UNITED STATES OF AMERICA, Appellee, v. SANTOS DANIEL RONDÓN-GARCÍA, Defendant, Appellant.
No. 17-1098
United States Court of Appeals For the First Circuit
March 23, 2018
APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF PUERTO RICO [Hon. Aida M. Delgado-Colón, U.S. District Judge]
Mary June Ciresi, on brief for appellant.
John A. Mathews II, Assistant United States Attorney, Rosa Emilia Rodríguez-Vélez, United States Attorney, and Mariana E. Bauzá-Almonte, Assistant United States Attorney, Chief, Appellate Division, on brief for appellee.
I. Background
As this appeal concerns the imposition of the defendant‘s sentence, we briefly summarize the relevant facts and chаrted course of this case. We note that, because Rondón pled guilty and does not challenge the factual background, we draw those facts from the change-of-plea colloquy, the unchallenged portions of the Presentence Investigation Report (“PSR“), and the transcript of the sentencing hearing. See United States v. Fernández-Santos, 856 F.3d 10, 14 n.1 (1st Cir. 2017).
On September 8, 2015, agents from the Puerto Rico Police Department‘s Bayamón Intelligence Division executed a search warrant at Rondón‘s residence, where he lived with his common law wife, Alitza Rodríguez-Castrillón (“Rodríguez“), and their three children. After the agents detained Rondón and Rodríguez in the living room, they searched the residence and seized two notebooks containing drug ledgers, forty-one small plastic zip-lock baggies containing a white powder that field
That same day, agents from the Bureau of Alcohol, Tobacco, Firearms, and Explosives (“ATF“) arrested Rondón. After waiving his Miranda rights, Rondón admitted to selling the cocaine, but stated that he did not remember the pistol magazine being there and that it could belong to a friend. The ATF agents also arrested and interviewed Rodríguez who, after waiving her Miranda rights, stated that she did not know that Rondón had the cocaine and that, about a month prior, she saw Rondón walking in the street with a black firearm. She further told the agents that she did not know if Rondón owned a gun, but she had not seen him with a weapon in the house.
On September 9, 2015, Rondón was charged by Complaint with possession with intent to distribute cocaine, in violation of
On November 30, 2016, Rodríguez alerted the U.S. Probation Office, via letter, that she no longer wanted to be Rondón‘s third party custodian because she had “decided to end the strained relationship with [him].” The same day, the probation officer filed with the court an informative motion to this same effect. On December 19, 2016, Rodríguez was shot and killed while driving in Guaynabo, Puerto Rico. The probation officer filed another informative motion that same day to inform the court of hеr death.
Rondón was sentenced on Decеmber 28, 2016. At sentencing, Rondón‘s counsel argued for a sentence of six months of imprisonment, at the low end of the GSR, while the Government asked the court to impose a sentence of twelve months. In making his pitch, his defense counsel emphasized that, as a result of Rodríguez‘s death, Rondón would now be the lone parent to his three children. He also pointed to Rodríguez‘s statements to probation when interviewed for the PSR that Rondón was dedicated to his children and requesting that the court show leniency. The sentencing court responded that Rodríguez had informed the probation office prior to her death that she no longer wanted to be Rondón‘s third party custodian “because of
The court then discussed the circumstances of Rodríguez‘s murder, relayed to it by the probation officer, noting that Rodríguez brought the children to Rondón‘s mother‘s house “at his request,” and then, after Rondón “asked her specifically to go and pick the children up[,] coincidently she [was] killed as she was close to the residence. . . . She was murdered on her way to pick up the children.” Rondón‘s attorney responded that the details of Rodríguez‘s death were “news to [him],” and that he “[didn‘t] see that information.” He did, however, acknowledge that he was aware that Rodríguez had asked to be removed as Rondón‘s third party custodian, and that the PSR contained information that she was murdered while driving her vehicle in Guaynabo.
Following this exchange, in support of its recommendation, the Government pointed out that Rondón was selling drugs and possessed ammunition in the same apartment in
As the court recited the accusations of Rondón‘s dismissed 2010 domestic violence charges — which stemmed from alleged abuse of Rodríguez — the court drew a parallel between the 2010 allegations and the allegations purportedly contained
Summing up its considerations, the court then explained:
[A] departure is warranted and reasons I already stated are on the record. More so pointing as to the sale of drugs and the violent conduct of this defendant and the sale of drugs and keeping drugs in a house and ammunition where there were minors, and what appears to be his violent tendencies.
