U.S. v. Cirilo-Munoz, 05-2469.

Citation504 F.3d 106
Decision Date02 October 2007
Docket NumberNo. 05-2469.,05-2469.
PartiesUNITED STATES, Appellee, v. Ernesto CIRILO-MUÑOZ, a/k/a Nesty, Defendant, Appellant.
CourtUnited States Courts of Appeals. United States Court of Appeals (1st Circuit)

Mark Diamond, for appellant.

Germán A. Rieckehoff, Assistant United States Attorney, with whom H.S. Garcia, United States Attorney, and Nelson Pérez-Sosa, Assistant United States Attorney, were on brief, for appellee.

Before TORRUELLA, LYNCH, and LIPEZ, Circuit Judges.

PER CURIAM.

It is the decision of the court, by vote of the majority, that Ernesto Cirilo-Muñoz's sentence is vacated and remanded. One judge votes for that remand because of his view that the sentence imposed is unreasonable and that the explanation for it is inadequate. The other judge votes for remand because of the inadequacy of the sentencing explanation. One judge dissents from this remand decision.

The majority of the court has rejected defendant's sentencing arguments that the sentence was unreasonable because there was insufficient evidence to convict him and, separately, that the fact of the sentence disparity between defendant and Lugo itself establishes that the sentence is unreasonable. Two judges of the court disagree as to whether there was a Guidelines error as to the minimal participant issue; the third judge finds it unnecessary to address the issue on appeal in light of the remand for resentencing.

This result is explained by the three attached opinions.

TORRUELLA, Circuit Judge.

In varied forms and postures, this is the third instance in which we are called upon to pass on the fate of Ernesto Cirilo-Muñoz, also known as "Nesty." See United States v. Mangual-Corchado, 139 F.3d 34 (1st Cir.1998) (direct appeal); Cirilo-Muñoz v. United States, 404 F.3d 527 (1st Cir.2005) (petition for review under 28 U.S.C. § 2255 for ineffective assistance of counsel). I suggest that had Cirilo-Muñoz been more discerning as to the company that he kept, or put otherwise, had he not been in the wrong place at the wrong time, Mangual-Corchado, 139 F.3d at 54-55 (McAuliffe, J., dissenting), he would in all likelihood have passed through his otherwise unremarkable life without his existence ever receiving official notice. But as these several appeals attest, such was not to be. Thus, Cirilo-Muñoz appears before us once more seeking justice, this time appealing from the twenty-seven year sentence imposed by the district court after its original draconian judgment of life imprisonment was vacated by us. Cirilo-Muñoz, 404 F.3d at 533. Unfortunately, as I predicted, id. at 535-37 (Torruella, J., concurring), not much was gained by sending the case back to the same district judge.

In what is by now the most notorious central fact of this case, the district judge had sentenced the actual assassin of the victim, who was a Puerto Rico state policeman acting in an undercover capacity, to seventeen1 years imprisonment for the officer's murder, justifying this lopsided action on the fact that the murderer had turned state's evidence and "cooperated" with the Government. In contrast, in resentencing Cirilo-Muñoz, to whom the district judge was able to attribute no higher appellation than that of a "minor" participant in the perpetration of the crime for which he was convicted, see U.S.S.G. § 3B1.2(b),2 the district judge "reduced" Cirilo-Muñoz's life sentence to "only" twenty-seven years of incarceration.3 This results in a sentence imposed on the "minor" aider and abettor that is 59% higher than that of the actual killer. Leaving aside the fact that the imposition of a sentence of twenty-seven years imprisonment on a minor participant in this case is grossly unreasonable, the absurdity of this unjustified disparity is further highlighted by the events surrounding this grisly murder, including the assassin's actions in that respect, and Cirilo-Muñoz's minimal involvement in this unfortunate event. This is strikingly evident if one considers that Cirilo-Muñoz was found guilty of only the aiding and abetting charge with regard to Count 1, having been absolved by the jury of both the carjacking and weapons offenses. Moreover, there was a dearth of evidence to sustain even the aiding and abetting charge because of Cirilo-Muñoz's lack of prior knowledge of the assassin's plans or intentions, or of his engaging in any deliberate action in aid or support of the same before the murder of the police agent by the actual killer.

Predictably, given the sentence imposed after remand, this appeal ensued in which Cirilo-Muñoz claims, in substance, that his sentence is unreasonable (1) because of the failure of the district judge to grant him a further reduction in his sentence notwithstanding that the evidence showed him to be a "minimal" participant in the perpetration of the offense for which he was convicted, see U.S.S.G. § 3B1.2(a),4 (2) because of the failure of the district judge to adequately consider and apply the factors established in 18 U.S.C. § 3553(a)5 when determining his re-sentence, (3) by reason of the disparity in the sentence imposed after remand when it is compared to that received by the "key culprit" to the murder, and lastly, (4) because his constitutional right against excessive punishment is violated by his being sentenced for a crime for which he is innocent as a matter of law.

