discretion sen- considerable abuse its underlying the conduct any evidence about top at the of—but the defendant Nei- tencing ultimately unproven charges. those words, the sen- nor our precedent In other within—the GSR. ther Court treating as fact mere support than greater but not own cases was sufficient tence behavior are allegations of criminal legitimate goals to achieve necessary by preponder- at least not substantiated sentencing. Indeed, the cases the evidence. ance of agreed parties jointly fact that the that, where the evidence make clear (downwardly vari a lower to recommend of reli- not meet that level culpability does ant) this conclu does not alter sentence by factoring district court errs ability, the cir exceptional In the absence of sion. Ac- charges into the sentence. unproven (such applicability cumstances is entitled to a cordingly, Cortés-Medina sentence), mandatory minimum statutory resentencing in which the unsubstantiated sentencing for a court’s starting point no role. charges play range, not guideline is the determination Review Thus, we I. Standard of parties’ recommendations. any accord consistently refused to

have plain error My colleagues apply the non-binding significance to such decretory of review because Cortés-Medina standard require even to recommendations —or presen his object portion did not why it decided explain court to (“PSR”) listing investigation report tence See those recommendations. to eschew dis against him that either were 167; 794 F.3d at Vargas-García, I dis acquittal.7 or resulted missed 100, 104 challenge Vega-Salgado, agree States v. that Cortés-Medina’s Carrasco-de-Jesús, Cir.2014). unsubstantiated court’s use of these Certainly, unpreserved. charges was 589 F.3d at 29. dissenting here to “dismissed” has 7. The reference what our brother 6. Much of bearing that are encompasses the issues references the district written has no also appeal. pruden- For fairly presented this majority to arrests court and reasons, respond to these tial we elect not to charges. have led to formal extraneous comments. required object was not to proof Cortés-Medina at all.” He further stated that “many charges to the inclusion of these in his of these were dis accusationfs] PSR, missed because of argued as he has not that the arrests insufficient evidence.” Although Cortés-Medina did not repeat subsequent proceedings and did not occur. objection his argument section of his did, however, point He out in his sentenc memorandum, or explicitly assert that the ing flimsy memorandum the foundation for court should not take his dismissed and many charges.8 Referring to his acquitted charges account, objec into court, multiple indictments in state he not tion and assertion are implicit in his con “many got ed that of the indictments dis tentions support.9 lack proof missed because of lack of related Moreover, the supposed participation direct even if plain error ap- review defendant and others there no plies, [was] Cortés-Medina satisfy would its re- convictions, prior Providing In addition to four opportunity objec- final for acquittal Cortés-Medina's PSR lists one pronouncement tions after the of sen- multiple tence, for arrests were subse purpose[s] "will serve the dual quently dismissed. permitting the district court to correct on spot any error it have made and object 9. Cortés-Medina did not to use of his guiding appellate review.” history unsubstantiated criminal sen- after Bostic, (6th United States v. imposed, obligation tence was but the to reit- (footnote omitted) (quoting United argument point erate an at that is uncertain. Jones, (11th States v. Gallant, See United States v. Cir.1990), grounds by overruled on other Unit- (1st Cir.2002)("CT]here is no Federal Morrill, (1993)). ed States v. 984 F.2d 1136 giving Rule of Criminal Procedure advance Sixth The Circuit’s rule is itself derived from a requirement notice to counsel of a to make requirement similar in the' Eleventh Circuit. Indeed, post-sentence objections.”). we have Jones, (instructing 899 F.2d at 1102 dis- recognized might the risk that a defendant fully objec- trict courts “to elicit articulated by resuming argu- irritate the district court tions, sentence, following imposition of imposed. ment after the sentence is Id. at findings court’s ultimate of fact and conclu- (observing judges 1188-89 that “few trial law”); (stating sions of id. at 1102-03 requires would warm to a rule which contin- “[c]lear articulation” from defense counsel argument gives ued after the court its sen- appellate precisely will "tell the which tence”). objections preserved have been and which thereby To eliminate that risk—and dimin- waived, appellate have been and enable the uncertainty appeal concerning ap- ish apply proper court to standard of review propriate urge standard of rfeview—I our preserved”). to those court to follow the lead of other circuits and value of such a rule is illustrated this adopt prophylactic requiring rule sentenc- case, requirement where the would have ing judges expressly parties ask the for avoided, minimized, confusing or at least objections after the sentence is announced. jumble applicable of standards deemed Circuit, example, adopted The Sixth has majority: pursuant supervisory power such a rule to its (1) plain error for the claim that the district jurisdiction. over district courts within its improperly acquitted considered sentencing judges, The rule directs (2) charges; dismissed abuse discretion for pronouncing after the defendant's sen- adequately claim that the court failed to adjourning tence but before the sentenc- consider the factors set forth in 18 U.S.C. ing hearing, parties to ask the whether 3553(a); (3) § plain error for the claim that they any objections have to the sentence provide adequate expla- the court failed to just pronounced previously that have not imprisonment; nation of the chosen term of been raised. If the district court fails to (4) provide parties an uncertain standard of review for opportunity, with this they challenge objec- will the defendant's to the substantive not have forfeited their required (leading tions and thus will not be reasonableness of his sentence discretion). plain appeal.... majority apply demonstrate error on abuse 72 below, majority explain I a sen fleeted criminal behavior. As the

