UNITED STATES OF AMERICA, Appellee, v. YAVIER MOJICA-RAMOS, Defendant, Appellant.
Nos. 22-1204, 22-1205
United States Court of Appeals For the First Circuit
June 6, 2024
Before Montecalvo, Hamilton, and Rikelman, Circuit Judges.
Kevin E. Lerman, Research & Writing Attorney, with whom Héctor L. Ramos-Vega, Interim Federal Public Defender, Eric Alexander Vos, Federal Public Defender, and Franco L. Pérez-Redondo were on brief, for appellant.
E. Giovannie Mercado, Assistant United States Attorney, with whom W. Stephen Muldrow, United States Attorney, Mariana E. Bauzá-Almonte, Assistant United States Attorney, Chief, Appellate Division, and Julia M. Meconiates, Assistant United States Attorney, were on brief, for appellee.
* Of the Seventh Circuit, sitting by designation.
June 6, 2024
MONTECALVO, Circuit Judge. In July 2021, defendant-appellant Yavier Mojica-Ramos (“Mojica“) entered into a plea agreement under which he promised to plead guilty to unlawfully possessing two machineguns in violation of
Despite the parties’ recommendations, the district court ultimately imposed two upwardly variant sentences: (1) a seventy-two-month sentence for Mojica‘s
For the reasons below, we find that the prosecutor‘s sentencing advocacy did not conform to the most meticulous standards of performance required by Mojica‘s entrance into the plea agreement. To remedy the prosecutorial breach, we must vacate Mojica‘s
In May 2018, Mojica began a five-year term of supervised release after serving a five-year sentence for possession of a firearm in furtherance of drug trafficking, a felony under
On October 23, 2020, undercover Puerto Rico Police Bureau officers were monitoring for violations of a COVID-19 executive order that required wearing facemasks in public places. The officers saw Mojica walk into a hair salon without donning a facemask and called for backup. Multiple officers and a firearm-sniffing dog arrived at the salon, and the dog positively alerted to a shoulder bag that the officers saw Mojica carrying. The officers searched the bag and discovered two Glock pistols that had been modified to be machineguns, sixty-two rounds of ammunition, a plastic bag containing marijuana, and a white oval pill.
On July 28, 2021, Mojica signed a plea agreement under which he promised to plead guilty to unlawful possession of the two modified machineguns in violation of
the guidelines range after Mojica‘s criminal history category (“CHC“) was confirmed. The guidelines range for the
A. The Government‘s Sentencing Memorandum
Before Mojica‘s sentencing for the
The government summarized that these photos and the video “are additional evidence that [Mojica] has an interest in, and likely participates in, other criminal behavior beyond the machinegun count charged.” Relying on this “alarming content,” the government called Mojica “an individual with a penchant for high-capacity firearms, drugs, and criminal activity.” Likewise, it labeled Mojica as having an “affinity for high-capacity firearms” and an “apparent infatuation with firearms.” The government then urged the court to consider the cellphone content as “additional information” on Mojica‘s criminal tendencies at sentencing.
The government‘s sentencing memorandum also elaborated on the dangerousness of machineguns and its belief that the images from Mojica‘s phone “suggest” his “participat[ion] in other criminal activity involving high-capacity, high-powered weapons of war.” The government specifically stated that “[t]he danger to the community and the serious nature of the offense should be considered exceptional in this case.” Furthermore, the government highlighted high rates of gun violence in Puerto Rico, the purported deterrent effect of lengthy sentences for gun offenders, and the “particularly strong” need to protect the public from Mojica.
In response to the government‘s sentencing memorandum, Mojica filed a motion to compel specific performance of the plea agreement. Mojica alleged that the government breached the plea agreement by impliedly advocating for an upwardly variant sentence through its sentencing memorandum, and he requested that the court order specific performance and transfer the case to another judge for sentencing. The government opposed the motion to compel, arguing that it was required “to share with the [c]ourt information relevant to the imposition of a sentence,” and highlighted the need to “contextualize[] the offense to which [Mojica] recently pleaded guilty.”