Ultimately, the court sentenced Rondón to an upwardly variant sentence of eighteen months of imprisonment. In its statement of reasons, the court indicated that it departed from the
II. Discussion
“Appellate review of federal criminal sentences is characterized by a frank recognition of the substantial discretion vested in a sentencing court.” United States v. Flores-Machicote, 706 F.3d 16, 20 (1st Cir. 2013). This Court rеviews preserved challenges to the reasonableness of sentencing decisions under an abuse of discretion standard. United States v. Santiago-González, 825 F.3d 41, 48 (1st Cir. 2016); see also Gall v. United States, 552 U.S. 38, 46 (2007). Our review is limited to determining whether the district court‘s sentencing determinations were reasonable. Gall, 552 U.S. at 46. When conducting that review, we first determine whether a sentence is procedurally reasonable and then, if it is procedurally adequate, evaluate its substantive reasonableness. Flores-Machicote, 706 F.3d at 20.
A. Procedural Reasonableness of Rondón‘s Sentence
We review the district court‘s method for arriving at a sentence to ensure that the court did not commit any “significant procedural error.” Gall, 552 U.S. at 51. Examples of this include “failing to calculate (or improperly
When fashioning the appropriate sentence, a court must consider numerous factors, including: the nature and circumstances of the offense and the history and characteristics of the defendant; the need for the sentence to reflect the seriousness of the offense and promote respect for the law, to provide deterrence, to protect the public, and to provide the defendant with needed training and care; the kinds of sentences available; the established sentencing range; and the need to avoid disparities in sentencing.
Yet, this discretion is not boundless and must comply with due process considerations аnd the parameters of Federal Rule of Criminal Procedure 32. Bramley, 847 F.3d at 5; see also Betterman v. Montana, 136 S. Ct. 1609, 1617 (2016) (“After conviction, a defendant‘s due process right . . . is still present. He retains an interest in a sentencing proceeding that is fundamentally fair.“). Due process requires that the defendant be sentenced on information that is not false or materially inaccurate. United States v. Curran, 926 F.2d 59, 61 (1st Cir. 1991). A sentencing court may consider both charged and uncharged conduct of the defendant, but only if proven by a preponderance of the evidence. United States v. González, 857 F.3d 46, 59 (1st Cir. 2017); see also United States v. Lombard, 72 F.3d 170, 176 (1st Cir. 1995). The defendant must be given adequate notice of those facts prior to sentencing and the court must “timely advise[] [the defendant] . . . that it heard or read, and was taking into account [those facts].” United States v. Acevedo-López, 873 F.3d 330, 341 (1st Cir. 2017) (second
1. Ex Parte Communication
Rondón‘s first claim relies on the sentencing court‘s discussion of the circumstances surrounding Rodríguez‘s murder, which Rondón argues amounts to an insinuation by the court that he was somehow involved and responsible. Citing due process concerns with the court‘s consideration of supposedly unreliable information, Rondón declares that “[t]he court‘s tacit innuendo was prejudicial and founded on speculation and improperly before the court.” Rondón points to the district court‘s references to information contained in Rodríguez‘s letter to probation, and to the fact that Rodríguez was allegedly on her way to pick up the children from his mother‘s house at Rondón‘s request when she was murdered close to the residence. This information was relayed to the court by probation, and, according to Rondón, was
As a threshold matter, the government argues that Rondón has failed to exрlain why it was improper for the district court to consider the letter and thereby has waived that argument. We disagree. Before the sentencing court and in his opening brief, Rondón and his counsel repeatedly proffered that only the court and probation were privy to both the letter submitted by Rodríguez and information that the probation officer gave to the court pertaining to Rodríguez‘s death. When the sentencing court first discussed Rodríguez‘s November 2016 letter, the following exchange took place:
[DEFENSE]: I am not privy to that information. Whatever information she gave to the Probation Officer I know about but that information has never been notified to me.
THE COURT: But you heard about that through the motion that was filed.