quirements.10 As reports, court a sen judge may properly rely on nonetheless chose tencing based, part, tence in on charges to in Cortés-Medina’s acquitted dismissed and persistent “pattern of arrests and lack of without de crease a defendant’s sentence respect charges follow-up with of the evi termining, against My initially preferred were him.” dence, charges culpable reflect colleagues problem have no with that ra support conduct. Absent record for treat tionale, quoting language from one of our sufficiently ing unproven charges as precedents stating that a of arrests record founded to meet modest stan well “may 'a charges pat or dismissed indicate dard, justify them to a court’s use of tern of in unlawful behavior even the ab that must higher sentence is error be char v. sence of convictions.’” United States Here, as plain.11 acterized district (1st Flores-Machicote, 706 F.3d 21 Cir. invoked when selecting such 2013) (quoting United States v. Lozada- high end applicable Guidelines Cir.2012)). (1st Aponte, F.3d despite range, the Probation Office’s ina that, They maintain because Cortés-Medi underlying bility explain conduct or record, na has not contested his arrest reasons for the dismissals. give The error fact, record was ... proven “[t]he arrest manifestly prejudicial. thus As for was properly thus before the district miscarriage-of-justice prong, previ we (Citation omitted.) court.” ously have that “the recognized difference jail potential in time be a in would concern agree I general with the proposition Ramos-Gonzalez, any balance.” United States past criminal acts that did not result (1st Cir.2015) may given weight conviction be sentenc- 77 Torres-Rosario, (quoting United States v. ing if the proof determinations available Cir.2011)). 110, 117(1st those criminal acts meets some standard of reliability. my I do not col- understand Accordingly, under either standard of leagues disagree with proposition. review, prevails Cortés-Medina on his Nevertheless, when the crimi- defendant’s procedural claim error. nal history contains series of dismissed Reliability acquitted charges, my or II. The colleagues hold Standard of that a that pat- district accord easy This should case for be conclud of alleged activity tern probative necessary because, ing that remand is weight solely arrests, if based even majority acknowledges, the Probation the court no facts substantiating has Office was to obtain unable information underlying conduct the alleged charges. underlying about the conduct the unproven acquitted charges reported majority or The Sentencing Cortés- is wrong. Medina’s PSR. The district court had based on allegations thus unexamined of crimi- no evidence that those in fact re- nal permitted by behavior is not our own 10. The four elements of the plain majority test error asserts that “it defies reason” (1) (2) an error that was are: clear or obvi to conclude that there was a clear or obvious ous, (3) which affected the however, both belied, error here. That assertion (4) rights “seriously impaired substantial Supreme well-established Court and First fairness, integrity, public reputation or below, precedent, preclud- Circuit described judicial proceedings.” United States v. Ra ing reliance on a bare arrest record. mos-González, (1st Cir. 2015) (quoting Ramos-Mejía, United States Cir.2013)). (1st precedent. justification. out or Court articu See United States v. Za- view, my colleagues lating summarily pete-Garcia, their inapposite Supreme the dismiss as Court’s (noting that “arrest ‘happens to the inno- ” Watts, decision in United States v. 519 cent as guilty’ well as the (quoting Mi- 148, 633, 117 U.S. S.Ct. 136 L.Ed.2d 554 States, chelson 469, v. United 335 U.S. (1997) curiam). There, the (per Court (1948))). 69 S.Ct. L.Ed. sentencing may held that a court consider then, The next question, is what stan- acquitted impose conduct to an offense- reliability dard of applies the inquiry to level as that long enhancement as conduct into the conduct underlying unproven by a proven preponderance is of the evi charges. explain I below, As the answer is at dence. Id. 633. S.Ct. The provided unequivocally by both insists majority inapplicable that Watts is Court and First Circuit caselaw.. district because the court in this case re lied on pattern Cortés-Medina’s of dis Teaching A. The of Watts acquitted missed or not charges, his con The Supreme Court’s decision Watts And, they say, duct. because Cortés confirms that a sentencing court past charges Medina’s record of was “a give weight unproven to crimes—whether fact,” proven no error occurred.12 dismissed, uncharged, or acquitted —unless attempt to distinguish This Watts is mis- by the court finds at least preponderance guided. A series of arrests or past of the evidence that the underly- conduct charges inseparable is from the underlying ing charges Watts, those occurred. conduct. refers Watts rejected Court argument an that principles conduct because that is pertinent infor- of process due foreclose reliance on acquit- assessing mation in whether the defen- ted conduct to calculate the Guidelines dant’s criminal past activity is understated range, stating jury’s that “a verdict of reference his convictions alone. The acquittal not prevent does the sentencing question relevant cannot whether be considering from conduct underlying defendant’s non-conviction arrests acquitted charge, long so as that con- prosecutions reported accurately are —in proved duct has been a preponderance likelihood,' all will contain an PSR accu- the evidence.” 