United States v. Sevilla-Oyola, s. 12–1264

• Court: United States Courts of Appeals. United States Court of Appeals (1st Circuit)
• Citation: 770 F.3d 1
• Docket Number: Nos. 12–1264,12–1463.,s. 12–1264
• Parties: UNITED STATES of America, Appellee, v. Carlos SEVILLA–OYOLA, a/k/a Carlitos Caridad, a/k/a Viejo, Defendant, Appellant.
• Decision Date: 16 October 2014

770 F.3d 1

UNITED STATES of America, Appellee
v.
Carlos SEVILLA–OYOLA, a/k/a Carlitos Caridad, a/k/a Viejo, Defendant, Appellant.

Nos. 12–1264
12–1463.

United States Court of Appeals, First Circuit.

Oct. 16, 2014.

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Rafael F. Castro Lang for appellant.

César S. Rivera–Giraud, Assistant United States Attorney, with whom Rosa Emilia Rodríguez–Vélez, United States Attorney, Nelson Pérez–Sosa, Assistant United States Attorney, Chief, Appellate Division, and Thomas F. Klumper, Assistant United States Attorney, were on brief, for appellee.

Before LYNCH, Chief Judge, TORRUELLA and THOMPSON, Circuit Judges.

Opinion

THOMPSON, Circuit Judge.

We grant the petition for panel rehearing, withdraw our previous opinion in this matter, see 753 F.3d 309 (1st Cir.2014), and substitute the opinion that follows.

The district judge twice conducted plea colloquies and thrice imposed sentences for Carlos Sevilla–Oyola (“Sevilla”), each one shorter than the last. Still dissatisfied, Sevilla asks us for another bite at the

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sentencing apple before a different district judge. To support his claim before this court, Sevilla says the judge lacked authority for actions taken after entry of the first sentence, and flaws in the initial plea colloquy warrant vacation of the first judgment. Alternatively, he says that even if the judge's later actions were authorized, they were plagued by additional errors.

Standing alone, these imperfections are not enough to justify setting aside the first sentence. But given the peculiar circumstances of this case—particularly the developments at and after oral argument—we ultimately do vacate and remand to the same judge for resentencing. Our reasoning follows. First, some background.

BACKGROUND

On July 14, 2010, Sevilla and 108 codefendants were indicted as part of a vast drug ring operating in and around several public housing projects in Bayamón, Puerto Rico. The indictment charged Sevilla with (1) conspiring to possess narcotics with intent to distribute, in violation of 21 U.S.C. §§ 841(a), 860 (“Count One”), and (2) aiding and abetting his coconspirators in the use and carriage of firearms in relation to a drug-trafficking crime, in violation of 18 U.S.C. § 924(c)(1)(A) (“Count Two”). It singled out Sevilla as a leader, manager, and enforcer for the drug-trafficking organization.

A. The First Guilty Plea

On August 9, 2011, Sevilla entered into an agreement with the government, pleading guilty to both counts of the indictment. The parties stipulated that Sevilla was accountable for conspiring to possess at least 2 but less than 3.5 kilograms of cocaine. This amount pegged Sevilla's base offense level at 28 under the U.S. Sentencing Guidelines (the “Guidelines”). See U.S.S.G. § 2D1.1. The parties further agreed that Sevilla would be subject to a two–level protected-location increase, see id. § 2D1.2(a)(1); a two–level leadership enhancement, see id. § 3B1.1(c); and a three-level acceptance-of-responsibility reduction, see id. § 3E1.1, resulting in a total offense level of 29. The parties did not come together on Sevilla's criminal-history category, but they agreed to forgo seeking further adjustments or departures.

In the agreement, Sevilla acknowledged that the district judge retained his sentencing discretion and was not bound by the parties' accord. Sevilla also waived his right to appeal if the judge “accept[ed] [the] agreement and sentence[d] [him] according to its terms, conditions, and recommendations.”