After the motion to compel was fully briefed, the district court issued an opinion and order denying Mojica‘s motion. The court rejected Mojica‘s contention that the government had “no . . . obligation” to provide the court with his cellphone content. The court also agreed with the government that the photos and video demonstrated Mojica‘s “affinity for the unlawful possession of firearms and controlled substances,” which “suggests a lack of respect for the law and a threat to public safety.” Furthermore, the court concluded that the government had no duty to authenticate the images before submitting them as part of its sentencing memorandum. Lastly, the court did not find the government‘s references to the case being “exceptional” to be violative of the plea agreement.
Mojica filed a motion for reconsideration, which the court denied on largely the same grounds. But unlike in its initial order denying the motion to compel, the court‘s order on reconsideration suggested its acceptance of the cellphone images as bearing sufficient indicia of reliability. The court validated the “inference” that Mojica saved the images on his phone, as “[t]his evidence did not spontaneously appear on his device,” and concluded that he “does, indeed, have an affinity for firearms.” Moreover, because Mojica pled guilty to the machinegun possession charge, the court adopted the government‘s position that “it logically follows that the nature of Mojica‘s affinity for firearms is insidious.”
C. The § 922(o) Sentencing Hearing
On February 28, 2022, the court held a sentencing hearing for the
After Mojica‘s counsel advocated for a thirty-seven-month sentence, the government stated that it “stand[s] by its recommendation made in the plea agreement,” and noted that it “is entitled to request a sentence at the upper end” of the guidelines range. The government then formally requested a top-of-guidelines sentence of forty-six months. Immediately thereafter, the government discussed how Mojica‘s offense was “part of a broader problem here in Puerto Rico where, frankly speaking, armed violent crime is a disease.” The government cited statistics of exceptionally high murder rates in Puerto Rico, and it specifically commented that Mojica‘s recidivism and “possession of loaded machine guns” constituted “an even bigger part of the problem” than the possession of firearms generally. The government concluded its argument by reiterating its request for a forty-six-month sentence.
In issuing the sentence, the court rejected the parties’ recommendations for a guidelines sentence and imposed an upwardly variant seventy-two-month sentence.2
D. The Revocation Sentencing
Immediately following the
to thirty months. Mojica‘s counsel requested a twenty-four-month sentence to run concurrently with the seventy-two-month
The court revoked Mojica‘s supervised release and reexplained the offense conduct. Before issuing the sixty-month statutory maximum revocation sentence, the court cited “the seriousness of the violations,” Mojica‘s lack of “respect for the law,” Mojica‘s failure to “perform[] pro-social activities that could have had a positive impact on his rehabilitation,” and how “the original sentence did not serve the objective of punishment or deterrence” as the bases for imposing a significant upward variance. Mojica‘s counsel objected to the sentence as procedurally and substantively unreasonable, specifically referencing that Mojica opposed the court‘s decision to upwardly vary.
In total, the court sentenced Mojica to eleven years of incarceration -- seventy-two months for the
II. Discussion
A. Mojica‘s Prosecutorial Breach Claim
“If a proper objection is brought before the district court, breaches of plea agreements present questions of law for plenary review.” United States v. Gonczy, 357 F.3d 50, 52 (1st Cir. 2004). Mojica has preserved his prosecutorial breach claim by raising in-depth objections in his motion to compel specific performance and reraising the objection after the
At the outset, the government heavily relies on its technical compliance with the plea agreement as assurance that it did not breach the agreement. To be sure, the government irrefutably abided by its obligation to ask for a sentence “within the applicable Guidelines range” and never explicitly requested an above-guidelines sentence.
