United States v. MilláN-Isaac
| Decision Date | 18 April 2014 |
| Docket Number | 12–1769.,Nos. 12–1693,s. 12–1693 |
| Parties | UNITED STATES of America, Appellee, v. Heriberto MILLÁN–ISAAC; José A. Cabezudo–Kuilan, Defendants, Appellants. |
| Court | U.S. Court of Appeals — First Circuit |
OPINION TEXT STARTS HERE
Megan Barbero, with whom Wilmer Cutler Pickering Hale and Dorr LLP, Gregory P. Teran, and Rachel I. Gurvich, were on brief for appellant Cabezudo–Kuilan.
Julie Soderlund, for appellant Millán–Isaac.
Juan Carlos Reyes–Ramos, Assistant United States Attorney, with whom Rosa Emilia Rodríguez–Vélez, United States Attorney, and Nelson Pérez–Sosa, Assistant United States Attorney, Chief, Appellate Division, were on brief for appellee.
Before TORRUELLA, BALDOCK,* and KAYATTA, Circuit Judges.
Defendants–Appellants José Cabezudo–Kuilan (“Cabezudo”) and Heriberto Millán–Isaac (“Millán”) pled guilty to aiding and abetting a robbery and possessing a firearm during a crime of violence. At back-to-back sentencing hearings, the district court first sentenced Millán to 180 months of imprisonment and then sentenced Cabezudo to 114 months of imprisonment. Immediately after sentencing Cabezudo, however, the sentencing judge sua sponte elected to bring back Millán and to decrease his sentence from 180 to 120 months of imprisonment.
On appeal, both Appellants challenge their respective sentences. Cabezudo alleges that the district court violated the Jones Act by considering untranslated, Spanish-language text messages during his sentencing and that his sentence is procedurally unreasonable. Millán claims that the district court erred by sentencing him on the basis of factual information discussed at Cabezudo's sentencing hearing for which he was not present and to which he could not respond. After careful consideration, we find that the district court plainly erred in sentencing both Appellants, and we thus remand for resentencing.
In November of 2011, Cabezudo was nineteen years old, working as a welder and supplementing his income by loaning money to others and charging interest. Millán was twenty-one years old and working part-time as a sales person in a clothing store. Cabezudo provided Millán with a loan of $150, to be paid back in installments of $40 every Saturday. When Millán was unable to make one of these scheduled payments, Cabezudo suggested via text message that Millán commit a robbery in order to get the money to repay him. Millán agreed on the condition that Cabezudo act as the getaway driver.
On November 26, 2011, Cabezudo drove to Millán's home, picked him up, and drove to a Burger King in Bayamón, Puerto Rico. That night, while Cabezudo waited in the car, Millán entered the restaurant, showed the cashier an unloaded firearm, and told her to give him the money from the register. The cashier complied and placed $114 on the counter, which Millán grabbed before running out the door. The Burger King's manager followed Millán, however, and he quickly flagged down nearby police officers who were patrolling the area. Shortly after Millán reentered Cabezudo's car, the police officers approached the vehicle. Cabezudo turned off the ignition, and the duo surrendered.
Following their arrest and pursuant to their plea agreements, both Cabezudo and Millán pled guilty to aiding and abetting each other in the commission of a robbery in violation of the Hobbs Act, 18 U.S.C. § 1951 (“Count One”), and to possessing a firearm during a crime of violence in violation of 18 U.S.C. § 924(c)(1)(A) (“Count Two”). Cabezudo's plea agreement provided a base offense level of 20 for Count One, reduced by 3 levels for acceptance of responsibility. Pursuant to the U.S. Sentencing Guidelines, this resulted in a Guidelines Sentence Range (“GSR”) of 24–30 months for Count One, and the government agreed to recommend a 24–month sentence. For Count Two, the Guidelines sentence was equivalent to the mandatory minimum sentence of 60 months, which the government agreed to recommend, for a total recommendation of 84 months of imprisonment on the two counts. The Pre–Sentencing Report (“PSR”) confirmed these Guidelines calculations.
Millán's plea agreement resulted in an identical GSR of 24 to 30 months for Count One, with the government similarly agreeing to recommend a low-end sentence of 24 months of imprisonment. Unlike Cabezudo, however, Millán pled guilty to “brandishing” the firearm on Count Two, which carried a higher mandatory minimum of 84 months, for a total recommendation of 108 months of imprisonment.
