UNITED STATES of America, Appellee, v. Jorge REYES-SANTIAGO, Defendant, Appellant.
Nos. 12-2372, 12-2381.
United States Court of Appeals, First Circuit.
Sept. 23, 2015.
799 F.3d 453
Luke Cass, Assistant United States Attorney, with whom Rosa Emilia Rodriguez-Velez, United States Attorney, and Nelson Perez-Sosa, Assistant United States Attorney, Chief, Appellate Division, were on brief, for appellee.
Before TORRUELLA, LIPEZ, and BARRON, Circuit Judges.
LIPEZ, Circuit Judge.
Appellant Jorge Reyes-Santiago (“Reyes“) was among 110 defendants charged in a two-count indictment with drug and firearms offenses arising from a massive drug ring operating in public housing projects in Bayamón, Puerto Rico. Most of the high-level members of the conspiracy, Reyes among them, pled guilty pursuant to plea agreements. Other than for Reyes, the sentences imposed on Count One, the drug count, ranged from 78 months to 324 months,1 the latter imposed on the chieftain of the enterprise. Reyes received the stiffest Count One sentence: 360 months. In this appeal, he seeks resentencing on Count One on three grounds: the government‘s alleged breach of his plea agreement, the sentencing court‘s alleged inappropriate conduct in demanding witness testimony, and the disparity between his sentence and those of similarly situated co-defendants. Reyes also claims the district court erred in ordering a 24-month consecutive sentence for his violation of supervised release conditions imposed in an earlier case.
We find merit in the disparity argument. Ultimately,2 in sentencing the lead conspirators, the district court refused to accept stipulated drug amounts only for Reyes, listed as Defendant # 9 in the indictment, and for the conspiracy‘s kingpin, Defendant # 1. Although sentencing courts have the discretion to reject recommendations made in plea agreements, and need not uniformly accept or reject such stipulations for co-defendants, they nonetheless must impose sentences along a spectrum that makes sense, given the co-defendants’ criminal conduct and other individual circumstances. In this case, after reviewing Presentence Investigation Reports
Given that resentencing must occur, we need not decide whether the government breached Reyes‘s plea agreement in the prior sentencing proceedings. However, we discuss certain aspects of the government‘s performance to provide guidance for the proceedings on remand. Finally, as explained below, resentencing also is necessary for Reyes‘s violation of his conditions of supervised release.
I.
Before delving into the substance of this case, we address the government‘s motion to dismiss the appeal on the ground that it was not timely filed.3 Under
A. The Consequence of Untimely Filing
Although we previously have described the time limits in Rule 4(b) as “mandatory and jurisdictional,” United States v. Rapoport, 159 F.3d 1, 3 (1st Cir. 1998) (internal quotation marks omitted); see also Gonzalez-Rodriguez, 777 F.3d at 40 n. 4, more recent Supreme Court cases have pointed out the difference between “a rule governing subject-matter jurisdiction and an inflexible claim-processing rule,” Eberhart v. United States, 546 U.S. 12, 13 (2005) (per curiam) (quoting Kontrick v. Ryan, 540 U.S. 443, 456 (2004)). In the latter instance, a failure to adhere to prescribed time limits does not foreclose jurisdiction, but may bar the tardy litigant from securing the relief sought if the opposing party properly objects. See Kontrick, 540 U.S. at 456 (noting that “a claim-processing rule, even if unalterable on a party‘s application, can nonetheless be forfeited if the party asserting the rule waits too long to raise the point“); see also Eberhart, 546 U.S. at 19.5
Rule 4(b) does not arise from a statutorily imposed time constraint,6 and we see no rationale for crossing the line the Supreme Court seemingly has drawn between statute-based time limits and those without legislative origin.7 Hence, we hold that Rule 4(b)‘s time limits are not “mandatory and jurisdictional” in the absence of a timely objection from the government. We thus must consider whether the government waived or forfeited its challenge to appellant‘s tardiness.
The government‘s motion to dismiss reflected a belief that it may object to a late filing under Rule 4(b) at any time, and, once it does, the court is obliged to enforce the rule. It therefore asserted that its motion—filed three months after this case was submitted for decision following oral argument—required us to dismiss Reyes‘s appeal. In so arguing, the government relied on the statement in Gonzalez-Rodriguez, 777 F.3d at 40 n. 4, that the time limits in Rule 4(b), “even if not jurisdictional, are mandatory when raised by the government.” In Gonzalez-Rodriguez, however, the government had contended in its original response brief that the court had no jurisdiction to consider the defendant‘s sentencing appeal. Here, by contrast, the government suggested in a footnote in its original brief that Reyes‘s appeal was timely because the fourteen-day clock for filing a notice of appeal did not begin to run until after the district court denied Reyes‘s motion for reconsideration. In pertinent part, the footnote states:
“[T]he Supreme Court has held that the timely filing of such a motion [for reconsideration] in a criminal action tolls the time for filing a notice of appeal and the time begins to run anew following disposition of the motion.” United States v. Vicaria, 963 F.2d 1412, 1413-14 (11th Cir. 1992) (citing United States v. Dieter, 429 U.S. 6, 8-9 (1976)); see also United States v. Ortiz, 741 F.3d 288, 292 n. 2 (1st Cir. 2014) (“motions for reconsideration in criminal cases are not specifically authorized either by statute or by rule“); United States v. Healy, 376 U.S. 75, 84 (1964). “A motion for reconsideration in a criminal case must be filed within the period of time allotted for filing a notice of appeal in order to extend the time for filing the notice of appeal.” See United States v. Russo, 760 F.2d 1229, 1230 (11th Cir. 1985).
Gov‘t Br. at 3 n.2.
The government attempted to characterize the footnote as something other than a concession of timely filing and appellate jurisdiction. Although the passage may not be an explicit concession, it is nearly so. The government sought to justify its acquiescence with the fact that Gonzalez-Rodriguez was decided after its brief was filed, insinuating that the prosecutors did not have reason before then to raise a timeliness objection. But the brief in Gonzalez-Rodriguez raising the jurisdictional argument was filed by the same United States Attorney‘s Office responsible for this case more than two months before it submitted the response brief that contains the footnote. The government did not explain why it could not have made the same time-bar argument here. Moreover, the panel‘s opinion in Gonzalez-Rodriguez simply pulled together pre-existing authorities. See, e.g., United States v. Dotz, 455 F.3d 644, 648 (6th Cir. 2006) (“In the sentencing context, there is simply no such thing as a ‘motion to reconsider’ an otherwise final sentence....“) (quoted in United States v. Ortiz, 741 F.3d 288, 292 n. 2 (1st Cir. 2014)). Plainly, as its argument in Gonzalez-Rodriguez demonstrates, the government had ample basis to challenge the jurisdiction for this appeal in its original response brief. Thus, we have here a situation that is fairly characterized as a waiver.
Moreover, even absent the jurisdictional footnote, the government‘s request for dismissal would have confronted the maxim that any issue not raised in a party‘s opening brief is forfeited. See, e.g., United States v. Tum, 707 F.3d 68, 72 n. 2 (1st Cir. 2013). The government cited no
Applying ordinary forfeiture principles in this context is consistent with the Supreme Court‘s assertion in Eberhart that “[t]hese claim-processing rules ... assure relief to a party properly raising them.” 546 U.S. at 19 (emphasis added). Further, in Kontrick, the Court endorsed the notion that “[t]ime bars ... generally must be raised in an answer or responsive pleading.” 540 U.S. at 458. Although the Court‘s reference was to trial court proceedings, the obligation to “timely assert[] the untimeliness” of a litigation adversary‘s conduct is equally applicable on appeal. Id. Hence, even if the government had not waived the timeliness issue, we would hold that the claim was forfeited because it was not raised in its opening brief.
II.