519 U.S. rate record detentions and —but added). S.Ct. (emphasis By including whether the defendant in fact committed qualification, this the Court reaffirmed its notwithstanding listed offenses the ab- prior “application holding pre- sence of convictions for those crimes. In- ponderance sentencing standard at gener- deed, the defendant’s conduct must be the ally process.” satisfies due Id. because, focus where initially (citing S.Ct. 633 Pennsylva- McMillan v. fruit, against filed him they did not bear do nia, 79, 91-92, 477 U.S. 106 S.Ct. not demonstrate A culpability. sentencing (1986)). L.Ed.2d 67 simply presume cannot that the lack of convictions is Although attributable flawed or the focus in Watts was on the prosecutorial judicial systems lax or use of acquitted rather conduct to set Guide- than the range, defendant’s innocence. Some- lines suggest the Court did not times, systemic flaws lead to arrests with- standard demanding prepon- less than majority holding any frames its an ab- error at all. error, plain reasoning rejects sence of but its reliability use measure the Court applies to the dard —the derance-of-the-evidence any unprov other acquitted conduct—or sentencing for other facts— has endorsed a sen activity choosing criminal en process for also consistent with due —in contrary, To the range.13 tence within the as underlying acquittal. He conduct opinions in the Watts multiple statements Sentencing neither Commis serts any used assumption that facts reflect an may entirely nor sion the courts exclude allegations sentencing pertaining — from calculus “information conduct, or otherwise —must past justify which would otherwise enhance evi proven by be upward departure,” or or ment of sentence higher standard of relia or an even dence probative of impose higher “some standard First, quotes commen bility. the Court and re than the Constitution laws worth that stating § 6A1.3 tary from Guidelines quire,” simply because information facts relevant ‘appropriate’ “it is acquitted at “pertains to conduct.” See id. by preponderance a proved sentencing be (Scalia, J., 158, concurring).15 117 633 S.Ct. 156, evidence,” at 117 519 S.Ct. of the U.S. 633, majority on to make the goes and the Third, consistently, the and Watts Court linking pre the quoted above observation that, acknowledged possibility the in some the require ponderance standard with circumstances, clear- demanding the more addition, In as Id.14 process. ments of due and-convineing might evidence standard be above, Court framed its described the 156-57, 117 appropriate. Id. at S.Ct. 633. broadly, any sug without holding in Watts lengthy citing In a footnote cases reflect- preponderance the standard gestion that ing divergence opinion among “a of the selecting the of purpose applies only Circuits,” 633, at 117 S.Ct. the id. range: sentencing court is a the Guidelines quotes Eighth char- Court Circuit case general, in to consider “conduct permitted, acterizing the Court’s McMillan acquitted charge, long as the so underlying by proved prepon approving preponderance has been a as conduct decision “ 157, 117 evidence.” Id. at derance of the only garden variety ‘for sen- standard ” 633. S.Ct. determinations,’ tencing id. at n. 156 (quoting 117 S.Ct. 633 United States Second, points out that Justice Scalia (8th Cir.1991)). Townley, the evidence stan- preponderance of majority admissibility under the rules of evidence Notably, the issue debated 13. trial, applicable provided at the in- in Watts was not whether lesser dissent apply, acquitted but whether formation has sufficient indicia of relia- standard should bility accuracy. at all calculat- support probable conduct be factor in should its dissent, ing range. his In Jus- commentary Guidelines invoked Court states: per- the Guidelines tice Stevens conceded that pre- use "The Commission believes that of a selecting acquitted mit the of conduct use ponderance ap- of the evidence standard is particular range, but sentence within requirements process propriate to meet due argued acquitted should be en- conduct resolving policy disputes re- concerns in setting tirely from consideration in excluded guidelines garding application to the 162, 166, range. See 519 U.S. of a U.S. at facts case.” J., (Stevens, dissenting). S.Ct. cmt.). (citing § S.Ct. 633 6A1.3 states, 6A1.3(a) of the Guidelines Section ex- 15.Although Justice Scalia does refer part: standard, preponderance pressly he to the opinion’s implicitly accepts the lead affirma- any concerning resolving dispute long-held tion of McMillan the Court's important sentencing deter- factor mination, preponderance may view that evidence the court consider rele- regard to its the constitutional baseline. vant information without words, In other the Court Watts consid- standard applies to the sentencing court’s that, times, possibility ered the an as- factual findings.”); United States v. Gobbi sessment more reliable than the prepon- (stating applicable standard be might derance conduct, that “acquitted if proved aby sentencing facts. Neither the Court nor preponderance evidence, still quoted the circuits it in Watts contemplat- form the basis for sentencing enhance possibility less proof ed reliable than ment”). preponderance of the evidence. This view I recognize that, although this standard that Waits reaffirms established, reliability is well we have evidence the minimum standard of reli- not always used words “preponderance ability is also in academic reflected litera- of the evidence” when considering a dis See, e.g., ture. Murray, Claire McKusker trict court’s reliance on that did