Beyond recognizing that the government technically complied with the agreement by recommending a within-guidelines sentence, however, we cannot validate the government‘s “overall conduct” as “reasonably consistent with making such a recommendation, rather than the reverse.” United States v. Canada, 960 F.2d 263, 269 (1st Cir. 1992). Here, the government presented the court with approximately 250 photos of firearms and drugs and an unanalyzed video of an individual “resembling” Mojica to offer “additional evidence” of his “likely” participation in “other criminal behavior beyond the machinegun count charged.” And even more problematically, the government told the court that the offense and Mojica‘s dangerousness “should be considered exceptional.”
To defend its submission of the cellphone content and its characterization of Mojica‘s conduct, the government points to its obligation to provide “relevant facts” for the court‘s sentencing considerations. We have acknowledged the difficulty in “reconcil[ing] competing centrifugal and centripetal forces: the prosecution‘s solemn duty to uphold forthrightly its end of any bargain that it makes in a plea agreement, and its equally solemn duty to disclose information material to the court‘s sentencing determinations.” United States v. Saxena, 229 F.3d 1, 5 (1st Cir. 2000) (citations
But a prosecutor is not free to present this information to the court in ways that subvert the plea agreement‘s “limits [on] the purpose of [their] remarks.” Miranda-Martinez, 790 F.3d at 275. For example, “when a prosecutor . . . gratuitously offers added detail garbed in implicit advocacy, a court might well find that the prosecutor is actually seeking a result in a manner that breaches the agreement.” Id. A prosecutor also may not discharge their plea obligations in an “impermissibly equivocal, apologetic, or begrudging” manner. United States v. Davis, 923 F.3d 228, 239 (1st Cir. 2019). Put differently, a prosecutor may not use their duty of candor “as an instrument for thwarting” their plea agreement obligations. Saxena, 229 F.3d at 6.
Even if we accept the government‘s contention that its duty of candor compelled it to disclose the photos and video, it made several serious and unacceptable missteps in presenting this information to the court. First, the government‘s characterization of the offense and Mojica‘s dangerousness as “exceptional” violated the plea agreement‘s mandate that it request a within-guidelines sentence. The government did not address its description of the case as “exceptional” in its briefing before this court. But when asked about this conspicuous omission at oral argument, the government responded that depicting the conduct as “remarkable” or “really bad” by using the word “exceptional” should not be read as implicitly recommending an upward variance. Instead, the government insisted that calling Mojica‘s conduct “exceptional” was appropriate given the government‘s request for a high-end guidelines sentence.
We disagree. As the government is well aware, courts may issue upwardly variant sentences where “the case at hand falls outside the ‘heartland’ to which the Commission intends individual Guidelines to apply.” Rita v. United States, 551 U.S. 338, 351 (2007). Where the offense involves “idiosyncratic facts,” United States v. Bruno-Campos, 978 F.3d 801, 806 (1st Cir. 2020), or “especially heinous” conduct, United States v. Rivera-Morales, 961 F.3d 1, 19 (1st Cir. 2020), a court may impose an upward variance to account for the fact that the guidelines’ “heartland” merely contemplates a typical or “mine-run” case, see United States v. Del Valle-Rodríguez, 761 F.3d 171, 177 (1st Cir. 2014). Calling the offense “exceptional” -- especially in a sentencing memo that repeatedly underscored Mojica‘s “penchant” for crime and “infatuation with firearms” -- implied that the government saw Mojica‘s case as falling outside the guidelines’ heartland. Similarly, during the sentencing hearing, the government referred to Mojica‘s conduct as “a big part of the problem” of violent crime in Puerto Rico.
Although the government was permitted to explain its rationale for a high-end guidelines sentence, see United States v. Irizarry-Rosario, 903 F.3d 151, 155 (1st Cir. 2018), here, the government went beyond presenting pertinent information in an objective manner to gratuitously framing
Second, and relatedly, the government was not “merely drawing facts and law to the court‘s attention,” Clark, 55 F.3d at 13, when it encouraged the court to consider the photos and video as “additional evidence” of Mojica‘s “likely” participation in other unproven criminal conduct. We have repeatedly explained that “a sentencing court may not rely upon a defendant‘s prior arrests or unproven charges in fixing a sentence, unless there is proof by a preponderance of the evidence that the defendant engaged in the underlying conduct alleged.” United States v. Rivera-Ruiz, 43 F.4th 172, 181-82 (1st Cir. 2022) (collecting cases).