I. The Facts

I am compelled to return to where I left off in my last intervention in this matter. Cirilo-Muñoz, 407 F.3d at 538 (Torruella, J., concurring). I then made reference to a quote from Goethe to the effect that, "[n]othing is more damaging to a new truth than an old error,"6 for if anything is consistently obvious throughout the tortuous path of this case it is how the previous errors committed by the controlling participants have haunted it, and have unjustly stacked the deck against Cirilo-Muñoz and obstructed the search for the truth.

The record is crystal clear that the Government commenced this case focusing on Cirilo-Muñoz as the prime suspect of the murder of the undercover police agent, Iván Mejías-Hernández (Mejías). This occurred because the actual perpetrator of the murder, José Lugo-Sánchez (Lugo), fingered Cirilo-Muñoz as the person who killed Mejías in an attempt to divert attention away from himself. This started on November 9, 1994, during the course of an interview with F.B.I. Special Agents René F. Medina (Medina) and Manuel Pérez, Jr. (Pérez), in which Lugo told the agents that on November 1, 1994, Cirilo-Muñoz and Saúl Mangual-Corchado (Saúl) accosted Mejías, whom Lugo said Cirilo-Muñoz suspected of being a police informant.7 Lugo falsely claimed that Cirilo-Muñoz held a gun to Mejías and forced Mejías into his own car, a white Suzuki, and thereafter left the area with him and Saúl in the Suzuki, followed by a black Oldsmobile. Lugo told the F.B.I. agents that the following day he heard of Mejías's murder on television.

Later that same day, Lugo gave a second false version of the murder of agent Mejías to the F.B.I. This time, although admitting to some participation in the events surrounding Mejías's murder, Lugo continued to implicate Cirilo-Muñoz, whom he depicted as the proponent and leader of the group, claiming that Cirilo-Muñoz had told him that he was going to take Mejías and kill him, and needed to have Lugo and Luis Antonio Ramírez-Ynoa (Tony) follow in the black Oldsmobile to pick them up afterwards.

Based on the information provided by Lugo to the F.B.I. in these two interviews, on November 23, 1994, Agent Medina appeared before a grand jury and gave testimony which substantially tracked the information given to him and Pérez by Lugo, implicating Cirilo-Muñoz as the perpetrator of Mejías's murder and the carjacking of his automobile.8 At the time of his appearance before the grand jury, as will be presently discussed, it is not clear whether Agent Medina was totally unaware that the information given to him by Lugo on November 9 regarding Cirilo-Muñoz's actions and his alleged complicity in the murder of Mejías and the carjacking of Mejías's car, were almost completely false.9 In any event, based on Agent Medina's testimony, the grand jury issued an indictment on November 23, 1994.

The indictment that issued was never superseded, and thus this indictment (based on Lugo's fabrications) is the accusation on which the case against Cirilo-Muñoz was tried. Furthermore, Lugo's original story continued to dictate the Government's actions and its posture before the district court, a situation which in turn has greatly influenced the district court's actions.

The indictment charged in Count 1 that on November 1, 1994, Lugo, Cirilo-Muñoz, Saúl, and Ramírez-Ynoa aided and abetted each other "during the commission of, and while attempting to avoid apprehension . . . for a felony drug violation, to wit: possession with intent to distribute cocaine," by killing and/or counseling the intentional killing of Mejías-Hernández, a local law enforcement officer engaged in the performance of his official duties, in violation of 21 U.S.C. § 848(e)(1)(B) and 18 U.S.C. § 2. In Count 2, the same persons were charged with aiding and abetting each other in taking Mejías's motor vehicle by force, to wit, forcing Mejías into the car at gunpoint and causing his death, all in violation of 18 U.S.C. § 924(c)(1) and 18 U.S.C. § 2. Count 3 charges them with aiding and abetting each other in the use of a firearm while committing a crime of violence, to wit, the carjacking, in violation of 21 U.S.C. § 848(e)(1)(B) and 18 U.S.C. § 2. Count 4 charged only Lugo and Saúl with aiding and abetting each other in possessing with the intent to distribute 500 grams or more of cocaine, a violation of 21 U.S.C. § 841(a)(1) and 18 U.S.C. § 2.

As previously stated, it is not clear whether the Government knew that Lugo's story was fabricated before the indictment against Cirilo-Muñoz was sought. According to a 302 report dictated by Agent Medina the day...

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