In assessing Reyes‘s challenge to his sentence in the conspiracy case, we draw the facts from his and his co-defendants’ change-of-plea and sentencing hearings, PSRs, and plea agreements. See United States v. Rivera-Gonzalez, 776 F.3d 45, 47 (1st Cir. 2015).9
A. Sentencing Overview
Count One of the indictment against Reyes and his numerous co-defendants alleged possession with the intent to distribute substantial quantities of various drugs—including heroin, crack cocaine, and cocaine—in a conspiracy that operated at four public housing projects in Bayamón at least from 2005 to 2010. See
The indictment divided the defendants into multiple groups: the Leaders (defendants ## 1-5), Managers/Drug Owners (defendants ## 6-14), Supplier (defendant # 15), Enforcers (defendants ## 16-17), Runners (defendants ## 18-34), Sellers (defendants ## 35-84), Lookouts (defendants ## 85-106), and Facilitators (defendants ## 107-110). Reyes, # 9, was in the second tier and designated a Manager/Drug Owner.10 The PSRs for the top defendants stated that, during the enterprise‘s five-year span, it was responsible for distributing approximately the following amounts of drugs: 210 kilograms of heroin, 485 kilograms of crack cocaine, 505 kilograms of cocaine, 2,000 kilograms of marijuana, and undetermined amounts of Percocet and Xanax pills.
Most of the high-level defendants pled guilty pursuant to non-binding plea agreements and were sentenced by the district court judge here. The plea agreements contained recommended sentences or sentencing ranges based in part on stipulated amounts of cocaine,11 with some recommendations contingent on the defendant‘s not-yet-determined Criminal History Category (“CHC“). Most of the agreements also included stipulations on whether a role-in-the-offense enhancement should be added to the Base Offense Level (“BOL“), and the extent of any such increase. The stipulated drug amounts, the sentences or sentencing ranges recommended by the government, and the sentences actually imposed for nine of the top ten defendants, including Reyes, are as follows:12
| Defendant | Stipulated Drug Amt. | Recommended Term | Count One Sentence |
|---|---|---|---|
| #1 José Colón de Jesús | 5-15 kilos | 180 months | 324 months |
| #2 Angel Colón de Jesús | 3.5-5 kilos | 168 months | 135 months |
| #3 Jimenez-Echevarria | 2-3.5 kilos | 108 months | 108 months |
| #4 Sevilla-Oyola | 2-3.5 kilos | unspecified | 240 months13 |
| #6 Adalberto Rivera Bermudez | 3.5-5 kilos | 135 months | 151 months |
| #7 Rafael Nazario-Pedroza | 2-3.5 kilos | 78 months | 78 months |
| #8 Sadid Medina-Rivera | 5-15 kilos14 | 151 months | 121 months |
| #9 Appellant | 2-3.5 kilos | 100 months | 360 months |
| #10 Luis Ramos-Oyola | 2-3.5 kilos | 78 months | 78 months |
Thus, as the chart reveals, Reyes‘s 360-month sentence is the longest of any of the defendants, including both the conspiracy‘s leader and a career offender, and his term exceeds most of the other sentences by wide margins. Also pertinent to this appeal are two facts applicable only to Reyes, Sevilla-Oyola and José Colón de Jesús—i.e., the three co-defendants with the longest sentences. First, the district court heard witness testimony at sentencing only for those three, relying in the remaining cases on the PSRs, the plea agreements, and the parties’ arguments. Second, those three defendants were implicated in notorious killings: the so-called “Pitufo Murder” and the “Pájaros Massacre.” Reyes and Colón de Jesús were acquitted in state court on charges stemming from the latter, in which a drug dealer, his two-year-old daughter, and another individual were killed in a barrage of shots in Toa Alta, Puerto Rico, in 2009. Sevilla-Oyola was identified by a cooperating witness as the shooter in the Pitufo incident, in which another co-conspirator under federal supervision (José Manuel Torres-Morales, known as “Pitufo“) was murdered in front of the federal courthouse in Hato Rey, Puerto Rico, in 2007. See Sevilla-Oyola, 770 F.3d at 5.
B. Reyes‘s Sentencing
1. Plea Agreement and PSR
As reflected in the chart above, Reyes‘s plea agreement stipulated that he was accountable for at least 2 but less than 3.5 kilograms of cocaine, which produced a BOL of 28. With a two-level enhancement because the drug trafficking occurred in a protected location, see U.S.S.G. § 2D1.2(a)(1), and a three-level reduction for acceptance of responsibility, see U.S.S.G. § 3E1.1, his proposed total offense level was 27. The government agreed to recommend a sentence of 87 months if Reyes‘s CHC was III or below, and if the CHC was higher, the government would recommend a sentence at the low end of the applicable guidelines range. No role enhancement was proposed. Because Reyes‘s CHC turned out to be IV, the Guidelines range consistent with the plea agreement was 100 to 125 months.
Reyes‘s PSR, however, calculated a substantially longer Guidelines sentence. Although the PSRs for most of the defendants listed in the chart above used the cocaine amounts stipulated in the plea
In a February 2012 order applicable to both Reyes and Colón de Jesús, prior to their sentencing hearings, the district court directed the government to produce evidence on the amount of drugs trafficked during the conspiracy and to secure testimony from three sources: (1) a “cooperating witness” to the Pitufo Murder, (2) “the principal witness” to the Pájaros Massacre, and (3) witnesses familiar with “the facts behind the extensive criminal activity that ended up dismissed in state court throughout the years.” The court advised the two defendants that it had obtained the full transcript of the Pájaros trial and that it was available for examination by the parties. The court also made available to those two defendants, along with Sevilla-Oyola, police and FBI reports about the Pitufo Murder that it had obtained from the United States Marshal. Subsequently, however, after an informal status conference with counsel for Colón de Jesús, the district court notified both defendants that it would not take the Pitufo Murder or Pájaros Massacre into account for their sentencings. The court stated that it would hear testimony only on “drug amount, dismissed criminal prosecutions and nature of the drug trafficking charge in referen[ce] to firearms and violence.”
2. The Hearing and Aftermath
At the outset of Reyes‘s sentencing hearing, held in May 2012, the district court noted that it was not bound by the plea agreement and observed that “the amount of drugs in this case is so huge, so huge that it makes it up to a certain point unacceptable to adopt the stipulation.” In response, defense counsel pointed out that the same judge had accepted the drug stipulations during prior sentencings of Defendants # 2 (Angel Colón de Jesús), # 3 (Jimenez-Echevarria), # 6 (Rivera Bermudez), and # 7 (Nazario-Pedroza). The court responded by noting that the conspiracy‘s leader had “relied a lot” on Reyes and that “he was also like a Lieutenant to number one.” The court further
Before the witness took the stand, however, the parties and the court discussed defense counsel‘s contention that the government‘s examination of the witness would be a breach of the plea agreement. After the objection was addressed,16 and before the witness testified, counsel again raised the differential treatment among defendants, prompting the following exchange:
COUNSEL: But then my question, Your Honor, that we have with these people that are numbers higher in the ranking of this Indictment—
COURT: It doesn‘t matter. The cases are different.
COUNSEL: The cases are the same, Your Honor.
COURT: Presentence Reports are different. Criminal records are different.
COUNSEL: Exactly, but then I go back, why is it, why is it that the Presentence Report for my client is different than probably the other ones? I wonder if the other ones received the same calculations as to the whole amount of the drugs, and not—than Mr. Reyes did? And I can only say, I can only understand or figure out that it might be because he was acquitted of the P[á]jaros massacre.
We can always say that we are not considering this, we are not considering that; but it‘s still there, because no one wants to be—
COURT: Absolutely, it‘s still there. Yes.
COUNSEL: It‘s still there. So that‘s why I wanted to place the Court in a position to understand that my client was the only one that presented an alibi defense [in the Pájaros case], and that alibi defense was not shady. It was good.
And then because that probably we—the Court and the Probation Office and the Government might have a different eye to my client, instead, and probably he would get there like the other ones that were already sentenced.
Defense counsel sought to provide the court with evidence substantiating Reyes‘s Pájaros alibi, but the court said it was “not going to go anymore into the P[á]jaros massacre,” noting that the crime “is a dead case for me.” The court then directed the government to call its witness, Carlos Burgos Rodriguez (“Burgos“), to elicit testimony on Reyes‘s “involvement with this particular brand of marijuana that we‘ve been talking about” and “his involvement with number one in the context of role.”