[DEFENSE]: But it only says an estranged relationship.
THE COURT: The letter alludes that she can no longer act as the third party custody [sic], that the residence belongs to her, that she has it rented and all of the belongings in there belong to her and he has been physically and verbally abusive and violent and she can no longer hold on to the situation.
[DEFENSE]: Well, I have no information to say whether that is true or false.
[DEFENSE]: That is news to me.
THE COURT: She was murdered on her way to pick up the children.
[DEFENSE]: But I don‘t see that information.
THE COURT: I am giving you the information, but the Presentence Report contains the information that she was killed on December 19 in Guaynabo.
[DEFENSE]: And she notified the Probation Officer that she did not want to continue as third party custody [sic], that I knew.
THE COURT: The new information is the one that the Probation Officer obtained concerning the fact that she had been requested to go in the morning hours to pick up the children and that is when she gets killed.
[DEFENSE]: That I cannot argue, Your Honor.
The very crux of Rondón‘s argument is that this information was improperly before the sentencing court due to its unreliable nature, and the fact that he had not been informed of it in advance of sentencing. Therefore, while the claim is subject to plain error review for Rondón‘s failure to objeсt, we do not find the argument waived.
Moreover, the government insists that all of the factual information relevant to sentencing was disclosed to Rondón, and that he had a reasonable opportunity to comment.
A sentencing court using documents outside of the PSR, and that are therefore not subject to Federal Rule of Criminal Procedure 32, “should either make clear that the document is not being usеd for its factual content, or should disclose to the defendant as much as was relied upon, in a timely manner, so as to afford the defendant a fair opportunity to examine and challenge it.” Acevedo-López, 873 F.3d at 342 (quoting Curran, 926 F.2d at 63). While we have recognized the sentencing court‘s right to consult ex parte with a probation officer to receive advice, “if the probation officer reveals new facts relevant to the sentencing calculus, those facts cannot be relied upon by the sentencing court unless and until they are disclosed to the parties and subjected to whatever adversarial testing may be appropriate.” Bramley, 847 F.3d at 7. Providing new factual informаtion in response to a defendant‘s sentencing argument does not provide the defendant “a fair opportunity to examine and challenge it.” Id. at 6 (quoting Curran, 926 F.2d at 63); see also Berzon, 941 F.2d at 10; U.S.S.G. § 6A1.3(a). Here, as noted above, the evidence challenged is absent from the record and was not provided prior to the sentencing hearing. Given the court‘s discussion of the evidence and its explanation that its departure from the GSR was based, at least in part, on the defendant‘s “violent conduct” and “violent tendencies,” the record suggests that the allegations of abuse were at least a factor in its sentencing calculus. Coupled with defense counsel‘s repeated rejоinders that he had not been provided notice of the information, we find the failure to provide this factual information to the defendant to be erroneous.
Further, without more, we cannot say this information had a sufficient indicia of reliability to meet the requisite
Rondón must make it past two additional hurdles of plain error review. Finding that a claimed error affected a defendant‘s substantial rights requires a showing that, there is “a reasonable probability that, but for the error, the district court would have imposed a different, more favorable sentence.” United States v. Perazza-Mercado, 553 F.3d 65, 78 (1st Cir. 2009) (quoting United States v. Gilman, 478 F.3d 440, 447 (1st Cir. 2007)).3 We have before us not a run-of-the mill within-guidelines sentence, but rather an upward variance not requested by the Government. In its statement of reasons, the court noted that its basis for the departure was the “aggravating
But even assuming that the district court would have imposed a more favorable sentence, our discretionary correction of the error in this case is not warranted. See United States v. González-Castillo, 562 F.3d 80, 84 (1st Cir. 2009) (exercising discretion to correct plain error where “fairness of appellant‘s sentence was impaired“); United States v. Mangone, 105 F.3d 29, 36 (1st Cir. 1997) (“Our final step in the [plain error] anаlysis is to determine whether we should, in our discretion,
2. Rondón‘s Arrest Record
Rondón next objects to the court‘s use of his prior arrests as a basis for its variance from the GSR, claiming that the court clearly assumed the allegations underlying those arrests to be true. As all prior charges against him were dismissed, Rondón claims that the district court lacked any reliable, factual grounds to justify its consideration of those arrests, and that the underlying allegations failed to meet the preponderance of the evidence standard.
