Case Information
*2 TORRUELLA, Circuit Judge
. Julio Román-Huertas ("Román") pled guilty to being a felon in possession of a firearm in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2). His plea agreement recommended a total offense level under the United States Sentencing Guidelines (the "Guidelines") of seventeen. At his sentencing hearing, Román objected to the total offense level of seventeen, arguing that it should instead be twelve because his prior felony was not "a controlled substance offense" under the Guidelines. Relying on an untranslated Spanish document, the district court ruled that his total offense level was seventeen. The Guidelines' recommended sentence was twenty-seven to thirty- three months' imprisonment, but the district court sentenced Román to forty-six months' imprisonment. Because the district court improperly relied on an untranslated document, we vacate Román's sentence and remand for resentencing.
I. BACKGROUND
On March 8, 2014, while Román and another man were driving in San Juan, Puerto Rico, Román fired one shot from his pistol into the air. Agents from the Puerto Rico police department were in the area, and they arrested Román and seized Román's pistol and an additional magazine. Román was charged with being a felon in possession of a firearm.
On April 16, 2014, Román entered into a plea agreement, which included "advisory Guideline calculations" of a base offense level of twenty and a three-level credit for acceptance of responsibility, for a total offense level of seventeen. This calculation assumed that Román's prior conviction had been a "controlled substance offense" under U.S.S.G. § 2K2.1(a)(4)(A). Although the parties did not stipulate to a Criminal History Category ("CHC"), the plea agreement's advisory Guideline calculations indicated that Román's recommended sentence would be twenty-seven to thirty-three months if he had a CHC of II. "The parties agree[d] to recommend the lower end of the applicable guideline range."
On August 12, 2014, the probation officer filed a presentence investigation report (the "PSR"). The PSR calculated a total offense level of seventeen and a CHC of II, resulting in a recommended sentence of twenty-seven to thirty-three months. Román's sentencing memorandum, filed on September 5, 2014, stated that his "offense level [was] expected to be level 17." On August 27, 2015, the probation officer filed an addendum to the PSR, which stated that Román "ha[d] not filed any written objections."
On September 2, 2015, more than a year after the PSR was filed, Román filed objections to it. Román argued that the PSR *4 improperly calculated his total offense level as seventeen, because Román's prior conviction under Article 406 of the Puerto Rico Controlled Substances Act, P.R. Laws tit. 24, § 2406, "is not a 'controlled substance offense' in regards to the Guideline Section 2K2.1." Specifically, Román asserted that "not all offense[s] under [Article 406] meet [U.S.S.G. § 4B1.2(b)'s] definition" of a controlled substance offense. [1] Thus, Román contended that his total offense level should be twelve, [2] not seventeen as the PSR and his plea agreement recommended.
The district court held a sentencing hearing the next day, and Román affirmed that he "reinstate[d] this objection" to the total offense level of seventeen. The Government responded that under "a modified categorical approach" the district court could "examine if there are existing documents that allow us to determine whether [Román's] particular violation of [Article] 406" was a controlled substance offense. The district court then stated that it had "the document here which has the legal basis." [3] *5 According to the district court, that document "indicate[d] . . . that the charges were for violation of . . . [A]rticle 401 that entails distribution of a controlled substance" but were "reduced to a violation of [A]rticle 406." The district court further explained that "the description" in "this criminal complaint . . . entails and encompasses the possession with intent to distribute a controlled substance." The district court then stated that "the offense charged meets the definition of . . . a controlled substance offense." When Román asserted "that the document[s] that the Court can examine are limited," the district court replied that it had "exercise[d its] due diligence in terms of checking that we had the proper documents."
The document the district court relied on was never entered into the record, and so it is not available to us on appeal. The parties agree, and it is clear from the record, however, that the document was in Spanish.
During the argument concerning the proper calculation of Román's total offense level, the Government opposed Román's "documents" to describe what they were reviewing. It is not clear from the hearing transcript whether there was a single document or multiple documents, and the document or documents are not part of the record. Except where quoting from the transcript, we will use "document" to describe what the parties reviewed.
To facilitate meaningful review of sentences, we urge parties to include in the appellate record any documents relied upon below. *6 arguments on the merits. It never objected, either in writing or at the hearing, to Román's untimely objection to the PSR. After Román presented his mitigating facts, the Government recommended a sentence at the "lower end" of the Guidelines' recommended range.
After the exchange concerning the nature of the controlled substance offense, Román "ask[ed] the Court to follow the joint recommendation and impose a sentence of 27 months." The district court ultimately sentenced Román to forty-six months' imprisonment, highlighting the fact that Román had fired his gun into the air "while driving a vehicle" in a city, reflecting a "blatant disregard for the law and public safety."
Román timely appealed his sentence. He argues that the district court (1) committed a procedural error when it determined that Román's prior conviction was a "controlled substance offense" under U.S.S.G. § 2K2.1(a)(4)(A), (2) committed plain error by relying on an untranslated Spanish document, (3) committed a procedural error by failing to justify its upward variance, and (4) imposed a sentence that was substantively unreasonable.
II. ANALYSIS
A. The English Language Requirement and the Standard of Review
The Jones Act requires that "[a]ll pleadings and
proceedings in the United States District Court for the District
of Puerto Rico . . . be conducted in the English language." 48
*7
U.S.C. § 864. "It is clear, to the point of perfect transparency,
that federal court proceedings must be conducted in English."