Burgos, a cooperating co-defendant who was a runner at the Virgilio Dávila Public Housing Project,17 testified that Reyes‘s “position there was to find the workers, to assign the shifts, to organize the runners, and to look out for the stash that was kept there, the drugs.” He reported that Reyes at one point received a commission from the sale of four drugs including “the Boston“—that “belonged” to Colón de Jesús, but that the profits from that brand of marijuana (i.e., the Boston Red Sox variety) were divided among five individuals after the death of Pitufo: Reyes, Sevilla-Oyola, Jimenez-Echevarria, Rodriguez-Rodriguez, and an individual whom Burgos identified as “Menovito” and added, “may he rest in peace.”
COUNSEL: Then, Your Honor, I would just renew my objection as to the other people, the other defendants that were sentenced prior to Mr. Reyes Santiago, who have administrator or supervision roles, and they were not attributed this amount of drugs as—and they were probably foreseeable to them, too. And that treatment—
COURT: I don‘t remember that being an issue in those cases. I don‘t remember—
COUNSEL: Because it was—
COURT:—ever having a situation like that in the other cases, how much were they responsible—
COUNSEL: It was not an issue, because the Court followed the Plea Agreement, did not bring any witness to testify as to the amount of drugs. So that‘s why. And probably the presentence report did not show that information. So that is basing my objection that there is a disparity [in] treatment as to Mr. Reyes Santiago and the other co-defendants in this case as—
Counsel again speculated that the different treatment occurred because the Pájaros Massacre “was still in the back of the mind of everyone.” The probation officer, who attended the hearing, disclaimed reliance on the Pájaros Massacre “to achieve the calculation of the drugs, and his participation in the conspiracy.”
As the discussion continued, defense counsel noted that Sevilla-Oyola was similarly situated to Reyes. The court responded that Sevilla-Oyola was serving a “hefty sentence” and, in addition, did not have the same role as Reyes. Counsel replied that Sevilla-Oyola‘s long sentence was attributable to his career offender status and observed that, in addition, Burgos had testified that Sevilla-Oyola “was in charge when the other ones were in jail.” The court again attempted to draw a distinction between the two defendants:
COURT: And I did not enhance his [Sevilla-Oyola‘s] drugs, because the record did not allow that—I don‘t think that I had to do it. There was plenty there to deal with objectively without getting into this kind of—but here you have a situation whereby there is big time drug dealing for a number of years here, and the stipulation—if the stipulation were 15 kilos, 30 kilos, or something of the sort, but two but not more than 3.5 kilos? That‘s the stipulation? Imagine.
Additional colloquy followed, in which the court noted its responsibility to evaluate plea agreements and its prerogative to reject drug amount stipulations. The court assured counsel it would not depart or vary from the Guidelines, but said it could not accept the stipulated drug amount and instead would sentence Reyes based on the PSR calculation. According-
Reyes filed a motion seeking reconsideration of the sentence, arguing that it was procedurally defective and substantively unreasonable. He again raised an objection to the disparity among co-defendants, which he attributed to his prosecution for the Pájaros Massacre. Reyes also asserted, inter alia, that the government had breached the plea agreement by eliciting Burgos‘s testimony, which was directed toward increasing his total offense level. In its response, the government emphasized that it stood behind the plea agreement and the parties’ stipulations, and it noted the court‘s explicit disclaimer of reliance on the Pájaros Massacre. The government did not address the disparity argument. The district court denied the motion, and this appeal followed.18
C. Discussion
Reyes asserts three errors that he claims require resentencing on the drug count: (1) the government breached the parties’ plea agreement by actively eliciting prejudicial testimony from Burgos while remaining silent on the disparity issue; (2) the district court abused its discretion by “act[ing] as a prosecutor” and demanding witness testimony to support a sentence higher than the term of imprisonment proposed in the plea agreement, Br. at 43; and (3) the court abused its discretion by treating Reyes uniquely among the top defendants in the charged conspiracy and rejecting the drug quantity stipulation in his plea agreement, a disparity Reyes’ attributes to “reprisal for his acquittal in the Pajáros massacre trial.” Br. at 36 (internal quotation marks omitted).
We address the government‘s compliance with the plea agreement in Section II. D below. Reyes‘s second contention—that the district court overstepped its role by requiring the government to present witness testimony—is easily dispatched. Reyes entered into a non-binding plea agreement under
We thus turn to Reyes‘s contention that his sentence was unreasonable, and must
1. Sentencing Disparity: Legal Principles
In fashioning an appropriate sentence, judges are directed by statute to consider “the need to avoid unwarranted sentencing disparities among defendants with similar records who have been found guilty of similar conduct.”
We have routinely rejected disparity claims, however, because complaining defendants typically fail to acknowledge material differences between their own circumstances and those of their more leniently punished confederates. To present “[a] well-founded claim of disparity,” a defendant must compare apples to apples, United States v. Mateo-Espejo, 426 F.3d 508, 514 (1st Cir. 2005), and the myriad factors that come into play at sentencing make it difficult to isolate “identically situated” co-defendants, Rivera-Gonzalez, 626 F.3d at 648 (internal quotation marks omitted). We have noted, for example, the permissible distinction between co-defendants who go to trial and those who plead guilty, see, e.g., United States v. Rodríguez-Lozada, 558 F.3d 29, 45 (1st Cir. 2009), between those who cooperate and those who do not, see United States v. Rossignol, 780 F.3d 475, 478 (1st Cir. 2015), and between those whose cooperation is “prompt and full” and those whose cooperation is “belated and grudging,” Mateo-Espejo, 426 F.3d at 514. We have pointed to various other facts that can undermine an assertion of unjustified disparity. See, e.g., Rivera-Gonzalez, 626 F.3d at 648 (noting that some of appellant‘s “co-defendants were first-time offenders, ... others were convicted of possessing a smaller quantity of drugs [,][s]till others received point reductions for the minor role that they played in the offense“). Nonetheless, although “our general rule of thumb is that a defendant is not entitled to a lighter sentence merely because his co-defendants received lighter sentences,” there may be “reason for concern” if “two identically situated defendants receive different sentences from the same judge.” Id. (internal quotation marks omitted).
2. Standard of Review
Sentencing challenges often include both a complaint of procedural error and an assertion that the sentence imposed is substantively unreasonable. Rivera-Gonzalez, 626 F.3d at 646. Where both types of objections are made, we ordinarily will consider first “whether the district court committed any procedural missteps
Reyes asserts that the disparity between his sentence and the sentences of his co-defendants reflects both procedural and substantive error. Most of his contentions target procedural flaws. He argues that the district court relied on improper facts (i.e., the Pájaros Massacre) when it rejected the stipulations in his plea agreement, see id. at 646 n. 9; failed to adequately explain why he should be held responsible for the distribution of substantially more drugs than higher-level members of the conspiracy, see id.; and neglected its statutory obligation to avoid unwarranted disparity among similarly situated defendants, see, e.g., United States v, Flores-Machicote, 706 F.3d 16, 24 (1st Cir. 2013) (citing
out any justifiable rationale for the greater severity. Thus, because Reyes‘s procedural concerns can be captured in our discussion of substantive reasonableness, we move directly to consider whether “the court has provided a plausible explanation, and the overall result is defensible.” United States v. Torres-Landrúa, 783 F.3d 58, 68 (1st Cir. 2015) (internal quotation marks omitted).19
3. The Reasonableness of Reyes‘s Sentence
To briefly recap the disparity of which Reyes complains: he was sentenced to a term of 360 months on the drug count based on a substantially greater drug quantity than other similarly situated members of the conspiracy,20 producing a longer sentence than even the conspiracy‘s chieftain (324 months) and the one high-level co-defendant who was classified as a career offender (240 months). Reyes does not, and could not, argue that his sentence would be unlawful in all circumstances. Even the limited quantity of cocaine for which he accepted responsibility (2 to 3.5 kilograms) exposed him by statute to a term of imprisonment up to 40 years. See
Reyes argues, however, that his personal background, criminal history, and involvement in the charged conspiracy do
Without question, Burgos‘s testimony confirms that Reyes was a high-level member of the conspiracy. Burgos identified Reyes as a manager at the Virgilio Dávila Public Housing Project (finding workers, assigning shifts, organizing runners), and, as the district court noted at the hearing, the evidence showed that Reyes “acted as one of the right hands” of Colón de Jesús. Indeed, the district court could reasonably infer that Reyes‘s position in the conspiracy‘s hierarchy was higher than suggested by his # 9 ranking in the indictment. Of the five individuals whom Burgos said received profits from the Boston Red Sox marijuana, Reyes was the only one listed in the indictment‘s second tier—i.e., an alleged Manager/Drug Owner—rather than in the Leader group.
