United States v. Cirilo-Munoz

United States Court of Appeals
For the First Circuit

No. 05-2469

UNITED STATES,

Appellee,

v.

ERNESTO CIRILO-MUÑOZ, a/k/a Nesty,

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF PUERTO RICO

[Hon. Héctor M. Laffitte, Senior U.S. District Judge]

Before

Torruella, Lynch, and Lipez,
Circuit Judges.

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.

October 2, 2007
 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.

-2-
 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

-3-
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 re-sentencing 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

1
Through these appeals we have been assuming that the murderer
was sentenced to twenty-two years imprisonment, and it is
technically correct that he was sentenced to a "total of 22 years."
In fact, however, the Government had recommended a sentence of only
fifteen years for Counts 1, 2, and 4 (with a mandatory sentence of
five years for count 3). See United States of America, Motion
Pursuant to Section 5K1.1 of the United States Sentencing
Commission Guidelines Manual and Title 18 of U.S.C. Section
3553(e), United States v. Lugo-Sánchez, CR-94-363, at 5, ¶ 3j
(Mar. 5, 1996). Ultimately, Lugo was sentenced to only seventeen
years for Count 1 (aiding and abetting in the murder of the officer
while trying to avoid prosecution for drug offenses), Count 2
(aiding and abetting in carjacking the officer's car in the process
of which he was murdered), and Count 4 (aiding and abetting in the
possession with the intent to distribute more than 500 grams of
cocaine). See Transcript, Sentencing of José Lugo-Sánchez, United
States v. Lugo-Sánchez, CR-94-363 ("Lugo Sentencing Tr.") at 27
(D.P.R. March 5, 1996). Thereafter, the district judge imposed an
additional mandatory consecutive sentence of five years under Count
3 (aiding and abetting in the use of a firearm while committing a
crime of violence). Id. The only count for which Cirilo-Muñoz was
found guilty by the jury, and thus the only one appropriate for a
consideration of his allegations as to disparity in sentencing, was
Count 1, for which he was first sentenced to life imprisonment, and
on remand, to twenty-seven years imprisonment.
2
"Based on the defendant's role in the offense, decrease the
offense level as follows: . . . (b) If the defendant was a minor
participant in any criminal activity, decrease by 2 levels."
U.S.S.G. § 3B1.2(b). The Sentencing Guidelines define a minor
participant as a defendant "who is less culpable than other
participants, but whose role could not be described as minimal."
U.S.S.G. § 3B1.2 app. note 5.

-4-
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

3
Cirilo-Muñoz was also sentenced to four years of supervised
release, ordered to participate in a drug-testing program, and was
assessed $50.00 in penalties. See Amended Judgment in a Criminal
Case, United States v. Cirilo-Muñoz, CR-94-363 at 3-5 (D.P.R.
Aug. 22, 2005).

-5-
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-

4
"Based on the defendant's role in the offense, decrease the
offense level as follows: . . . (a) If the defendant was a minimal
participant in any criminal activity, decrease by 4 levels."
U.S.S.G. § 3B1.2(a). The Sentencing Guidelines define minimal
participants as "defendants who are plainly among the least
culpable of those involved in the conduct of a group." U.S.S.G.
§ 3B1.2 app. note 4.
5
"The court shall impose a sentence sufficient, but not
greater than necessary, to comply with the purposes set forth in
paragraph (2) of this subsection. The court, in determining the
particular sentence to be imposed, shall consider--
(1) the nature and circumstances of the offense and the history
and characteristics of the defendant;
(2) the need for the sentence imposed--
(A) to reflect the seriousness of the offense, to promote
respect for the law, and to provide just punishment for the
offense;
(B) to afford adequate deterrence to criminal conduct;
(C) to protect the public from further crimes of the
defendant; and
(D) to provide the defendant with needed educational or
vocational training, medical care, or other correctional treatment
in the most effective manner;
(3) the kinds of sentences available;
(4) the kinds of sentence and the sentencing range established
for--
(A) the applicable category of offense committed by the
applicable category of defendant as set forth in the guidelines--
(i) issued by the Sentencing Commission pursuant to section
994(a)(1) of title 28, United States Code, subject to any
amendments made to such guidelines by act of Congress (regardless
of whether such amendments have yet to be incorporated by the
Sentencing Commission into amendments issued under section 994(p)
of title 28); and

-6-
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

Gothe to the effect that, "[n]othing is more damaging to a new

(ii) that, except as provided in section 3742(g), are in
effect on the date the defendant is sentenced; or
(B) in the case of a violation of probation or supervised
release, the applicable guidelines or policy statements issued by
the Sentencing Commission pursuant to section 994(a)(3) of title
28, United States Code, taking into account any amendments made to
such guidelines or policy statements by act of Congress (regardless
of whether such amendments have yet to be incorporated by the
Sentencing Commission into amendments issued under section 994(p)
of title 28);
(5) any pertinent policy statement--
(A) issued by the Sentencing Commission pursuant to section
994(a)(2) of title 28, United States Code, subject to any
amendments made to such policy statement by act of Congress
(regardless of whether such amendments have yet to be incorporated
by the Sentencing Commission into amendments issued under section
994(p) of title 28); and
(B) that, except as provided in section 3742(g), is in effect
on the date the defendant is sentenced.
(6) the need to avoid unwarranted sentence disparities among
defendants with similar records who have been found guilty of
similar conduct; and
(7) the need to provide restitution to any victims of the
offense."