At the change-of-plea hearing that same day, the district judge advised Sevilla of the statutory penalties for the charged offenses based on the stipulated drug quantity: (1) a mandatory minimum term of five years and a maximum term of eighty years of imprisonment as to Count One, see 21 U.S.C. §§ 841(b)(1)(ii), 860 ; and (2) a consecutive minimum term of five years of imprisonment as to Count Two, see 18 U.S.C. § 924(c)(1)(A)(i).¹

The judge failed to inform Sevilla that Count Two carried the possibility of a life sentence. See United States v. Ortiz–Garcia, 665 F.3d 279, 282 n. 2, 285 (1st Cir.2011) (explaining that the maximum penalty for an offense under

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18 U.S.C. § 924(c)(1)(A) is life imprisonment and is derived from case law).² However, he did draw Sevilla's attention to the penalties mentioned in the plea agreement, which correctly stated that the maximum penalty for Count Two was life imprisonment, and Sevilla said he understood. The judge also neglected to tell Sevilla that he did not qualify for probation, a suspended sentence, or parole.³

B. Pitufo Enters the Scene

The U.S. Probation Office filed Sevilla's pre-sentence investigation report on November 18, 2011. It applied a four-level leadership enhancement, rather than the two levels agreed upon by the parties, bumping Sevilla's total offense level up to 31. Based on Sevilla's five prior convictions—including two violent felonies—it also labeled Sevilla a career offender and set his criminal-history category at VI.⁴

Shortly thereafter, Sevilla filed objections to the presentence report as well as a memorandum disputing the augmented leadership enhancement and his designation as a career offender. The Probation Office followed up with an addendum standing by its recommendations.

Then, on January 13, 2012, the Probation Office dropped a bombshell on the proceedings. In a second addendum to the presentence report, the Office alleged for the first time that Sevilla had murdered José Manuel Torres–Morales, a.k.a. “Pitufo” (or, in English, “Smurf”), in front of the federal courthouse in Hato Rey, Puerto Rico, on November 9, 2007. Pitufo was a fellow drug-ring member who was then under federal supervision. The brazen murder of a federal supervisee outside the courthouse rocked the Puerto Rican legal community to its core.

No one has ever been charged with this notorious murder. The Probation Office learned of Sevilla's alleged involvement from a cooperating witness, Carlos Manuel Burgos Rodriguez (“Burgos”), also a fellow drug-ring member, who claimed that

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Sevilla admitted to killing Pitufo.⁵ After reading the allegations in the second addendum, the district judge ordered the government to produce Burgos at Sevilla's sentencing hearing. Sevilla did not object to this order, did not argue the judge could not consider the Pitufo information, and did not ask for a continuation of the hearing.

C. The First Sentencing Hearing

Sevilla's first sentencing hearing took place on January 25, 2012. Burgos took the stand to testify about Sevilla's alleged role in the Pitufo murder. He was questioned by the government and cross-examined by defense counsel. Notably, defense counsel did not argue that Burgos's testimony was impermissible and instead objected only on the basis that she needed more time to prepare. The district judge denied the objection because the second addendum to the pre-sentence report, filed twelve days prior, provided sufficient notice, and because counsel had not sought a continuance before the hearing. Sevilla subsequently testified on his own behalf, disclaiming any involvement in the Pitufo murder and challenging the trustworthiness of Burgos's testimony.

At the hearing's conclusion, the judge made several findings. First, considering Sevilla's serious criminal past (especially his prior violent felony convictions), the judge confirmed Sevilla's designation as a career offender who belonged in criminal-history category VI.⁶ Then, considering Burgos's testimony about Sevilla's alleged role in the Pitufo murder, as well as Sevilla's testimony denying any involvement, the judge found that the career-offender and criminal-history-category-VI labels underrated the seriousness of Sevilla's criminal past.⁷ Accordingly, the judge departed upward to offense level 38, which is accompanied by a Guidelines sentence range of 360 months to life. Given the depraved nature and devastating impact of Sevilla's offenses, the judge determined that the highest available sentence was appropriate. Consequently, he sentenced Sevilla to life imprisonment.

The following day, the judge issued an order apportioning Sevilla's sentence into 327 months on Count One and life imprisonment

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on Count Two, to run consecutively.⁸ Judgment entered against Sevilla on January 26.

D. Subsequent Proceedings

A few days later, on February 1, 2012, Sevilla moved to set aside the judgment and to correct, reduce, and reconsider his sentence, citing Federal Rule of Criminal Procedure 35(a) (“Rule 35(a) ”).⁹ Sevilla said the district judge had erred at the sentencing hearing by considering the Pitufo murder where (1) that crime had not been included in the indictment, and (2) according to Sevilla, defense counsel had not been given adequate time to prepare to refute the...