Nonetheless, the record does not show that Reyes played a uniquely prominent role in the conspiracy such that, in calculating offense levels, there was a factual basis for holding only him accountable for the full quantity of drugs allegedly distributed by the conspiracy. As defense counsel emphasized, the district court heard details about Reyes‘s conduct because it insisted that the government produce a witness at his sentencing hearing—a pro-cedure the court followed only with Reyes and the two other defendants who also had been implicated in the Pitufo murder or the Pájaros Massacre. The court did not solicit comparable information about the responsibilities of the five other top defendants listed in the chart above. Although the conspiracy operated at four housing projects, Burgos‘s testimony placed Reyes at the helm of only one, making it likely that others played similar roles at other locations. Indeed, Burgos testified that Wilfredo Rodriguez-Rodriguez (# 5, who has yet to be sentenced), was “in charge of the crack” and the leader at the Brisas Housing Project. Reyes‘s PSR identifies a dozen other defendants who were named as owners of particular types of cocaine and marijuana, including two who were referred to as leaders at the Falín Torrech and Las Gardenias Public Housing Projects.
Notably, the court‘s concern about the stipulated drug quantities was not limited to Reyes‘s plea agreement. At Rivera-Bermudez‘s sentencing, for example, the court observed that it had “a number of issues with the gradation ... of several defendants in this case.” Elaborating, the court stated:
I do think that the plea negotiations resulted in a very beneficial relevant conduct stipulation, which in some of these cases I may not accept, and in some I will, and I have....
... [I]n this case, I am accepting at least 3.5 kilos but less than five kilos of cocaine, with the understanding that I do think that it would have been very, very, very, very, easy to—for this to be a lot, lot higher had this case been tried. But that‘s fine. Let‘s leave it at that.
He definitely was a leader. What I‘m going to do is, he had a heroin and cocaine drug point. He accepted being a leader, but even if he didn‘t accept
being a leader, he was a leader. What I am going to do ..., rather than use four levels, I‘m going to use three levels for that. More than anything else, not because four is not the number, but as an act of good faith trying to figure out a way to make some sense to the plea bargaining process.21
The court similarly accepted the amount stipulated for Sevilla-Oyola, despite misgivings. The court explained:
The conspiracy to possess, even though he was a drug point owner, gave him in the context of the plea negotiations a very, very, very beneficial stipulation regarding relevant conduct. He pledged with a recommendation that I accept at least two kilos but less than 3.5 kilos of cocaine.... And when I took his plea, a reader of the plea colloquy must clearly see that I was kind of puzzled, a little bit concerned with the stipulation, but that‘s the stipulation. And the Government is bound by it.
And other than the testimony of Carlos Burgos in one of the sentencing hearings that he mentioned a little bit more drug, perhaps nine kilos or something of the sort, the truth of the matter is I don‘t have anything that I can put my finger on other than logic and inference as to how much drug there is. So I have to go by the stipulation, at least two kilos, but less than 3.5 kilos of cocaine; ... but with the clear understanding, and I will say it for the record, that I have no doubt in my mind that there was a lot more drug attributable to him than what he was able to stipu-
late, because that‘s something that is so obvious from the facts of this case. But, anyway, let‘s go with at least two kilos, less than 3.5 kilos.
Meanwhile, for two of the highest ranked defendants, the court accepted the stipulations with little comment. In a short sentencing proceeding for Angel Colón de Jesús (# 2), the court made the following remarks about drug quantity:
When you go to the drug counts, and due to the stipulation that appears in the record regarding relevant conduct which we‘re willing to accept for purposes of the discussion, I know there‘s a lot more drug than this involved, but in this case, I am willing to say I‘ll take 3.5 but less than five kilos of cocaine.
In an even shorter proceeding held to sentence Jimenez-Echevarria (# 3), the court addressed the issue as follows:
This case involves a huge conspiracy in a number of housing projects in Bayam[ó]n involving at least four of these projects that have been no man‘s land in reference to drugs for more than at least since in the ‘90s. Early ‘90s, we already were having cases from Virgilio D[á]vila, major cases involving Virgilio D[á]vila.
Anyway, he got a stipulation, which I will honor in this case, not necessarily in every case, for at least two but not more than 3.5 kilograms of cocaine; distribution within one thousand feet of a protected location; use of and carrying firearms in furtherance of the drug crime.
I think that the problem is that when you are dealing with cases of this magnitude, and you have an Indictment that calls in 110 people, you are dealing with an unmanageable case, an unmanageable situation.
And of course when you are dealing with that, and you have also in the docket of this Court many, many, many cases of that same nature going on at the same time, not counting the death penalty cases and all, it‘s impossible, impossible to try them all. Therefore, what happens is that in order to get rid of the cases, people involved in the process, in the best of faith, in the best of faith, try to find solutions. They stipulate amounts that are palatable, that are acceptable to the people who are about to take the responsibility.
The court concluded, however, that it could not accept the stipulated amount—5 to 15 kilos of cocaine—in light of Colón de Jesús‘s position as head of the entire operation, though it refrained from the most severe punishment:
I‘m going to be mindful of the fact that I never counted the drugs myself. I‘m mindful of the fact that I sentenced other people in a particular way. I am mindful of the fact that he was the lead-er, organizer, and in charge of this, the chairman of the board as I called it before. And I could use easily the top end of the guidelines in this case, the lower end of the guidelines in this case, but I cannot honestly use the stipulation.
Using the highest BOL (38) associated with drug quantities, see supra n.11, the court calculated a sentencing range of 324 to 405 months and initially announced a 360-month term for Colón de Jesús on Count One. His attorney pointed out that even the low end of the range, when combined with the mandatory five years on Count Two, produced a sentence 15 years or more longer than anticipated by the plea agreement (i.e., a sentence totaling 32 years, compared to “an expectation between 15 and 20“)—a difference she said was far greater than typical when a sentencing judge rejects a drug trafficking plea deal. The court then agreed to reduce the term on Count One to 324 months.
We think it evident from these excerpts that the court‘s attitude toward Reyes and his plea agreement—and particularly the stipulated drug amount—was decidedly different from its approach toward most, if not all, of the other high-level defendants. In multiple instances, the court accepted the stipulation without dwelling on it. On two occasions, it accepted the stipulation after observing that it had no independent knowledge of the actual drug amount. Even in selecting a sentence for Colón de Jesús, the court was “mindful of the fact that [it] never counted the drugs myself” and “mindful of the fact that [it] sentenced other people in a particular way.”22
To be sure, there are significant differences in criminal histories among the codefendants. Reyes‘s PSR calculated that he was in CHC IV based on two prior convictions and his violation of supervised release. Most of the others had less substantial criminal backgrounds. The Probation Office placed Nazario-Pedroza (# 7), Medina-Rivera (# 8), Ramos-Oyola (# 10), and Jose Colón de Jesús in CHC I, and calculated a CHC of II for Jimenez-Echevarria (# 3) and Angel Colón de Jesús (# 2). On the other hand, the PSR for Rivera-Bermudez (# 6) noted three prior convictions, two of which involved possession of heroin and cocaine, yielding the same CHC as Reyes, IV.23
These differences in criminal history, however, are reflected in the Guidelines ranges apart from the BOL determined by drug quantity. The Guidelines Sentencing Table sets out six possible sentencing ranges for each offense level, depending upon the defendant‘s CHC. See U.S.S.G. Ch. 5 Pt. A. Offense level 38, for example, produces a sentencing range of 235-293 months in CHC I and a range of 360 months to life in both CHC V and CHC VI. Indeed, Rivera-Bermudez‘s sentence—151 months—was the longest imposed on the nine co-defendants in the chart except for Reyes and the two defendants with unique circumstances (i.e., the top position in the conspiracy or career offender status), reflecting his higher CHC. If Reyes had been held responsible for 3.5 to 5 kilograms of cocaine—the largest amount used for most of the codefendants—his BOL would have been 30 instead of 38 and, with the adjustments applied by the court, his total offense level would have been 32 instead of 40. Using his CHC of IV, his Guidelines sentencing range would have been 168 to 210 months instead of 360 months to life. If the court had used 2 to 3.5 kilograms as the applicable drug amount—the quantity the government stipulated for Reyes—his sentencing range would have been 135 to 168 months.24 Even if Reyes had been held responsible for 5 to 15 kilograms—the quantity the government stipulated for Jose Colón de Jesús—his sentencing range would have been only 210 to 262 months.