-7-
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.

6
Gothe, Spruche in Prosa.
7
The agents' Report (also known as a "302 Report") is part of
the record in this case.

-8-
 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

8
See Transcript of "Testimony of René F. Medina, Grand Jury
Investigation, Before the Grand Jury, Federal Building, Hato Rey,
Puerto Rico" (D.P.R. November 23, 1994). This transcript is also
in the record of the case.
9
See Trial Transcript, United States v. Cirilo-Muñoz, CR-94-
363 ("Trial Tr.") at vol. VI, pp. 654-61, 664-69, 674-75 (D.P.R.
1995).

-9-
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

-10-
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 before he testified before

the grand jury,10 he again met with Lugo on November 22 in the

Guaynabo Metropolitan Detention Center, a federal facility, in the

presence of Lugo's attorney and the Assistant U.S. Attorney working

on the case. At that time, Lugo stated that his earlier statements

"on November 9, 1994 were accurate as to his involvement with

Ernesto Cirilo-Muñoz . . . . [I]n the murder of Officer Mejías

. . . however Lugo . . . indicated that he had withheld information

on other subjects that own and operate the drug point." The report

further indicates that Lugo said that his previous statements to

the F.B.I. about what Cirilo-Muñoz had told him on November 1

regarding Mejías, "had not been accurate." Lugo stated that what

Cirilo-Muñoz had actually said was, "[F]ollow us so we can take

this man down." Lugo stated that he had been traveling with "Tony"

in a black Oldsmobile following Cirilo-Muñoz, Saúl, and Mejías,

when Lugo asked Tony why Cirilo-Muñoz and Saúl were taking Mejías,

and Tony responded, "[T]o take him down." Lugo said that after

10
This report is also in the record of the case.

-11-
Cirilo-Muñoz and Saúl pushed the Suzuki off the road and boarded

the Oldsmobile, Cirilo-Muñoz stated, "Boy, I gave him one in the

stomach and three on the head." Lugo stated that Cirilo-Muñoz then

said, "All of you know how this is, whoever talks or snitches,

knows what will be coming." Lugo also told Agent Medina that he

was surprised to see Cirilo-Muñoz at the drug point because

approximately four months earlier, Cirilo-Muñoz left the area

because he failed to pay for an undisclosed amount of drugs that he

consumed, and ever since, had not been at the drug point. Lugo

stated that it was common knowledge that specific instructions had

been given that Cirilo-Muñoz was to be beaten up if he showed up,

and thus Lugo was of the opinion that Cirilo-Muñoz should pay off

his drug debt by killing Mejías.

At a minimum, by the time the Government sought its

indictment against Cirilo-Muñoz, and Agent Medina appeared before

the grand jury to repeat what Lugo had told him in the course of

three interviews, it should have been apparent that Lugo was

unreliable and less than truthful. It is obvious that the

Government was uneasy with the information provided by Lugo up to

then, for even though the investigation, which had been conducted

by agents with considerable experience,11 resulted in an indictment,

the investigation continued even after the indictment was issued.

11
For example, Agent Pérez had seven years experience with the
F.B.I. Trial Tr. at vol. VII, p. 1062, l. 6.

-12-
 Thus, on December 19 to 20, 1994, Agents Medina and

Orlando Pages12 again met with Lugo at the federal detention

center,13 during portions of which Lugo's defense lawyer and the

Assistant U.S. Attorney were also present. During this interview,

Lugo gave a third version of what transpired on November 1, 1994

regarding the murder of Police Officer Mejías and of Cirilo-Muñoz's

involvement, or more accurately, his lack of involvement.

Lugo started by explaining that he had become indebted to

"Chispo," a childhood friend. Chispo supplied the drugs that Lugo

sold at the drug "punto"14 in front of a small store known as "El

Cafetín Ideal." Lugo had become indebted because in addition to

selling drugs, he was using drugs and not paying for them. Lugo

said that Chispo became upset with him, and Lugo's father had to

bail him out by paying the money he owed. Thus, Lugo did not work

the "punto" for about three weeks, after which he convinced Chispo

to give him back his job and was assigned the 9:00 a.m. to 6:00

p.m. shift, Mondays through Wednesdays. Thereafter, he continued

12
Agent Pages had nine years extensive experience with the
F.B.I. Trial Tr. at vol. VII, pp. 880-81.
13
The interview is memorialized in a nine-page 302 report dated
December 20, 1994, subscribed to by both agents. The following
discussion is based entirely on that report.
14
Literally "point", which in drug parlance means "a place or
locale where drugs are sold," usually outdoors on a street corner
or the like.

-13-
selling drugs, "[u]ntil he killed Ivan Mejías Hernández on

November 1, 1994."15

Lugo said that he first saw Mejías in October in front of

Cafetín El Ideal. Thereafter, another drug dealer advised Lugo

that Mejías had tried to purchase a "package" of cocaine16 from him,

but he did not sell it to him because he saw a revolver in Mejías's

vehicle, a white Suzuki. Lugo stated that he saw Mejías again at

El Ideal during the second week in October and sold him five small

plastic bags of cocaine for fifty dollars. On Friday of the second

week in October, Lugo saw Mejías for the third time at El Ideal.