Rondón cannot demonstrate that it was plain error for the court to reference his prior arrests. The Guidеlines state that “prior similar adult criminal conduct not resulting in a criminal conviction” may form the basis for an upward departure from the guideline range, but that a “prior arrest record itself shall not be considered for purposes of an upward departure
“Generally, a PSR bears sufficient indicia of reliability to permit the district court to rely on it at sentencing.” United States v. Taylor, 277 F.3d 721, 724 (5th Cir. 2001). The defendant is free to challenge any assertions in the PSR with countervailing evidence or proffers, in which case the district court is obliged to resolve any genuine and material dispute on the merits. But if the defendant‘s objections to the PSR are merely rhetorical and unsupported by countervailing proof, the district court is entitled to rely on the facts in the PSR.
United States v. Olivero, 552 F.3d 34, 40 (1st Cir. 2009) (quoting United States v. Cyr, 337 F.3d 96, 100 (1st Cir. 2003)). Here, the district court invoked Rondón‘s arrest history as contained in his PSR, to which Rondón did not object. Moreover, his PSR contained detailed facts underlying the individual charges listed in his arrest record. This failure to object constitutes a waiver of Rondón‘s right to challenge the information contained in the PSR. See United States v. Serrano-Mercado, 784 F.3d 838, 847-48 (1st Cir. 2015); United States v. Turbides-Leonardo, 468 F.3d 34, 37-38 (1st Cir. 2006); see also United States v. Ocasio-Cancel, 727 F.3d 85, 91-92 (1st Cir. 2013) (stating that, when the defendant did not object to the PSR‘s discussion of dismissed charges against him, “the district court may treat the fact as true for sentencing purposеs.“).
But, Rondón‘s argument once agаin must succumb to the heavy burden of plain error review. In United States v. Delgado-Sánchez, 849 F.3d 1, 13 (1st Cir. 2017), while acknowledging that “when the occasion presents itself, we very well may sustain a preserved challenge to a sentence that treats arrests as proof of unlawful conduct,” we found that “[the defendant‘s] plain-error appellate challenge provides no such occasion.” Plain error review requires us to reverse only where a lower court‘s error is clear or obvious in light of the prevailing law, but ”Cortés-Medina held only that the law on this question was unclear.” Id. Thus, while we once again express our distaste for a district court‘s reliance on a defendant‘s record of prior arrests and charges without convictions, we find thаt the court‘s use of the purported criminal conduct underlying Rondón‘s criminal charges, to which he did not object, did not amount to clear error. Rondón‘s second claim must suffer the same fate as his first.
We hold that, on plain error review, the procedural errors in Rondón‘s sentence do not warrant reversal. We move next to Rondón‘s claim of substantive unreasonableness.
Rondón also did not preserve his substantive reasonableness claim below. Because the standard of review for unpreserved challenges to the substantive reasonableness of a sentence remains unclear, we will give Rondón the benefit of the doubt and review under the more fаvorable abuse of discretion standard. See United States v. Ruiz-Huertas, 792 F.3d 223, 228 (1st Cir. 2015).
“[S]ubstantive unreasonableness encompasses whether the sentence survives scrutiny when examined under the totality of the circumstances.” Santiago-González, 825 F.3d at 48 (citing United States v. Del Valle-Rodríguez, 761 F.3d 171, 176 (1st Cir. 2014)). A sentence is substantively reasonable if it rests on “a plausible sentencing rationale and a defensible result.” United States v. Martin, 520 F.3d 87, 96 (1st Cir. 2008). “‘[S]entencing becomes a judgment call’ involving an intricate array of factors.” Flores-Machicote, 706 F.3d at 21 (quoting Martin, 520 F.3d at 92). We only reverse where the sentence is outside of the “expansive universe of reasonable sentences.” United States v. King, 741 F.3d 305, 308 (1st Cir. 2014).
Rondón claims that the court “gave substantial weight to invalid, unsubstantiated grounds to enhance [his] sentence.”
III. Conclusion
For the foregoing reasons, the sentence is affirmed.
Affirmed.