Hard Cases Make Law: The Good Intel- See, not lead to conviction. e.g., Flores- History Acquittal lectual Prior Sentenc- Machicote, 16; Lozada-Aponte, (2010) ing, 84 St. John’s L.Rev. 792; Zapete-Garcia, 689 F.3d at (“Under Watts, prior acquittal sentencing Nonetheless, at 61. we have applied that mandated, permitted but not and a hard standard even when we have not referred floor of reliability is established in the “name,” to it by routinely scrutinizing the form of the requirement prior acquit- facts underlying unproven the criminal proved ted conduct be to a preponderance charges necessary to ensure the of degree evidence.”). of the See,

reliability. e.g., United v. States B. First Circuit Law (1st Cir.2015) Hinkley, 803 F.3d 93 (upholding court’s reliance on reports preponderance-of-the-evidence inappropriate contact sexual with minors considering baseline for sentencing facts is where district court “found that it was also well in our established circuit. In reasonable to rely experience on the of the deed, applied we have the standard in this detective who prepared police the reports” context, i.e., very to the choice of sentence and where reported “certain details by [a range within the Guidelines where the reports victim] made the ‘almost self-au sought rely unproven to on criminal ”); thenticating’ States United v. Díaz-Ar Lombard, conduct. See States v. 125, 127, (1st royo, 797 F.3d 130 n. (1st Cir.1996) 3 (“[T]he 102 F.3d district Cir.2015) (noting prosecutor’s explanation may ... give weight choose that charges for murder and attempted uncharged fixing offenses in the sentence “only murder dropped were after the sole statutory range within the if it finds a (a surviving witness the incident minor preponderance of evidence that they oc who was positively identify able the ”); .... curred see also United States v. shooter) (1st defendant as the was threatened Munyenyezi, 781 F.3d Cir. 2015) (“[A] jurisdiction,” and fled the and that judge defense can find facts for sen counsel tencing directly “did not purposes by challenge the evidence, prosecutor’s of the the so account circumstances long as those facts do not minimum statutory surrounding affect either the of the charges”); dismissal or the ” (citations Flores-Machicote, statutory (noting at 21 maximum.... omit ted)); Fermin, that the United States v. district court “went to F.3d considera (1st Cir.2014) (“While must, ble jury lengths through to walk the defen course, beyond prior find facts dant’s with reasonable interactions the law ... doubt, a preponderance-of-the-evidence detail, explained, in some why [and] [it] allegations have merit. See Gal- interactions that the outcome of these believed the (“We lardo-Ortiz, have the seriousness underrepresented against relying district courts conduct”); cautioned Unit- past criminal defendant’s a defendant’s Gallardo-Ortiz, 808, mere arrests as indicative of ed States justify upward departure (1st Cir.2012) character that the (noting dis- 814-15 charge account, alia, from the GSR since inter took into trict court guilt of equate not with criminal alone does dismissed on charges that numerous were conduct.”); Zapete-Garcia, (i.e., merits), charged grounds not the speedy trial policy (noting guideline at 61 contention that rejecting important “highlights] statement charges “the dismissed the court relied on of past between direct evidence distinction concluding displayed that he vio- when character”); Tabares, and mere arrests that criminal behavior lent United States may have the result of or not been (noting Here, the district court wrongdoing”). “not charges were dismissed some concerning the conduct had no evidence any finding on the merits because charges against case,” underlying the various was de- because the defendant but ultimately were dis- Cortés-Medina that “deny ported, and defendant did acquittal. resulted in At the facts, missed or presentence as set forth rested”). listing sentencing hearing, after those report, upon which these explana- noting absence dismissals, Applying the C. Standard tion district court light- “firm merely belie[f] voiced its above, precedent Despite described ning strike twice in same doesn’t my colleagues accept past a bare list of place.” sufficiently charges as reliable arrests did, fact, in Presumably, that the defendant court to a evidence the meant offer he commit the crimes for which was metaphor different there’s —“where They charged smoke, but not convicted. claim that un- say there’s fire”—to the precedent recog in our circuit ample proven charges had substance because other,' nizes a series arrests —as distin had similar criminal Cortés-Medina single “might from a le guished participating convictions and also admitted arrest — gitimately suggest pattern drug charged a of unlawful this conspiracy the any years behavior even in the absence of convictions.” of incarcera- case. When additional balance, however, a-Aponte, 689 F.3d at due pro- Lozad tion are in the metaphors. F.3d at cess than (quoting Zapete-Garcia, more requires 61). They that Cortés-Medina’s fire the past assert district court infers — “pattern of and the “lack fol be on pre- arrests” criminal conduct—must based charges low-up” respect ponderance with filed of the evidence. “speak directly him the charac against to majority the to sup- The cases cited individual, recidivism, the