Mejías was looking for a person named Luis Navarro and left when he

did not find him. By this time, Lugo stated, he and the other

dealers running the drug point at Cafetín El Ideal had become

suspicious of Mejías because he had purchased large amounts of

drugs immediately after he met a dealer there. Because of this,

Lugo and these dealers were of the opinion that Mejías was a snitch

or undercover policeman. During the last week in October, Chispo

told Lugo that if Mejías came back to Cafetín El Ideal and stayed

after dark, "to take him and kill him." On Halloween night, which

was the day before Mejías's murder, Chispo advised Lugo for the

15
Agents Medina & Pages, 302 Report, December 20, 1994, at 1.
16
A "package" in the illegal drug trade contains ten small
plastic bags filled with cocaine.

-14-
second time that if Mejías came to the drug point at Cafetín El

Ideal to make sure to take him and kill him.

Lugo explained that on November 1, 1994, he started

selling drugs in front of Cafetín El Ideal at about 9:00 a.m.

Between 9:00 a.m. and 2:00 p.m., others arrived at Cafetín El

Ideal, including Saúl, Cirilo-Muñoz, and Tony. Sometime between

2:15 and 2:30 p.m., Mejías arrived in his Suzuki. He went into the

Cafetín and purchased a bottle of rum. Mejías then called a person

named "Navarro" on the telephone, whom he claimed owed him money.

When Navarro showed up, he and Mejías had a heated argument and

Navarro left on foot. Mejías then went to his vehicle where he

retrieved a revolver and then put it back in his car, before

following Navarro on foot. Lugo and some of the dealers ran after

him to see what would happen, but only saw Mejías and Navarro

talking to each other.

According to Lugo, Mejías returned to El Ideal, and at

this time, Lugo decided to kill him as instructed by Chispo. Lugo

walked to a small schoolhouse located next to El Ideal where Tony,

Mejías, and a person named "David" were standing. Lugo asked them

to accompany him to the back of a residence located in front of El

Ideal owned by a person named "Juan." Once there, an argument

ensued between Mejías and Lugo, Mejías claiming that he read Lugo's

lips earlier that day when he saw Lugo tell David to accept

Mejías's invitation to go shopping with him at the Plaza Carolina

-15-
Mall in order to learn more about him. Lugo then accused Mejías of

being a snitch, to which Mejías did not react, whereupon Lugo asked

Tony for his car keys. Lugo said he then went to Tony's car, a

black Oldsmobile, where he retrieved a Colt .38 caliber revolver

from the trunk. Lugo returned to El Ideal, where he advised Saúl

that he was going to take Mejías from the area in order to kill

him. Saúl advised Lugo that he should approach Mejías with the

gun, and that he would go around the house and set upon Mejías from

the other side to take his car keys. They would then search

Mejías's car for the revolver Lugo had seen.

Lugo and Saúl walked to the back of Juan's house and

carried out their plan. Lugo approached Mejías with the revolver

and asked him for his car keys, which Saúl took. Cirilo-Muñoz,

Elio, and Saúl went to the car and searched it while Mejías sat on

the back steps of the residence, watched by Lugo. After Mejías's

car was searched and his gun retrieved, Lugo escorted Mejías to the

Suzuki and told him to leave the area and that he never wanted to

see him again. Mejías got into his car and started the engine, but

did not drive away. A person named "Yito" walked over to Lugo and

said to him, "No, you've got to take him." Lugo apologized to

Mejías, and made him sit in the back seat behind the driver, while

Saúl sat in the driver's seat and Lugo sat in the back with Mejías.

Tony walked over to Lugo and said he and Cirilo-Muñoz would follow

in Tony's car so they could pick them up after they killed Mejías.

-16-
 Lugo, Saúl, and Mejías drove away in Mejías's car.

Cirilo-Muñoz and Tony followed with Cirilo-Muñoz driving. As the

Suzuki drove away, Mejías turned toward Lugo and pled with him not

to kill him, since he had a six-month old baby boy, to which Lugo

responded, "I have to do it," firing once into Mejías's stomach.

On impact, Mejías grabbed his stomach and opened his mouth, while

gasping for breath, whereupon Lugo fired a second shot into the

right side of Mejías's head. Saúl, who was driving the car, turned

to complain about the noise and lost control of the car in a curve,

ending up in front of someone's driveway. In the process Mejías's

body fell toward Lugo, who moved, letting the cadaver fall

lengthwise on the seat. Thereafter, Lugo sat on top of Mejías's

corpse until the car had stopped. Upon noticing he was covered

with Mejías's blood, Lugo moved to the front seat of the Suzuki.

Shortly afterwards, the Suzuki stopped on the road past

a country store. Yito drove up on a motorcycle and asked what had

happened to Mejías. Lugo told him he had killed him, to which Yito

nodded his head in approval. Yito drove away and Lugo noticed

Cirilo-Muñoz and Tony driving towards them in Tony's black

Oldsmobile. Saúl and Lugo drove off, followed by the Oldsmobile

with Tony and Cirilo-Muñoz. They all continued until reaching a

deserted area where Cirilo-Muñoz and Tony pulled in front of Saúl

and Lugo's car and stopped.

-17-
 Tony got out and walked towards Lugo. Lugo handed him

the gun he used to shoot Mejías. Tony asked Lugo if he made sure

Mejías was dead; Lugo answered that had shot Mejías twice. Tony

then went into the Suzuki and shot Mejías twice in the back of the

head. Lugo got into the black Oldsmobile with Cirilo-Muñoz, Tony

got into the Suzuki with Saúl, and both cars left with the Suzuki

leading the way.