In sum, we find no rationale articulated by the court, and supported by the record, that justifies the uniquely harsh
approach to drug quantity taken by the district court in sentencing Reyes. As discussed above, we cannot conclude, based on Burgos‘s account, that Reyes played a significantly larger role in the drug trafficking than other high-level defendants. To the contrary, Burgos‘s testimony suggests that others were equally culpable. Moreover, it is striking that, like his two co-defendants who also received relatively long terms of imprisonment, Reyes was accused of participating in a notorious violent crime. Although the court eventually decided not to factor the murders into the defendants’ sentences for the drug conspiracy, Reyes‘s prosecution for the Pajáros Massacre appears to have been a significant factor in the court‘s decision to hear testimony about his role and the quantity of drugs foreseeable to him. Indeed, when defense counsel noted that the incident is “still there” despite assertions that it would not be considered, the district court acknowledged, “Absolutely, it‘s still there.” See supra Section II.B.2. It thus appears that Reyes‘s disparate sentence may be indirectly traceable to events the court said it was not taking into account, resulting in a conspicuous and facially unjustified disparity between his sentence and those of co-defendants with “comparable degrees of culpability.” Martin, 520 F.3d at 94.This case thus presents the unusual circumstance of a sentence that is substantively unreasonable and, hence, an abuse of discretion, because of its substantial disparity with the sentences given to co-defendants and the absence of any identified, supportable basis for the inconsistency. See Reverol-Rivera, 778 F.3d at 366 (noting that a sentence may be “substantively unreasonable because of the disparity with the sentence given to a co-defendant“). This is not a matter of an incomplete explanation by the court. With respect to drug quantity, the record does not support the comparatively harsh approach taken toward Reyes by the same judge who sentenced the other high-ranking members of the conspiracy. The disparity is particularly pronounced and detectable here because of the numerous co-defendants who entered into similar plea agreements with the government.
Our colleague agrees that a resentencing is necessary, but he believes the district court should be given another opportunity to provide a supportable rationale for the disparate treatment of Reyes. His view is that the court‘s explanation for the disparity is inadequate. But the problem in this case is not the lack of explanation for the court‘s sentencing decision or the lack of clarity of its reasoning. In such cases, we do remand to allow the district court to provide the missing explanation. See United States v. Gilman, 478 F.3d 440, 446-47 (1st Cir. 2007) (noting that the appeals court may remand “to provide the district court an opportunity to explain its reasoning at resentencing” if the expressed rationale was “less-than-explicit” or “a court has provided no explanation at the sentencing hearing” (citing cases)).
Here, however, the court‘s rationale is clear: because Reyes was closely tied to Colón de Jesus—i.e., “like a Lieutenant to number one“—he should be treated like him with respect to drug quantity. The problem, instead, is the lack of record support for the court‘s finding that Reyes played a larger role in the conspiracy as a manager at the Virgilio Dávila Public Housing Project than the other high-level defendants played as leaders, owners, or managers at other locations. Although Reyes happened to work at the same housing project where Colón de Jesus owned the drugs, that proximity alone cannot justify attributing to Reyes, uniquely among defendants with similar roles in the conspiracy, the quantity of drugs calculated in
We therefore conclude that it is necessary to vacate Reyes‘s 360-month sentence on Count One and remand for resentencing so that Reyes‘s sentence can be appropriately aligned with those of his co-defendants.26
D. Breach of the Plea Agreement
[REDACTED] Reyes argues that the government breached his plea agreement when it: (1) went beyond brief and neutral questioning of Burgos to elicit testimony that would support a much higher BOL, (2) informed the court it had evidence to support a higher sentence, (3) objected to defense counsel‘s questions during cross-examination, (4) failed to address the disparity issue, and (5) did not oppose sentencing enhancements that were not contemplated by the parties. Where, as here, the defendant properly objects to the government‘s conduct in 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).
We have long recognized the competing responsibilities that confront the government at sentencing when it has entered into a plea deal with the defendant. “[T]he prosecution‘s solemn duty to uphold forthrightly its end of any bargain that it makes in a plea agreement” must be balanced against “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) (citation omitted); see also United States v. Miranda-Martinez, 790 F.3d 270, 275 (1st Cir. 2015) (referencing the “equilibrium [that must be] struck by these competing tugs“). In this case, however, we need not decide whether the government properly calibrated its “obligation to furnish relevant information” with its “corollary obligation to honor commitments made under a plea agreement” because we have determined that Reyes‘s sentence must be vacated for another reason. Saxena, 229 F.3d at 6. We therefore do not
First, the government had an obligation to address the disparity issue, which it did not do either at the sentencing hearing or in its response to the defendant‘s motion for reconsideration. As described above, defense counsel repeatedly raised the discrepancy between the court‘s handling of drug quantity for Reyes and its treatment of drug quantity for other high-level defendants. Although the prosecutor reaffirmed the government‘s commitment to the plea deal multiple times during the colloquy, the government neither explained why it believed a low quantity stipulation was appropriate for Reyes despite his high rank in the indictment nor acknowledged that Reyes‘s sentence significantly diverged from those of other top-ranked defendants.27 By its silence, the government almost certainly reinforced the court‘s view that the record provided a basis for
Second, while the government cannot be faulted for complying with the district court‘s demand that it produce a witness at the sentencing hearing, it went beyond its obligation to the court by objecting when defense counsel, seeking to impeach Burgos‘s credibility, questioned him about inconsistencies between his testimony at the hearing and his testimony before the grand jury. The government‘s “duty to bring all facts relevant to sentencing to the judge‘s attention,” Gonczy, 357 F.3d at 53, does not come with license to impede defense counsel‘s effort to persuade the court to adopt the parties’ agreed-upon sentencing recommendation. Indeed, the government in effect acknowledged at argument that silence in response to the cross-examination would have been more consistent with the government‘s duty to support the plea agreement,29 and we agree.30
We thus expect that, on remand, the government will be more circumspect and will adhere as strictly as possible to its obligation to support the terms of the plea agreement. As we have emphasized in the past, “a defendant entering into a plea agreement with the government undertakes to waive certain fundamental constitutional rights; because of that waiver, the government is required to meet the most meticulous standards of both promise and performance.” Id. (internal quotation marks omitted).
III.
A. Revocation Sentence: Background
In September 2000, based on a guilty plea he entered in an earlier drug conspiracy case, Reyes was sentenced to 60 months imprisonment followed by four years of supervised release. He was released from custody in March 2004, and twice thereafter violated the conditions of his release. Each violation resulted in revocation of supervised release and a term of imprisonment: six months the first time and nine months the second time. After completing the required periods of incarceration, Reyes again was released from federal custody and placed on supervised release in February 2009.
