United States v. Cortés-Medina

• Decision Date: 12 May 2016
• Docket Number: No. 14–1101.,14–1101.
• Citation: 819 F.3d 566
• Parties: UNITED STATES of America, Appellee, v. Héctor CORTÉS–MEDINA, Defendant, Appellant.
• Court: U.S. Court of Appeals — First Circuit

819 F.3d 566

UNITED STATES of America, Appellee,

v.Héctor CORTÉS–MEDINA, Defendant, Appellant.

No. 14–1101.

United States Court of Appeals, First Circuit.

May 12, 2016.

Heather Clark, with whom Law Office of Heather Clark was on brief, for appellant.

Francisco A. Besosa–Martínez, 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 LYNCH, SELYA and LIPEZ, Circuit Judges.

SELYA, Circuit Judge.

In this sentencing appeal, defendant-appellant Héctor Cortés–Medina insists that his 168–month sentence is both procedurally flawed and substantively unreasonable. After careful consideration, we affirm the sentence.¹

This appeal has its roots in an indictment returned by a federal grand jury sitting in the District of Puerto Rico. The indictment alleged that the defendant served as an "enforcer" for a drug-trafficking ring and charged him as a participant in a conspiracy to possess with intent to distribute controlled substances within 1, 000 feet of a protected location. See 21 U.S.C. §§ 841(a)(1), 846, 860.

In due course, the defendant entered into a non-binding plea agreement (the Agreement) with the government. The Agreement provided that, in exchange for his guilty plea to the conspiracy charge and to a related forfeiture allegation, the government would recommend a 121–month prison term; provided, however, that the defendant's criminal history category (CHC) was IV or lower. The district court accepted the plea, and the probation office prepared a presentence investigation report (PSI Report). Neither side objected to anything contained in the PSI Report, which (among other things) recommended a series of guideline calculations culminating in a total offense level of 30, a CHC of IV, and a guideline sentencing range (GSR) of 135 to 168 months.

At the disposition hearing, the government recommended the agreed 121–month sentence, even though that sentence was below the nadir of the GSR. The district court heard statements from defense counsel and the defendant himself, and the court acknowledged the parties' joint sentencing recommendation. The court then engaged in a dissection of the defendant's criminal history.

To begin, the court examined the four convictions on which the defendant's CHC was premised. It then catalogued several arrests that had terminated either in acquittals or in dismissals. These included two charges for first-degree murder, two charges relating to destruction of evidence, and an assortment of charges for drug and firearm violations.² Noting that none of these charges had resulted in any punishment, the district court expressed frustration. The court said: "This is what I just don't understand, how these things are happening." It then added, cryptically, that "lightning doesn't strike twice in the same place."

The district court proceeded, without objection, to ratify and adopt the guideline calculations limned in the PSI Report. It stressed that the defendant was an enforcer in the drug-trafficking organization, adding "[w]e know what that means." In the end, the court sentenced the defendant to a term of immurement at the apex of, but within, the GSR: 168 months.

This timely appeal ensued. Although the Agreement contains a waiver-of-appeal provision, that provision, by its terms, is operative only if the court sentences the defendant in accordance with the Agreement's "terms, conditions and recommendations."

Because the sentence imposed by the district court exceeded the sentence recommended in the Agreement, the waiver-of-appeal provision is a dead letter. See, e.g., United States v. Fernández–Cabrera, 625 F.3d 48, 51 (1st Cir.2010).

Overall, "[a]ppellate 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). The "process is bifurcated: we first determine whether the sentence imposed is procedurally reasonable and then determine whether it is substantively reasonable." United States v. Clogston, 662 F.3d 588, 590 (1st Cir.2011). Generally, both aspects of this review are for abuse of discretion. See Gall v. United States, 552 U.S. 38, 46, 128 S.Ct. 586, 169 L.Ed.2d 445 (2007) ; United States v. Martin, 520 F.3d 87, 92 (1st Cir.2008). When assessing the procedural reasonableness of a sentence, however, appellate review is more nuanced: we afford de novo consideration to the sentencing court's interpretation and application of the sentencing guidelines and assay the court's factfinding for clear error. See Flores–Machicote, 706 F.3d at 20.