At that point Cirilo-Muñoz asked Lugo how he killed

Mejías, but Lugo, who was under the influence of cocaine, would not

answer. Cirilo-Muñoz told Lugo that, earlier, Tony had stated that

if Lugo did not make sure that Mejías was dead, Tony would

personally make sure he was. They eventually found the quarry that

Lugo was looking for and Saúl and Tony pushed the Suzuki over the

side of the hill with Mejías's body inside. Saúl and Tony ran and

got into the Oldsmobile with Cirilo-Muñoz and Lugo. Again, while

they were driving away from this scene, Cirilo-Muñoz, who was

driving the car, asked Saúl, Lugo, and Tony how they killed Mejías,

but no one would answer him. Instead Lugo counted the money he

took from Mejías's body, which totaled two hundred and forty

dollars, and divided it equally among the occupants of the car.

Cirilo-Muñoz drove Lugo to his home, and they separated.

Lugo stated that he burnt this bloody clothes, putting the buttons

and zipper in the trash as they would not burn.

-18-
 Lugo then told Agent Medina that he had switched roles

with Cirilo-Muñoz during his original account of the events because

he feared Cirilo-Muñoz least of those involved. Lugo also thought

Cirilo-Muñoz would be supported least by the drug dealers involved.

I have taken the trouble of detailing these incidents

because they are important in several ways. First of all, this

last version of events is substantially different than the prior

statements given by Lugo. More importantly, it is different in

ways that significantly bolster Cirilo-Muñoz's present contention

as to his minimal participation in the crime for which he was found

guilty. Secondly, I wish to point to the fact that the Government

never resubmitted this new evidence to the grand jury

notwithstanding that it was this new version of events that the

Government later relied on in its case against Cirilo-Muñoz. It

would seem that had the Government's prime concern been seeing that

justice was done, upon acquiring this new knowledge of Lugo's

murder of Mejías and Cirilo-Muñoz's attenuated role therein, its

duty was to reconvene the grand jury to seek a superseding

indictment charging Cirilo-Muñoz with being an accessory after the

fact, 18 U.S.C. § 3, the crime which the evidence showed he

actually committed, rather than as an aider and abettor of Mejías's

murder. In fact, Lugo's testimony at trial substantially tracked

his December 19-20 statement to the F.B.I., except that, as I will

-19-
presently detail, his actual testimony is even more favorable to

Cirilo-Muñoz's contentions.17

Lugo, who was eligible to receive the death penalty for

the murder of Mejías during the commission of the carjacking, 18

U.S.C. § 2119(3), and for his murder of a police officer, 21 U.S.C.

§ 848(e)(1)(B), pleaded guilty to the charges against him pursuant

to an agreement entered with the Government whereby he agreed "to

cooperate fully and truthfully with the United States" including

"to testify as a witness before any Grand Jury . . . and at any

hearing or trial, when called upon to do so by the United States".18

The agreement is "conditioned only upon [Lugo] providing full,

complete and truthful cooperation," and he is "only required to

tell the complete truth."19 If he failed "in any way to fulfill

completely all obligations under this agreement," including

"withholding evidence, or otherwise . . . not [being] completely

truthful with the United States . . . or in testimony before a

Grand Jury or at trial," then the Government would be released from

17
See Trial Tr. at vol. V, p. 546 - vol. VII, p. 827.
18
Plea and Cooperation Agreement, United States v. Lugo-
Sánchez, CR-94-363 ("Plea and Cooperation Agreement") at 4, ¶ 7a
(D.P.R. September 11, 1995). It is signed by Lugo, his attorney,
and the Assistant U.S. Attorney. They also subscribe to an
attached document entitled "Government's Version of the Facts"
which appears to be a verbatim copy of Agents Medina and Page's 302
Report from December 19-20, 1994, the so-called third version of
events which was never submitted to the grand jury.
19
Plea and Cooperation Agreement at 5, ¶ 8.

-20-
its obligations under the agreement and Lugo could be fully charged

with the crimes to which he confessed, as well as perjury.20 Upon

acceptance of this agreement by the court, the Government agreed

that Lugo would not be charged with any other crimes committed by

him about which he had informed the Government, "if he testifies

truthfully at any grand jury, trial or other proceeding."21 In

exchange for Lugo's plea and agreement, the Government further

"agreed to recommend to the Court, at the time of sentencing, that

a downward departure is appropriate and [to] inform the Court of

the extent of cooperation provided by defendant [Lugo]."22

Lugo thus became the star for the prosecution, testifying

against his co-defendants, including Cirilo-Muñoz, commencing

September 18, 1995, the fifth day of the trial.23 His testimony

substantially consisted of a reiteration of the third version of

the events surrounding his murder of Agent Mejías on November 1,

1994,24 in which he basically retracted his implication of Cirilo-

Muñoz as the murderer and principal, and admitted it was he who

20
Id. at 5-6, ¶ 9.
21
Id. at 8, ¶ 14.
22
Id. at 8-9, ¶ 16.
23
See Trial Tr. at vol. V., pp. 547 - vol. VII, p. 827.
24
See id. at vol. V, p. 556, ll. 6-16; id. at vol. V, p. 558,
ll. 14-19.