In May 2009, Reyes‘s probation officer alerted the district court to new violations of his supervised release requirements and also reported Reyes‘s arrest by local authorities in connection with the Pájaros Massacre. In May 2010, following Reyes‘s acquittal in the Massacre trial, he was immediately taken into federal custody for revocation proceedings for the latest supervised release violations. A few weeks later—in July 2010—Reyes was indicted in
The combined sentencing hearing took place in May 2012. In addition to the 420-month term of imprisonment imposed in the more recent drug conspiracy case (i.e., 360 months on Count One and 60 months on Count Two), the district court imposed a 24-month, consecutive sentence for Reyes‘s 2009 violation of conditions. The court concluded that the Guidelines range for the type of violations Reyes committed was 24 to 30 months, and it chose the lower end of that range. In imposing the 24-month term, the court explained that it was crediting Reyes—as his attorney had requested—for the year he spent in jail leading up to the Pájaros Massacre trial. Reyes subsequently argued to the district court, in an unsuccessful motion for reconsideration, that the 24-month sentence is unlawful because it exceeds the applicable statutory cap governing penalties for violations of supervised release conditions.
On appeal, Reyes reiterates his contention that, under the applicable version of
B. Discussion
Notwithstanding the government‘s contrary view, the legal parameters of Reyes‘s revocation sentence are clear. Reyes is correct that, under well-established law, he must be sentenced based on the statutory limits in effect at the time of his original sentencing proceeding in September 2000. See United States v. Tapia-Escalera, 356 F.3d 181, 188 (1st Cir. 2004) (citing Johnson v. United States, 529 U.S. 694, 701-02 (2000), where the Supreme Court noted that, “[s]ince postrevocation penalties relate to the original offense,” imposing sanctions retroactively would raise an ex post facto issue); see also, e.g., United States v. Thomas, 600 F.3d 387, 389 (5th Cir. 2010) (per curiam). In addition, we have concluded, in accord with other circuits, that
We offer an observation concerning the resentencing that will need to occur for the supervised release violation. We are uncertain how the district court determined that the applicable Guidelines range was 24 to 30 months. The court labeled Reyes‘s conduct as a Grade A violation based on criteria set forth in
Reyes was on supervised release for a Class B felony, and it is undisputed that his CHC at the applicable time was I. Under
IV.
To recap our holdings:
Federal Rule of Appellate Procedure 4(b) is a claims-processing rule whose time limitations may be waived or forfeited if the opposing party fails to challenge appellate jurisdiction in a timely manner. Here, the government both waived and forfeited the timeliness issue.- Reyes‘s 360-month sentence on Count One of the 110-defendant drug conspiracy indictment must be vacated because the record shows no justification for the wide disparity between Reyes‘s sen-
tence and those of similarly situated co-defendants insofar as the gap is attributable to the substantially higher drug quantity for which Reyes was held responsible. - Reyes‘s 24-month sentence for violating conditions of supervised release must be vacated because, when aggregated with his prior sentences for violating the same conditions, it exceeds the applicable statutory maximum of 36 months.
Although both of Reyes‘s sentences must be corrected, we note that the district court attempted to take a moderate approach, in certain respects, in imposing those punishments. As recounted above, the court chose a sentence at the low end of the Guidelines range it deemed appropriate on the drug conspiracy charge, and it gave Reyes credit for his time in state custody when sentencing him for violating his conditions of release. In addition, the court decided against imposing another period of supervised release to follow the latter, consecutive term of imprisonment. Hence, despite flaws in its assumptions about the facts and the law, the court manifested an intention to “impose ... sentence[s] sufficient, but not greater than necessary, to comply with the purposes” of sentencing identified by Congress.
Accordingly, we vacate both of the sentences challenged on appeal and remand for further proceedings consistent with this opinion.
BARRON, Circuit Judge, concurring in part and dissenting in part.
I fully join the majority‘s persuasive analysis save for one part, regarding sentencing, where I see things somewhat differently.
I.
The defendant, Reyes, contends that he has been treated disparately in sentencing from his co-conspirators for no good reason. And the majority is understandably troubled—as am I—that he was.
Reyes points to the fact that a number of his co-conspirators stipulated in their plea agreements—as he did in his—to a relatively small amount of drugs. But while those co-conspirators were sentenced on the basis of those stipulated quantities, the District Court refused to accept Reyes‘s stipulation.
As a result, the District Court used a dramatically higher drug quantity in calculating Reyes‘s base offense level under the Sentencing Guidelines. The District Court set Reyes‘s base offense level at 38 due to the higher drug quantity it found should be attributed to him. That level of 38 was much higher than that assigned to some number of his co-conspirators, who received base offense levels of 28 or 30 in consequence of the low drug quantity amounts to which they had stipulated in their plea agreements and which the District Court had accepted in calculating their guidelines ranges and thus in determining their sentences.
Moreover, by assigning this higher base offense level to Reyes (due to the higher drug quantity attributed to him), the sentencing judge assigned a much higher guidelines calculation to Reyes. And, in consequence, Reyes received a sentence on the drug conspiracy count of 360 months, which was far greater than his co-conspirators’ sentences (ranging from 108 months to 151 months).33 Even the co-conspirator
But while I agree with the majority that we should vacate and remand the sentence, the complexities underlying the kind of follow a somewhat different analysis in getting to that result. And the consequence of this different analysis is that I would allow the District Court more discretion on remand to explain the basis for this sentence than the majority seems willing to allow.
II.
As the majority recognizes, the mere fact that a defendant is sentenced differently from his co-conspirators is not a reason to conclude that he has been sentenced impermissibly. As we have explained many times before, the sentencing statute aims primarily at addressing nationwide disparities, not ensuring equal treatment among co-conspirators. See, e.g., United States v. Reverol-Rivera, 778 F.3d 363, 366 (1st Cir. 2015). And here there is no question that the sentence imposed on this defendant is in line with the sentences received by defendants who engage in the same conduct in which he was found to have engaged. After all, he was sentenced within a guidelines range that was itself predicated on a base offense level pegged to the quantity of drugs involved in the conspiracy for which he was responsible. And the interest in uniformity supports keying the base offense level in a drug conspiracy to drug quantity. Such keying avoids the disparity in treatment that could arise if the base offense levels—and thus the resulting recommended sentencing ranges—were not so keyed.
But the fact that the sentencing statute aims primarily at addressing national disparities does not mean that the statute aims exclusively at addressing that concern—a point we have also made numerous times. See, e.g., id. And so a sentencing disparity can arise from the disparate sentences handed out to co-conspirators—even if all received sentences that were in line with the guidelines.
The question, then, is whether there was such a disparity here, given the harshness of Reyes‘s sentence relative to those that some co-conspirators received. And that in turn raises the question whether there is something wrong with treating Reyes as having known about such a large drug quantity when others, also high up in the conspiracy, were sentenced as if they did not have such knowledge.
The simple answer is that there is certainly nothing wrong with this outcome if Reyes is differently situated in some relevant way from those co-conspirators whose stipulations as to drug quantity were accepted. See id. (“[D]ifferences in culpability can justify disparate sentences among co-defendants....“). But, unfortunately, the answer is not in fact so simple
The sentencing statute itself offers little guidance. See
To be sure, guidelines calculations that are wrong can lead to sentencing errors, precisely because the sentence may be imposed only after a correct guidelines calculation is made. See Gall v. United States, 552 U.S. 38, 51 (2007). But the sentencing range recommended by the guidelines is not binding, and
Similarly, it is clear that factual findings on which guidelines calculations rest may be reviewed for clear error. See United States v. Gracie, 731 F.3d 1, 2 (1st Cir. 2013). And so factual findings that are clearly wrong—when challenged by the defendant—cannot support a sentence. But the defendant here does not claim that the District Court clearly erred in finding him responsible for the entire quantity of drugs in the conspiracy. (Perhaps he could have made such a claim, though I doubt it would have been persuasive, based on the evidence on the record of his involvement in this conspiracy and the quantity of drugs sold by the conspiracy.) Instead of challenging the factual basis for finding that he, in fact, was responsible for such a large amount of drugs, the defendant contends only that even though such a finding of fact would not be clearly erroneous, it was error for the District Court to attribute that quantity to him when the District Court could have accurately attributed that same quantity to the other conspirators but did not do so.