United States v. Millán-Isaac, 749 F.3d 57, 64 (1st Cir. 2014)
(quoting United States v. Rivera-Rosario,
Román concedes that he did not object to the district
court's use of the untranslated document. The parties therefore
assume that the plain error standard of review applies. They are
incorrect. In Rivera-Rosario, the defendants' attorney did not
object to the presentation of Spanish tape-recordings and
documents to the jury and in fact objected to an English
translation it considered faulty.
B. Román Did Not Waive His Objection to the Calculation of His
Total Offense Level
We must first address the Government's contention that
Román knowingly waived his objection to the calculation of his
total offense level. "Waiver, where it occurs, is treated as an
'intentional,' and therefore permanent, abandonment of a
position." United States v. Torres-Rosario, 658 F.3d 110, 115
(1st Cir. 2011) (citing United States v. Walker,
The Government identifies three ways in which Román
waived his objection: first, by stipulating to the calculation
in the plea agreement; second, by failing to file a written
objection to the PSR until the day before the sentencing hearing;
and third, by acquiescing at the sentencing hearing. The
Government did not raise Román's stipulation or untimely objection
before the district court, however, and instead addressed the
merits of Román's objection, and so it waived the first two
asserted bases. See United States v. Castro-Taveras,
54 (1st Cir. 2016) ("[T]he government did not argue forfeiture and
instead addressed the merits of [the] claim . . . . Hence, the
government waived its forfeiture argument . . . ."); Sotirion v.
United States,
C. The Untranslated Document Had the Potential to Affect the
Disposition of Román's Appeal
We must therefore examine whether the district court's
use of the untranslated document "has the potential to affect"
Román's argument that his prior conviction under Article 406 was
not a controlled substance offense. U.S.S.G. § 4B1.2(b) defines
a "controlled substance offense" to include the violation of a
state law "that prohibits . . . the possession of a controlled
substance (or a counterfeit substance) with intent to manufacture,
import, export, distribute, or dispense." This encompasses "the
offenses of aiding and abetting, conspiring, and attempting to
commit such offenses." U.S.S.G. § 4B1.2 cmt. n.1. It does not,
however, include mere possession offenses. See United States v.
Ramos-González,
*11
Román previously pled guilty to Article 406, but, as the
Government concedes, that statute "encompasses both predicate and
non-predicate conduct." It was the Government's burden to
establish, through the kinds of documents approved by Shepard v.
United States, 544 U.S. 13, 17 (2005), that Román's prior
conviction was a controlled substance offense. United States v.
Dávila-Félix, 667 F.3d 47, 55 (1st Cir. 2011). The Government
contends that Román "does not refute -- and indeed, concedes" that
he was charged under Puerto Rico Laws tit. 24, § 2401 ("Article
401"), which the Government asserts must be a controlled substance
offense.
[6]
But the Government must show that Román was convicted
of a controlled substance offense, and he pled guilty under Article
406, not Article 401. To bridge this gap, the Government further
asserts that "the record" shows that Román was "charged under
Article 401's 'possession with intent to distribute' modality,"
and so his Article 406 guilty plea was a distribution conviction.
The Government cites to the PSR in support of this proposition,
however, and a PSR is not "an approved source for determining
whether" a defendant's conviction was based on a controlled
*12
substance offense. Ramos-González,
Because the district court relied only on the untranslated document to calculate Román's total offense level, that document "affect[s] the disposition" of his appeal. See Millán-Isaac, 749 F.3d at 64. We therefore must vacate Román's sentence and remand for resentencing. We need not reach Román's remaining claims of error.
Finally, we briefly address resentencing. The
untranslated document was not evidence, and so any certified
translation would constitute new evidence. In general, "the
district court may consider only such new arguments or new facts
as are made newly relevant by the court of appeals' decision" on
remand for resentencing. United States v. Dávila-Félix, 763 F.3d
105, 110 (1st Cir. 2014) (alteration omitted) (quoting United
States v. Ticchiarelli,
III. CONCLUSION
We vacate Román's sentence and remand for resentencing because the district court improperly relied on an untranslated document in calculating Román's offense level.
Vacated and Remanded.
Notes
[1] U.S.S.G. § 4B1.2(b) provides the Guidelines' definition of a "controlled substance offense" and is cross-referenced by other sections of the Guidelines, including U.S.S.G. § 2K2.1(a)(4)(A).
[2] If his prior conviction was not for a controlled substance offense, Román's base offense level would be fourteen, rather than twenty, see U.S.S.G. § 2K2.1(a)(6), but he would only be eligible for a two-level acceptance of responsibility credit, see U.S.S.G. § 3E1.1(b).
[3] The district court and the parties used both "document" and
[4] The fact that a probation officer, rather than a party, supplied the untranslated document to the district court is irrelevant to our analysis. The Jones Act applies with equal force to any material that a probation officer wants the district court to consider at sentencing.
[5] In Rivera-Rosario, we reviewed all five of the defendants' convictions for reversible error under the Jones Act, even though only two had "raised this issue on appeal," because "violations of the English language requirement . . . have the potential to eviscerate a party's right to meaningful appellate review." 300 F.3d at 10 n.11. We therefore review Román's Jones Act claim under the correct standard even though he mistakenly believed that it was subject to plain error review.
[6] Román disputes whether convictions under Article 401 are
categorically controlled substance offenses. We have previously
stated that they are not, Dávila-Félix,