-21-
killed Mejías and led this criminal enterprise.25 I will thus not

repeat what has been amply detailed. However, Lugo's trial

testimony further clarified several points which are important in

absolving Cirilo-Muñoz from the shadow of wrongdoing cast on him by

the chain of events I have described. These clarifications are

relevant to the issue of the reasonableness of the sentence imposed

because they not only establish that Cirilo-Muñoz lacked prior

knowledge that Mejías would be killed by Lugo, but that in any

event, his participation in the events was minimal prior to

Mejías's murder by Lugo. Furthermore, it is important to emphasize

that this is the uncontradicted evidence of the Government's own

witness, a witness who has hanging over his head the threat of

losing a benevolent sentencing arrangement if he does not testify

truthfully. Thus, rather strong proof that Lugo testified

truthfully, and that the Government believes that he did, lies in

the fact that the Government has not reneged on the plea agreement.

This makes the Government's actions regarding Cirilo-Muñoz's

sentence even more egregious.

The testimony of Lugo at trial established that besides

Lugo, only Tony knew about the existence of a gun, having been

called on the telephone by Lugo, told of Lugo's intention to kill

25
See id. at vol. V, p. 557, ll. 2-11.

-22-
Mejías,26 and asked to bring the gun to El Ideal on November 1,

shortly before the assassination.27

Lugo's testimony further established that after Lugo's

confrontation with Mejías behind Juan's house, Lugo left with Tony

and David, and proceeded alone towards El Ideal, where Cirilo-Muñoz

was, as well as Yito and several young men.28 Because Lugo was mad

at Mejías as a result of the incident with him behind Juan's house,

he invited Cirilo-Muñoz to hit Mejías.29 This offer was rejected30

and Lugo "started getting angrier, angrier and angrier," and went

to Tony, who had remained behind Juan's house, got the keys to the

Oldsmobile, and retrieved the gun from under the rear seat.31 Lugo

then returned the car keys to Tony and went back to El Ideal by

himself,32 where he encountered Cirilo-Muñoz, Yito, Saúl, and

several others.33 The gun was in Lugo's waist, with his shirt

pulled out and covering the firearm.34 Upon encountering Saúl at

26
See id. at vol. V, p. 578, ll. 21-25.
27
See id. at vol. V, p. 579, ll. 13-15.
28
Id. at vol. V, p. 592, ll. 21-25.
29
Id. at vol. V, p. 593, ll. 1-5
30
If Cirilo-Muñoz refused to join in the beating up of Mejías,
is it logical that he would shortly thereafter join in his murder?
31
Id. at vol. V, p. 593, ll. 4-13.
32
Id. at vol. V, p. 593, l.23 - p. 594, l.2.
33
Id. at vol. V, p. 594, ll. 1-2.
34
Id. at vol. V, p. 594, ll. 3-14.

-23-
Cafetín El Ideal, Lugo again tried to get them to beat up Mejías,35

but again the record does not show any takers. Saúl then suggested

that he would go around Juan's house and come up behind Mejías

while Lugo pointed the gun at him, and take Mejías' car keys away

from him,36 and "that's how it was."37 Then, everyone behind Juan's

house (Saúl, Tony and David Silva) left.38 While this was

happening, Cirilo-Muñoz was "in the business", i.e., the Cafetín El

Ideal.39

Lugo testified that he proceeded alone to the Suzuki with

Mejías in front of him, having warned him not to try anything, as

35
Because of translation problems, a recurrent problem that is
apparent throughout this record, it is not clear if Lugo is
referring to all of those who were present, of just to Saúl. The
transcript reads as follows:

LUGO: There I encountered Saúl [Mangual-] Corchado and
the ones I've mentioned, to fire them up.

THE REPORTER: "To fire them up?"
. . .
LUGO: I again mentioned this to him to "prenderlo,
prenderlo, so that we could all hit him."

THE INTERPRETER: "Prenderlo, not fire them up."

Id. at vol. V, p. 594, ll. 16-22 (emphasis added).
36
Id. at vol. V, p. 595, ll. 7-13.
37
Id. at vol. V, p. 595, ll. 15-21.
38
Id. at vol. V, p. 595, l. 23; p. 596, ll. 9-11.
39
Id. at vol. V, p. 596, ll. 12-13.

-24-
he was armed.40 Saúl, Tony, Junito, and David were at the Suzuki,

searching the car for Mejías's weapon, and had found it,41 whereupon

Lugo waited for them to get away from the car.42 Lugo then told

Mejías to get in, and "not come around anymore ever."43 Before

Mejías could leave, someone told Lugo that he "had to take him

[i.e., Mejías] away; that he could come back."44 Lugo opened

Mejías's door and told Mejías to get into the rear seat and

signaled Saúl to get into the driver's seat.45 Lugo went around,

opened the door and got into the rear, and once inside the car,

pulled out the gun he had been carrying in his waist.46 Saúl

started the car, and he and Lugo left with Mejías in the Suzuki,47

and "six or ten seconds" later Lugo shot twice at Mejías, once into

his stomach and once into his right temple.48 Before Lugo fired the

40
Id. at vol. V, p. 596, l. 21 - p. 597, l. 1.
41
Id. at vol. V, p. 596, ll. 15-19.
42
Id.
43
Id. at vol. V, p. 597, ll. 3-5.
44
Id. at vol. V, p. 598, l. 12 - p. 599, l. 1.
45
Id. at vol. V, p. 599, ll. 3-7.
46
Id. at vol. V, p. 599, ll. 9-19.
47
Id. at vol. V, p. 599, ll. 21-23.
48
Id. at vol. V, p. 600, l. 17 - p. 601, l. 19.