Precedent also offers little guidance. The truth is that—for as many times as we have said that identically situated co-conspirators may not be sentenced disparately—I have yet to find a case before this one in which we have actually concluded that co-conspirators were identical yet were disparately sentenced.34 Nor have I found a case suggesting with any clarity how to go about determining what makes co-conspirators identical or distinguishable in a case with facts meaningfully analogous to ours. And a search beyond our own Circuit turns up nothing useful either. So while there are cases (scores really) noting how defendants may be different—for ex-
To be sure, I do not doubt that a clear disparity would exist if two people with identical roles in the same conspiracy and with identical offense levels and identical criminal histories—and thus identical guideline sentencing ranges—were sentenced by the same judge to different terms of imprisonment without an adequate justification. See United States v. Saez, 444 F.3d 15, 19 (1st Cir. 2006). But that is not our case.
Reyes received the longest sentence of any of the conspirators. But he had a higher criminal history than most other conspirators. We thus deal here with the very different question of how to administer the calculation of the guideline sentencing range itself on the basis of what seems to be a claim of disparate fact-finding leading to disparate guidelines’ calculations of base offense levels. And that is the question for which guidance is wanting.
Reyes does argue that, on disparity grounds and disparity grounds alone, the District Court should have held him to the stipulated drug quantity. And there is an intuitive appeal to that contention. Why should co-conspirators with roughly equivalent knowledge of the amount of drugs involved in the conspiracy be sentenced as if they in fact had different levels of awareness?
But I am nonetheless wary of mandating a rigid rule of equal treatment in determining whether stipulated drug quantities should be accepted. For although I recognize drug quantity determinations do influence sentences indirectly, insofar as guideline sentencing ranges influence final sentences, I am concerned about the risks of injecting a too-rigid disparity analysis into our sentencing review in cases of this sort, for fear of how it might affect the process of making and accepting stipulated quantity determinations.
As we have recognized, and as the record in this case reveals, guilty pleas to stipulated drug quantities serve a number of practical purposes even if they do not reflect the truth. So, too, do decisions to allow such stipulations to stand even when they are accurate only in the sense that the defendant certainly was responsible for at least that quantity (though the stipulated amounts are otherwise, sometimes wildly, understated). See United States v. Yeje-Cabrera, 430 F.3d 1, 23 (1st Cir. 2005) (“Fact bargaining may arise when there are different views of the facts, counsels’
That is in part why we have said there is no constitutional problem with the prosecutor and the defendant bargaining over factual stipulations as to drug quantity. See United States v. Hall, 557 F.3d 15, 21 (1st Cir. 2009). And those practical considerations also help to explain why there is also not a problem with a judge choosing to accept the bargain—at least when it does not result in a defendant taking responsibility for more than he did—even if a more-searching inquiry would show that the stipulation was generous. Simply put, fact bargaining is central to the plea bargaining system, as it provides an incentive to plea rather than go to trial, and a means of potentially reducing the harshness of the punishment that otherwise might be imposed. See Yeje-Cabrera, 430 F.3d at 25.
In shaping the scope of our review of disparity-based challenges to a sentencing judge‘s decision to accept or reject factual stipulations in plea agreements that are favorable to defendants, it seems to me we should be equally sensitive to these practical considerations. Importing a rigid, substantive disparity analysis into our review of a district court‘s decision to reject a bargained-for fact, I worry, may undermine the foundations on which the fact-bargaining system operates. For a district court with a strong suspicion that the real weight of drugs in a conspiracy is far higher than the factual stipulations reveal might then be in a curious position. The district court might feel the need to reject stipulations it would otherwise accept in order to maintain its discretion to impute the full weight to particular co-conspirators to be sentenced in the future. And, in turn, those involved in the bargaining might have their incentives altered, too.
Were that the consequence, I am dubious that there would be much virtue in our having altered the calculus for sentencing judges in that way. It may be that a district court, considering the quality of cooperation of the various defendants, their particular roles in the conspiracy, and their past criminal histories, is trying to settle on individualized quantity determinations for each defendant that reflects a reasonable assessment of the individualized sentence that each warrants, given the characteristics of the defendant that the sentencing statute instructs the district court to consider. And, in the process of trying to arrive at those individualized sentences, the district court may choose, therefore, to accept certain stipulations and reject others not for no reason, but instead with an eye on the ultimate sentencing range it considers to be appropriate for each defendant in light of the considerations that the sentencing statute directs the sentencing judge to consider and that the guidelines do not otherwise seem to prohibit.
So, for example, a district court might choose to accept a low stipulated drug quantity for a conspirator with a high criminal history category. The judge might figure that the criminal history category, paired with the offense level dictated by the lower quantity, will effectively bring the defendant‘s guidelines sentencing range in line with what—all things considered, including levels of cooperation—it should be under the statute. And thus, the district court might choose not to probe further into what the true amount was and accept the lower amount contained in the plea agreement. By contrast, the district court might choose to look past the stipulated amount for another conspirator whose role seemed greater but whose criminal history category was less, figuring that such an approach will, again, best capture the sentence that is appropriate for that defen-
It is far from clear to me that a district court may not take account of such holistic sentencing judgments—when rooted in the statutory considerations set forth in
I doubt we improve things by reducing the discretion of already-restricted sentencing judges (given mandatory minimum sentences) through an approach to disparity analysis that is not sensitive to these realities. Such an approach could have the perverse effect of making a plenty-punitive criminal justice system yet more punitive still.
Having said all that, I do not read the majority to be imposing the kind of rigid approach that most worries me. This case is fact-bound, and the majority‘s analysis is, appropriately, dependent on these particular facts as well. And the facts here are troubling. Nonetheless, rather than characterizing the District Court‘s sentence as substantively unreasonable—that is, inherently unjustifiable—as the majority does, I prefer to analyze this case through the lens of procedural reasonableness and inadequate explanations. Doing so, I believe, poses the least risk of unintended consequences while still fulfilling our obligation to ensure that a sentence meets the “the basic requirement of rationality[.]” Saez, 444 F.3d at 19.
Of course, as the majority rightly notes, the distinction between matters of substance and procedure is less than clear in this context—and, at the margins, may not matter. But it also might, particularly with respect to the scope of remand. And here I believe that is the case. Thus, in my view, the reason we must vacate and remand is only that the District Court failed to provide an adequate explanation for its conclusion that Reyes was not identically situated to those for whom drug-quantity stipulations were accepted. I would not go so far as to say (as I read my colleagues to conclude) that no such explanation is possible on this record, and thus that on remand the District Court has no choice but to sentence this defendant on the basis of a quantity that is closely aligned with the quantities on which his co-conspirators were sentenced. In my view, my approach—by treading more lightly—best accounts for the lurking complexities that inhere in this type of disparity-based challenge.
III.
Still, I do agree with the majority that the sentence must be vacated and remanded. And so I need to say more about the nature of the disparity concern that I believe must be redressed on remand, which, in turn, requires that I describe in more detail both what I understand to be the District Court‘s explanation for the sentence that it chose and why I do not believe that explanation is adequate.
The chain of logic undergirding the District Court‘s sentencing in this case—as best I can tell—seems to go like this. There was a large conspiracy with many members, and they played different roles. There was an overall leader. There were
The overall leader of the conspiracy, José Colon de Jesus, like Reyes, stipulated to a very low drug quantity in his plea agreement. But the District Court thought that number—which was dramatically at odds with the figure contained in the presentence report—was risible. As I read the record, the District Court quite plausibly explained that Colón de Jesus was, in effect, the “Chairman of the Board” and, like the head of a large franchising corporation, “relicensed ... housing projects to people who were going to be the drug point owners of those ... different housing projects, [and] would in turn be part of his organization.” For that reason, the District Court thought there was no way Colón de Jesus was not aware of the drug quantities involved in the conspiracy as a whole, which were plainly much larger than the stipulation reflected.
To be sure, other participants in the conspiracy plainly knew more than the stipulated quantities in their plea agreements reflected, as the District Court indicated while sentencing those co-conspirators. And some of those co-conspirators also actually ran particular housing project franchises. But the District Court concluded that Colón de Jesus was different from the other drug point leaders in his responsibility for the whole conspiracy from its founding.