On April 23, 2012, the district court conducted back-to-back sentencing hearings for Millán and Cabezudo, with Millán appearing first. The sentencing judge calculated Millán's GSR as to Count One to be 24 to 30 months, and he noted that the statutory minimum for Count Two was seven years (84 months) of imprisonment. The judge then determined that an upward variance was appropriate and announced a sentence of 60 months of imprisonment on Count One and 120 months on Count Two, to run consecutively. Defense counsel for Millán did not object to the sentence, and Millán left the courtroom.
The district court then proceeded to sentence Cabezudo. Cabezudo's attorney argued at length that the court should accept the 84–month sentence recommended in the plea agreement. To this end, counsel for Cabezudo proceeded to summarize a text message exchange between Cabezudo and Millán that he believed showed that Cabezudo's decision to participate in the robbery was uncharacteristic and a “spur of the moment thing” that he was initially reluctant to do. According to counsel, although Cabezudo first suggested the robbery as a means for Millán to pay him back, when Millán asked him to join in the robbery, he hesitated and demonstrated reluctance to participate before eventually agreeing.
After counsel finished summarizing the messages, the sentencing judge asked if a written version of the text messages was available. Defense counsel could not find a copy of the text messages, so the sentencing judge said that he was willing to accept the summary as accurate. The government agreed that defense counsel's summary of the texts was accurate. At that point, however, the Probation Officer located a copy of the text messages—untranslated and in Spanish—and provided it to the sentencing judge. The judge then read the messages from the bench and briefly discussed them with counsel.
At the conclusion of Cabezudo's sentencing hearing, the district court announced that it was When defense counsel protested that the plea agreement's recommendation of 84 months was sufficient, the court responded in an unusual manner, commenting that “the sentence I imposed on the other gentleman perhaps is too high, and we're going to change them both.”
Then, immediately after Cabezudo's sentencing hearing ended, the court recalled Millán. During the course of a minute, the court confirmed that Millán's counsel had been present during Cabezudo's sentencing and noted that his previously announced sentence was “too high.” The judge then stated that “[o]n the basis of what we were able to get to know, on the basis of the sentence of the codefendant, and on the basis of what we have discussed, I think perhaps I should lower the sentence imposed on your client.” The district court proceeded to sentence Millán to 30 months on Count One and 90 months on Count Two for a combined sentence of 120 months of imprisonment. Millán's counsel thanked the court, and the proceeding concluded.
On May 7, 2012, Cabezudo filed a motion for reconsideration, arguing that his 114–month sentence was unreasonable in light of his history and the circumstances of the offense. The district court denied the motion, stating that “[t]he record at sentencing, and the text messages exchanged between the two defendants and read by the court confirm that this was a coldly-planned robbery.” This timely appeal followed.
On appeal, Cabezudo contends that the district court's reliance on untranslated, Spanish-language text messages at sentencing violated section 42 of the Jones Act, which 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 U.S.C. § 864 (“Jones Act” or “English-language requirement”). Additionally, he argues that his sentence is procedurally unreasonable because the district court failed to calculate the applicable GSR and failed to adequately explain its sentence. Millán contends that the district court erred by considering new, material information at his sentencing hearing that he had no meaningful opportunity to rebut. We address the claims of each Appellant in turn.
A. Cabezudo1. The Jones Act
Cabezudo argues that the district court violated the Jones Act by relying on untranslated, Spanish-language text messages during sentencing. He suggests that we must vacate his sentence because the untranslated messages could have been outcome-determinative and we are unable to review them on appeal. Before we can address the merits of Cabezudo's argument, however, we must first address the government's contention that Cabezudo effectively waived his Jones Act claim below and cannot appeal from a “situation he created.” In the government's view, Cabezudo's failure to object to the Spanish-language texts before the district court ought to constitute waiver because Cabezudo's counsel invited the error when he “first brought up the text messages and encouraged the court to review the same.” We disagree.
As an initial matter, we note that “it is the independent duty of the district court to make sure that ‘[a]ll pleadings ... be conducted in the English language.’ ” United States v. Rivera–Rosario, 300 F.3d 1, 6 (1st Cir.2002) (quoting 48 U.S.C. § 864). This...
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...significant time pressures felt by the district courts as they manage heavy dockets with limited resources,” see United States v. Millán–Isaac, 749 F.3d 57, 73 (1st Cir.2014), I am significantly concerned that such repeated claims of mistake and omission would hamper any defendant's ability......
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United States v. Sevilla-Oyola
...significant time pressures felt by the district courts as they manage heavy dockets with limited resources,” see United States v. Millán–Isaac, 749 F.3d 57, 73 (1st Cir.2014), I am significantly concerned that such repeated claims of mistake and omission would hamper any defendant's ability......
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