-25-
shots, Mejías asked him "not to kill him, that he had a six-month

baby girl," but he "didn't pay attention to him."49

From the above testimony of the Government's star witness

-- the only testimony presented by the Government regarding Cirilo-

Muñoz's state of mind -- there is simply no evidence that Cirilo-

Muñoz knew what was going to happen or was happening. And there is

certainly not a scintilla of proof that he intentionally aided in

these events; the fact that he was absolved of the carjacking and

weapons charges merely confirms this asseveration. Although Lugo

testified that he had seen Cirilo-Muñoz before, "real close to the

[Suzuki]" when Tony, Saúl, Junito and David were searching it for

Mejías's weapon, he stated that Cirilo-Muñoz was "not searching

inside the car" -- he was just "looking."50 Lugo further stated,

however, that when he and Saúl left in the Suzuki with Mejías,

Cirilo-Muñoz and Tony "were at the El Ideal Cafetín -- or Cafetín

El Ideal."51 Lugo later testified that after he had killed Mejías,

farther down the road, Saúl came to a stop near a business called

"El Cano's," and when he "looked toward the front, Cirilo[-Muñoz]

and Tony Ynoa were in the -- were in the Oldsmobile."52 Thereafter,

"[t]hey followed behind [the Suzuki]. [Lugo] really [doesn't] know

49
Id. at vol. V, p. 600, ll. 23-25.
50
Id. at vol. V, p. 597, ll. 16-19 (emphasis added).
51
Id. at vol. V, p. 600, ll. 10-15 (emphasis added).
52
Id. at vol. V, p. 602, ll. 8-24.

-26-
whether they had agreed -- they agreed to follow because [Lugo] did

not hear anything."53 I will not discuss the events that transpired

thereafter, as they are irrelevant to the central issue of aiding

and abetting in the murder of Mejías, which require proof of what

transpired before the murder took place. Suffice it to say that the

evidence in this record does not have the requisite prior knowledge

by Cirilo-Muñoz.

II. The Standard: What is the function of a court of appeals in
determining the validity of a criminal sentence?

As recently restated by the Supreme Court, "[t]he federal

courts of appeals review federal sentences and set aside those they

find 'unreasonable.'" Rita v. United States, 127 S. Ct. 2456, 2459

(2007); cf. United States v. Booker, 543 U.S. 220, 261-263 (2005).

The Court further affirmed the obvious: "[D]istrict judges . . .

[a]t times impose sentences that are unreasonable [and] [c]ircuit

courts exist to correct such mistakes when they occur." Rita, 127

S. Ct. at 2466. As is already clearly apparent, the present case

is undoubtedly one in which the sentence imposed is patently

unreasonable. It is thus the duty of this Court to carry out its

designated function by vacating the sentence, and remanding the

case again for a second resentencing.

Clearly, whether a sentence is "reasonable" is a mixed

question of law and fact. See, e.g., United States v. Willams, 475

53
Id. at vol. V, p. 603, ll. 4-6. See also id. at vol. VI, p.
697, l. 8 - p. 698, l. 11.

-27-
F.3d 468, 474 (2d Cir. 2007). As such a sentence is subject to

review under an abuse of discretion standard which is guided by

what has been established by Congress as the prevalent sentencing

legal philosophy of the United States. Rita, 127 S. Ct. at 2470-71

(Stevens, J., concurring) ("Simply stated, Booker replaced the de

novo standard of review required by 18 U.S.C. § 3742(e) with an

abuse-of-discretion standard that we called 'reasonableness'

review." (quoting United States v. Booker, 543 U.S. 220, 262

(2005))). In Rita, the Court emphasized Congress's mandate to

sentencing judges established in the basic sentencing objectives

set forth in 18 U.S.C. § 3553(a), as well as in its directive to

sentencing judges that they "impose ... sentence[s] [that are]

sufficient, but not greater than necessary, to comply with" these

basic aims. Id. at 2463; see also 18 U.S.C. § 3553(a). The Court

additionally underscored the "Statutory Mission" and "Basic

Approach" given by Congress when it enacted this legislation:

"'uniformity in sentencing by narrowing the wide disparity in

sentences imposed by different federal courts for similar

conduct,'" as well as "'proportionality in sentencing through a

system that imposes appropriately different sentences for criminal

conduct of different severity.'" Id. at 2464 (quoting U.S.S.G.

§ 1A.1, intro to comment, pt. A, ¶ 2) (emphasis in the original).

Thus, I see our role in determining the validity of a

sentence whose reasonableness is questioned as one requiring

-28-
analysis of the sentence and the reasons given by the sentencing

court in reaching its conclusions, tested against the record of the

case to determine whether the reasoning is supported by the record,

and ultimately, whether the sentence is reasonable. Of course, in

analyzing a sentence, we look to the basic sentencing objectives of

18 U.S.C. § 3553(a), and ultimately, whether the sentence is

"sufficient but not greater than necessary" to comply with the

basic aims listed in § 3553(a)(2):

(A) to reflect the seriousness of the offense,
to promote respect for the law, and to provide
just punishment for the offense;
(B) to afford adequate deterrence to criminal
conduct;
(C) to protect the public from further crimes
of the defendant; and
(D) to provide the defendant with needed
educational or vocational training, medical
care, or other correctional treatment in the
most effective manner.