I think that distinction suffices to make Colón de Jesus—or No. 1 as he is known—distinct from the other members of the conspiracy, such that he could fairly be charged with a quantity much higher than his stipulation reflected and much higher than the stipulation reflected in his confederates’ plea agreements.36 I reach that conclusion notwithstanding that these co-conspirator stipulations were by no means accurate accounts of what those individuals actually knew. And I reach this conclusion notwithstanding that those stipulations likely also could have been rejected for far higher quantities, perhaps including quantities yielding the highest base offense level for a drug conspiracy charge. Given the realities of fact-bargaining over drug quantities, I would not say that a sentencing judge lacks the discretion to ignore a stipulation for someone like Colón de Jesus, given his different role in the conspiracy, even though it might be hard to say that, in fact, his confederates did not also know the conspiracy involved drug amounts sufficient to raise their base offense level to be as high as his.
Since in my view the District Court had a basis for holding Colón de Jesus responsible, in calculating his base offense level
In sentencing Reyes, the District Court was plainly concerned initially about Reyes‘s potential involvement in other murders unrelated to this conspiracy, as he was concerned about the involvement of Colón de Jesus in the murders as well. But the District Court eventually made it plain in the face of objections to considering those murders that it was not basing Reyes‘s sentence on the alleged murders in any respect. Instead, the sentence would rest in significant part on Reyes‘s role in this conspiracy and his knowledge of the drugs involved.
In that regard, as with Colón de Jesus, the District Court was troubled, according to the transcript, by the gap between the stipulated drug quantity in Reyes‘s plea agreement and the quantity attributed to Reyes in the presentence report. And so the District Court dug into that issue, rejecting several times the contention from Reyes‘s counsel that the District Court was effectively bound by the stipulation in Reyes‘s plea agreement due to the District Court‘s prior acceptance at the sentencing of other co-conspirators of the low stipulations set forth in their plea agreements.
The District Court unfortunately was less than direct in explaining why it was rejecting this disparity-based argument for accepting the drug-quantity stipulation that Reyes and the government had made. The District Court seemed much more focused on justifying its authority to reject a stipulation, contending that it was not required to mechanically adopt all stipulations and that it could base its sentence on an understanding of the actual quantity for which Reyes was responsible and not simply the quantity set forth in the plea agreement.
But the sentencing judge eventually did get around to offering a reason for treating Reyes differently from others with respect to the quantity and for finding him to be, like Colón de Jesus, fully responsible for the full amount of drugs in the conspiracy. The District Court seemed to be suggesting that Reyes was different from these other leaders in the conspiracy because, even though he was in some respects lower down in the conspiracy‘s chain of command, he was in fact so closely tied to Colón de Jesus that he should be treated differently from all the others save for No. 1 himself.
In this regard, the District Court identified Reyes as “like a Lieutenant” and “one of the right hands” of Colón de Jesus. And the District Court pointed out that Reyes worked directly with Colón de Jesus at the drug point that Colón de Jesus owned while Colón de Jesus carried out his duties as chairman of the board for the conspiracy as a whole. The District Court also noted that testimony even showed that Reyes “look[ed] out for the stash that was kept” in Colón de Jesus‘s housing project, though it is not clear to me whether the testimony referred to the entire conspiracy‘s central stash house or to the stash house for just the local housing project. Finally, the District Court remarked that Reyes was apparently involved in the conspiracy for a large number of years, dating back all the way to 2005, and cited Reyes‘s particular role in the conspiracy as the reason for holding him responsible for the higher quantity of drugs.
In the face of the seeming disparity in how the District Court treated the quantity stipulated by Reyes relative to other drug point heads, it is not enough to say that Reyes should be treated differently because Reyes is like “a” lieutenant or “one of the” right-hand men to the overall leader. That characterization does not in and of itself—distinguish Reyes from other lieutenants and right-hand men whose stipulations were accepted. Nor did the District Court explain why he thought the conspiracy was organized in such a manner that a close aide to Colón de Jesus was plausibly more responsible for what went on than a drug point leader for an entire housing project.
So while the District Court‘s observations do point the way to a possible rationale for distinguishing Reyes from the others and for treating him, like Colón de Jesus, as responsible for a higher quantity, the District Court‘s explanation is too unclear and imprecise to suffice. And if the District Court meant to make some other argument about why Reyes should be treated so differently, it did not offer any such explanation.
Accordingly, I would vacate and remand for the District Court to explain why Reyes—and Reyes alone—should be treated like the conspiracy‘s overall leader as to a matter so critical to determining his sentence. For while apples only need be compared to apples, the District Court has some obligation to explain why it treated Reyes, uniquely, like an orange, given that no distinction may be inferred.
Perhaps the District Court on remand would determine that no answer is possible, in which case there is no question but that the District Court would have the discretion to impose a sentence more in line with Reyes‘s co-conspirators. United States v. Martin, 520 F.3d 87, 94 (1st Cir. 2008) (“[D]istrict courts have discretion, in appropriate cases, to align co-defendants’ sentences somewhat in order to reflect comparable degrees of culpability....“). But were the District Court to do so at that point, we would then have no need to probe further the limits of what, substantively, constitutes an unjustified disparity and what does not.
Perhaps, instead, the District Court would conclude that the defendant is an aide-de-camp to Colón de Jesus, and would further find that that fact makes him more responsible than his co-conspirators. Reyes could then appeal those findings to us, which we would review for clear error. Or the District Court might have some other explanation to offer for why this defendant‘s stipulation—like Colón de Jesus‘s but unlike the others—should be disregarded. If so, hearing it might help illuminate just what the effect on sentencing generally would be from denying the District Court the discretion to rely on such a reason for treating Reyes differently.
Whichever course the District Court might pursue on remand, I do not believe we should cut short the process by which we often proceed when we find a rationale for a sentence wanting—a process by which we point out why the explanation does not suffice and then remand for the District Court to reconsider the sentence. See United States v. Medina, 779 F.3d 55, 64 (1st Cir. 2015); United States v. Mendez-Colon, 15 F.3d 188, 191 (1st Cir. 1994); see also United States v. Cirilo-Muñoz, 504 F.3d 106, 127 (1st Cir. 2007) (Lipez, J., concurring in the judgment).
IV.
By statute, we have discretion to limit (or not) the issues to be addressed on remand by fashioning orders “as may be just under the circumstances,”
UNITED STATES of America,
Appellee,
v.
Carlos Luis ALVIRA-SANCHEZ,
Defendant, Appellant.
No. 14-1671.
United States Court of Appeals,
First Circuit.
Oct. 30, 2015.
Notes
Id. We agree with the Ninth Circuit in Sadler that “[t]he clear implication of this statement is that the timeliness dictates of Rule 4(b) are forfeitable, because Rule 4(b) is a nonjurisdictional claim-processing rule.” 480 F.3d at 940.The net effect of Robinson, viewed through the clarifying lens of Kontrick, is to admonish the Government that failure to object to untimely submissions entails forfeiture of the objection, and to admonish defendants that timeliness is of the essence, since the Government is unlikely to miss timeliness defects very often.
He‘s being responsible for only 3.5 kilos less than five kilos of cocaine, when it is obvious from the knowledge that we have of this file that any of these leaders would be responsible for a lot more drug than that, a lot more drug.
COURT: There are various points at which the defense counsel on cross-examination is asking certain questions, and the prosecution objects—
AUSA: Yes, Your Honor, I noticed that in the transcript.
COURT: How is that consistent with just providing the evidence to the judge?
AUSA: I don‘t remember the specific basis for the objections, Your Honor, but I would agree it probably would have been better not to object, to affirmatively contest—
COURT: And why do you think that would have been better?
AUSA: It would be more consistent and akin with our duties to follow and abide by the terms of the plea agreement. There‘s a certain point where we have to fulfill our duty to the court. But I‘m not sure the objection was on a substantive issue, but ...
COURT: By that logic, when defense counsel sought reconsideration of the sentence you probably shouldn‘t have opposed the motion for reconsideration, which you did, isn‘t that correct?
AUSA: We didn‘t, Your Honor, actually until the court ordered us to oppose it. He ordered the government to respond to it. Initially we did not file an opposition to it, Your Honor.