But if proven by a preponderance of the evidence, uncharged criminal conduct can be “offered to demonstrate [the defendant‘s] under-represented criminal history score . . . or his history and characteristics, under
The government‘s duty of candor does not allow it to goad the court into relying on uncharged conduct without providing any corroborating evidence that Mojica was involved in the alleged firearm and drug crimes depicted in the cellphone content. Aside from stating that the images were extracted from Mojica‘s phone, the government did not attempt to demonstrate by a preponderance of evidence that Mojica was involved in the purported crimes. And none of the images definitively portrayed Mojica as a perpetrator. In fact, the government concedes that it did “not submit[] evidence to support” finding that “any [of the] substances depicted in the photos” were actually illegal drugs, “any guns were used in connection with drug trafficking or any other crimes,” or that Mojica “physically possessed” any of the pictured drugs or guns.
In addition, during oral argument, the panel pressed the government on its failure to professionally analyze the cellphone video to identify Mojica, and the government made no effort to refute this concern. Rather, the government maintained that it was proper to suggest to the court that Mojica was depicted in the video
Therefore, in full context of its sentencing advocacy, the government‘s insistence that the court consider unproven conduct -- seemingly under the guise of identifying public safety and deterrence issues -- further signaled to the court that the prosecutor did not genuinely believe the recommended guidelines sentence was appropriate. Indeed, in so doing, the government suggested a basis for the court to upwardly vary while neglecting our sentencing caselaw‘s limitations on considering uncharged conduct.
We recognize that the government was undoubtedly authorized to explain its rationale for a high-end guidelines sentence without “sugarcoat[ing] the facts.” Almonte-Nuñez, 771 F.3d at 91. But despite telling the court that it was requesting a within-guidelines sentence, under the totality of circumstances here, “the substance of the prosecutor‘s argument . . . can only be understood to have emphasized [Mojica‘s] wrongdoing . . . , advocating for the imposition of a higher sentence than [an] agreed-upon [guidelines] term.” Gonczy, 357 F.3d at 53. By effectively “urging the court to impose a lengthy sentence within a context suggesting that [they] had in mind something greater than” the within-guidelines sentence the parties agreed upon, Canada, 960 F.2d at 270, the prosecutor wrongfully undermined the plea agreement. Accordingly, we vacate Mojica‘s
B. Remedy for Prosecutorial Breach
Having concluded that the prosecutor breached the plea agreement, we must consider the appropriate remedy. In addition to vacating his
We begin with whether to vacate Mojica‘s revocation sentence based on the government‘s breach. Here, the revocation proceedings began immediately after the
The government is correct that it did not agree to recommend any particular sentence at the revocation sentencing. We also recognize that the revocation sentencing constituted a separate proceeding
Although we have vacated and remanded a sentence “with instructions to impose a specific sentence in order to achieve specific performance of [a plea] agreement,” we have cautioned that such a “remedy is extraordinary, however, depriving the trial court of its discretion in sentencing.” United States v. Kurkculer, 918 F.2d 295, 299 (1st Cir. 1990). Mojica‘s preferred remedy does not bind us. See Canada, 960 F.2d at 271 (“The choice of remedy rests with the court and not the defendant.“). We decline to remand with orders to impose particular sentences, but rather, “in accordance with our normal practice” upon finding prosecutorial breach, we remand the
III. Conclusion
For the foregoing reasons, we vacate Mojica‘s
Notes
The government agrees that Mojica has preserved his prosecutorial breach claim to challenge his
Relatedly, for the first time in his reply brief, Mojica argues that the plea agreement language bound the parties to advocate for the same within-guidelines sentence for the