It is probable that it may not be possible to establish

beforehand an all-encompassing definition of what is a "reasonable

sentence" -- a definition that covers all circumstances and

extremes. But all is not lost, and this is not an unheard-of

situation in the law. See, e.g., Booker, 543 U.S. at 262

("'Reasonableness' standards are not foreign to sentencing law.");

Williams v. Taylor, 529 U.S. 362, 387 n.4 (2000) (noting that the

term "unreasonable" was difficult to define in the context of the

Anti Terrorism and Effective Death Penalty Act). It is possible to

establish the middle ground, and leave the establishment of the

-29-
fringes to the development of jurisprudence. That is, after all,

the tried and true process of our common-law system. Perhaps a

valid starting point is the dictionary. There, we come upon the

definition of "reasonable" as "amenable . . . agreeable to reason,

just, rational, not immoderate, not excessive, not unjust,

tolerable, moderate, sensible . . . ." Webster's New Unabridged

Oxbridge Dictionary 1502 (1972).

The sentence appealed from by Cirilo-Muñoz does not

withstand the scrutiny imposed by these standards. As I will

demonstrate: (1) the scant reasoning provided by the sentencing

judge is faulty and is not supported by the record; (2) the

sentence fails to meet the objectives of § 3553(a) because it is

substantially greater than necessary to comply with those basic

aims; (3) the sentence fails to promote uniformity in sentencing

when compared to similar sentences imposed in the federal system;

and (4) the sentence is grossly disproportionate when the severity

of the defendant's actions is considered. Cirilo-Muñoz's sentence

also fails the Webster's test: it is unjust, immoderate, and

intolerable. In short, the sentence imposed upon Cirilo-Muñoz

after remand is unreasonable.

III. Is the Sentence Supported by the Judge's Reasoning?

Although we are concerned with the sentence imposed on

Cirilo-Muñoz after we remanded the case, given that the second

sentence was nearly equally as draconian as the first, the

-30-
circumstances of the first sentence serve as background to the

present appeal and shed some light on the district judge's actions

and reasoning in the matter presently before us.

In the first sentencing proceeding, although there was a

dearth of evidence to the effect that Cirilo-Muñoz knew that Mejías

was a police officer and that Lugo planned to kill him -- a point

emphasized by counsel for the defense to the district judge -- the

judge flatly rejected this contention and instead concluded that

there was evidence to infer that "this defendant knew that the

victim was a police officer and he was being killed because he was

a police officer."54 The judge then proceeded to analyze a version

of the evidence that is not supported by the record, which

commences with Cirilo-Muñoz's arrival at El Ideal ten to fifteen

minutes after Tony, which the judge deemed "important because that

place[d] Cirilo-Muñoz in that area which is a very small area close

to the main events."55 Thereafter, the judge continued discussing

the events that followed, assuming and speculating, despite the

lack of any support on the record, knowledge by Cirilo-Muñoz as to

what was going on regarding Lugo's plans and actions,56 even

regarding crimes as to which Cirilo-Muñoz was acquitted by the

54
See Transcript of Sentencing Hearing, United States v.
Cirilo-Muñoz, CR-94-363 ("Sentencing Tr.") at p. 13, ll. 11-15
(D.P.R. January 16, 1996).
55
Id. at p. 13, ll. 20-22.
56
Id. at pp. 13-15.

-31-
jury.57 In fact, it could be argued from statements at that hearing

that the judge erroneously thought that mere presence at the scene

by Cirilo-Muñoz was sufficient to imply knowledge and intent. See

United States v. Guerrero, 114 F.3d 332, 342 (1st Cir. 1997). The

judge's faulty reasoning is especially apparent in his surmising

Cirilo-Muñoz's prior knowledge from the fact that the Suzuki went

out of control because of the loudness of the shots fired by Lugo

into Mejías.58 Apart from the lack of logic of these events

establishing the prior knowledge by Cirilo-Muñoz, there is

absolutely no evidence to establish that the Oldsmobile in which

Cirilo-Muñoz was driving was anywhere near the Suzuki when the

fatal shots were fired. Yet the district judge had no qualms in

concluding, "I'm certain a fired shot must have been heard by the

drivers in the other car."59 Based on this dubious evidence and

total speculation, the judge went on to conclude that although

Cirilo-Muñoz was a minor participant, he knew that Mejías was a

police officer. Although he stated at first that he would not give

him life imprisonment,60 the judge nevertheless proceeded to impose

57
"And then [Cirilo-Muñoz] got into the car with Ynoa -- to
follow the victim who was kidnaped or abducted in the car. And he
knew at that time that they were not going to go to a picnic. That
was -- that was -- there's -- there's -- there was something going
on there." Id. at p. 14, ll. 16-20.
58
Id. at p. 14, l. 22 - p. 15, l. 8.
59
Id. at p. 15, ll. 6-8.
60
Id. at p. 6, l. 10.

-32-
life imprisonment.61 Finding that the sentence lacked any support

in the facts of the case, we vacated and remanded to the district

court for resentencing.