These standards of review are altered when an objection is not preserved in the court below. In that event, review is for plain error. See United States v. Duarte, 246 F.3d 56, 60 (1st Cir.2001). Plain error review is not appellant-friendly. It "entails four showings: (1) that an error occurred (2) which was clear or obvious and which not only (3) affected the defendant's substantial rights, but also (4) seriously impaired the fairness, integrity, or public reputation of judicial proceedings." Id.

Against this backdrop, we turn to the defendant's claims of error: three procedural objections and a plaint of substantive unreasonableness. We address these matters sequentially.

The defendant first argues that the district court erred by taking into account several dismissed or acquitted charges because the facts underlying those charges were not proven by a preponderance of the evidence. He says that he preserved this argument by means of a statement contained in the "Background of the Defendant" section of his sentencing memorandum:

As evidence showed in the court files, that were examined, many of the indictments got dismissed because of lack of proof related to the supposed direct participation of the defendant and in others there was no proof at all.

During the investigations as is shown as well in the Pre–Sentence Report the defendant has been accused of many different illegal acts as, for which many of these accusation [sic] were dismissed because of insufficient evidence.

However, no mention of the dismissed or acquitted charges was made in the "Application of Law and Arguments" section of the defendant's sentencing memorandum.

At the outset of the disposition hearing, the district court confirmed with defense counsel that the defendant had no objections to the PSI Report. During that hearing, defense counsel did not mention the dismissed or acquitted charges at all.

Generally, a party has 14 days after receipt of a presentence report within which to object in writing to, inter alia, "material information" contained in that report. Fed.R.Crim.P. 32(f)(1). A failure to object constitutes a waiver of any objection to such information. See United States v. Serrano–Mercado, 784 F.3d 838, 846, 847 (1st Cir.2015) ; United States v. Turbides–Leonardo,

468 F.3d 34, 37 (1st Cir.2006). Such a waiver occurred here.

Nor did the passing reference to the charges in the background section of the sentencing memorandum cure this omission. That reference, particularly when not followed up by some corresponding reference in the argument section of the memorandum, did nothing to call to the sentencing court's attention that the defendant objected to any consideration of those parts of his arrest record that had not ripened into convictions. We conclude, therefore, that the defendant's argument is unpreserved and engenders plain error review.³

We turn to that review. The defendant bases his claim of error on the Supreme Court's opinion in United States v. Watts, 519 U.S. 148, 157, 117 S.Ct. 633, 136 L.Ed.2d 554 (1997) (per curiam). In that case, the Court concluded that, when imposing an offense-level enhancement, a sentencing court may consider acquitted conduct only if that conduct is proven by a preponderance of the evidence.⁴ See id. at 153, 157, 117 S.Ct. 633.

Here, however, the sentencing court did not use dismissed or acquitted conduct to construct an offense-level enhancement. Instead, the court referred to the defendant's prolific arrest record, which was laid out in the PSI Report and not contested by the defendant, solely for the purpose of determining at what point within the GSR the defendant's sentence should be set.

Admittedly, it is not unreasonable to read Watts as an indication that the Supreme Court might well hold that a sentencing court may not accord any significance to a record of multiple arrests and charges without convictions unless there is adequate proof of the conduct upon which the arrests or charges were predicated. Nevertheless, our own precedent contains dicta, repeated several times, positing that a series of arrests "might legitimately suggest a pattern of unlawful behavior even in the absence of any convictions." United States v. Lozada–Aponte, 689 F.3d 791, 792 (1st Cir.2012) (quoting United States v. Zapete–Garcia, 447 F.3d 57, 61 (1st Cir.2006) (internal quotation marks omitted)); accord United States v. Ocasio–Cancel, 727 F.3d 85, 91–92 (1st Cir.2013). Today, we caution district courts against placing weight on such speculation. But in the absence of such a prior warning, we cannot see how the sentencing court in this case plainly erred.

The defendant's next claim of error insists that the district court abused its discretion by not adequately considering the factors set forth in 18 U.S.C. § 3553(a). Our review of this claim is for abuse of discretion. See Gall, 552 U.S. at 51, 128 S.Ct. 586.

The defendant's claim centers on his assertion that the district court failed to consider not only that he had already served time for a matter incident to the offense of conviction but also that he had been rehabilitated. But these potentially mitigating factors were before the district court at sentencing; indeed, they were vigorously pressed by...