ter of the risk of port the use of a series of arrests as protect public and the need to the from proxy culpability do not hold otherwise. future crimes.” above, the panel As Flores- described Yet, the district court’s careful even where defendant’s record Machicote noted allegations prior of crimi- examination of inter- contains a multitude the conduct, at In nal court—and in actions with the law. district we Zapete-Garcia, panel rejected reliance preponder- turn —must be certain that a more than supports single on a arrest that occurred ance of the evidence conclusion prior activity a decade earlier. 447 F.3d 60-61. In and to series of cases, remaining alleged two where crimes. a pattern Invocation of gave cursory attention to the district does not eliminate the need examine arrests, past on a series of each unproven court’s reliance criminal charge under the it is evident that the preponderance nonetheless district of the evidence standard. presented courts facts had been with about case, the majority this concedes that underlying conduct. See United States no factual support was offered to substan- Ocasio-Cancel, 91-92 charges tiate the which district Cir.2013) (indicating that the defendant’s court relied. The Probation Office has detail giving PSR contained on the events tried, acknowledged failed, also that it but noting rise to the dismissed to obtain supporting information. object “any that the defendant did not Hence, record, on this defendant Cortés- discussion); aspect” of Lozada- Medina is entitled to resentencing without (referring Aponte, 689 F.3d to “Lo reliance on acquitted the dismissed and frequent zada’s run-ins with law enforce charges. I respectfully therefore dissent Florida, Illinois, Rico, ment in and Puerto from my colleagues’ conclusion the con- apparently some of involved which fire trary. arms”). dispute I that the do district may rely depiction on a PSR’s led circumstances dismissed sufficiently reliable evidence of meet conduct to standard, particularly

the evidence in the any objection.

absence of evidentiary support No such exists here. ASSETS, LLC; GLOBAL TOWER PSR contains an unelabo- Cortés-Medina’s Networks, Northeast Wireless acquitted rated list his dismissed LLC, Plaintiffs, Appellants, charges, stating with notations “Court requested documents but were have not

been received.” The states that PSR ROME; Planning TOWN OF Rome some of the dismissed were Board, Defendants, Appellees. cause, lack of probable while others are No. 15-1140. simply described as “dismissed.” The dis- trict court improperly thus relied on those Appeals, Court of States charges to sentence Cortés-Medina to a First Circuit. longer imprisonment term of than it other- Jan. imposed. wise would have

III. Conclusion rely

A district court on a defen- unproven past activity

dant’s criminal

increase sentence later his for a crime determines, by prepon-

unless the court evidence,

derance of the prior require-

conduct fact occurred. This applies equally single

ment to a instance of

Case Details

Case Name: United States v. Cortes-Medina

Court Name: Court of Appeals for the First Circuit

Date Published: Jan 6, 2016

Citation: 810 F.3d 62

Docket Number: 14-1101P

Court Abbreviation: 1st Cir.