With this background we thus come upon the resentencing

hearing held on August 19, 2005, which is further illustrative of

the district court's reasoning. As previously indicated, upon

motion of Cirilo-Muñoz's counsel and in consonance with this

Court's ruling, the presentence report was amended to strike its

asseveration to the effect that Cirilo-Muñoz was involved in the

distribution of drugs, there being no evidence in the record to

said effect.62

Also upon motion of Cirilo-Muñoz's counsel, the

presentence report was amended to reflect our decision to the

effect that there was no evidence on the record to support the

conclusion that Cirilo-Muñoz knew that Mejías was a police

61
Id. at p. 27, ll. 20-21. The statements by the judge seem
to confuse Lugo's actions when he murdered Mejías with Cirilo-
Muñoz's, who was nowhere in the vicinity when Lugo killed Mejías.
Thus, the district judge refers to the heart-rending incident in
which Mejías begs for mercy, an event that took place while Lugo
was with Mejías and Tony in the Suzuki, after they had left the El
Ideal area, and before Cirilo-Muñoz and Tony arrived in the
Oldsmobile down the road near the general store, El Cano's. Id. at
p. 27, ll. 7-9. Cirilo-Muñoz was not a participant, not even a
witness, to this cold-blooded act by Lugo, yet the district judge
seems to hold it against him.
62
Transcript of Resentencing Hearing, United States v. Cirilo-
Muñoz ("Resentencing Tr.") at p. 3, l. 20 - p. 4, l. 24 (D.P.R.
August, 19, 2005).

-33-
officer,63 which as has been pointed out in discussing the first

sentencing hearing, was a key finding of the district court on

which it based its imposition of Cirilo-Muñoz's life sentence.64

Defense counsel then requested that there be a further

amendment to reflect that "there's no evidence in the record to

determine why Mr. Cirilo followed the car. In other words, there

is no evidence that anyone asked my client to follow him."65 This

colloquy then took place:

THE COURT: Then why did he follow him?

COUNSEL FOR CIRILO-MUÑOZ: That's exactly what
the Court of Appeals said. We don't know the
answer to that. There's no evidence on the
record as to that.

THE COURT: Because the problem is that this
individual, Mejías, was, I would say, sort of
kidnapped into this vehicle, and then the
other vehicle followed where this defendant
was in that vehicle. Wasn't he driving the
vehicle, the defendant?

COUNSEL: Was he driving the other vehicle?

THE DEFENDANT: Yes.

THE COURT: So how come you are going to follow
another car that has already there unwillingly
in custody? I mean -- and then that car was
thrown over some quarry so that this car was
needed to bring back the other fellows. I
think that he knew that he was following that
car. He didn't know that he was a police

63
Id. at p. 5, l. 16 - p. 6, l. 5.
64
Supra note 54.
65
Resentencing Tr. at p. 6, ll. 12-16.

-34-
 officer, but that's another point. This, I
will deny this.66

This interchange reveals several errors, including several

inappropriate assumptions by the district judge.

First of all, it is apparent from the judge's comments

that he assumed that Cirilo-Muñoz knew that Mejías was being

kidnaped by Lugo, and somehow was an accomplice or an aider and

abettor in that endeavor. In fact as the record clearly

establishes, Cirilo-Muñoz was kept outside the inner circle of

knowledge as to what was going on. He was unaware that Lugo was

armed, Lugo keeping the gun hidden under his belt67 and not taking

it out until he was in the Suzuki with Mejías and Saúl.68 There is

simply no evidence that would allow the judge to conclude that

Cirilo-Muñoz was aware that Mejías was "sort of kidnaped in his

vehicle." Furthermore, to the extent that this statement reflects

that the judge somehow lumped Lugo's taking of Mejías with the

carjacking of his vehicle, it seems to be an inappropriate

confusion or merger of facts and charges, and the consideration by

the judge of allegations as to which the jury clearly absolved

Cirilo-Muñoz, i.e., Counts Two and Three of the indictment.

Additionally, there is simply no evidence to support the judge's

66
Id. at p. 6, l. 16 - p. 7, l. 19.
67
Trial Tr. at vol. V, p. 594, ll. 3-14.
68
Id. at vol. V, p. 599, ll. 9-19.

-35-
comments regarding the so-called follow-up car, as Lugo, the

Government's star witness and the only one to testify in this

regard, stated that he did not know why Cirilo-Muñoz had shown up

in the Oldsmobile,69 as he had never told Cirilo-Muñoz to follow

him.70 In fact, it was only Lugo who knew about the quarry, and it

was he who led the way there.

The Government then presented its arguments. Although by

now, having had the benefit of Lugo's third confession and

testimony at trial, the prosecution should have known better, it

continued its take-no-prisoners approach to Cirilo-Muñoz, adding

its own fuel to the fire, and further leading the court to error:

ASSISTANT U.S. ATTORNEY: He killed -- He was
involved in killing of an individual that
happened to be also a law enforcement. Part
of the group that was involved in the killing
knew that he was a law enforcement.

Therefore, at least 99.9 of that group knew
they kidnaped and they were to kill a law
enforcement.
. . .
You cannot be an accessory after the fact when
you follow the vehicle when the police officer
was kidnaped and they were going to kill him.

The murder happened after this defendant
followed that vehicle, and he was the driver.
Therefore, he was a participant prior to the
killing. He was a participant while the police
officer was being kidnaped.

69
Id. at vol. V, p. 603, ll. 4-6.
70
Id. at vol. VI, p. 698, ll. 2-21.

-36-
 THE COURT: When they pushed the car down the
quarry with the victim inside the car, that
cannot be done. That's why he was found guilty
of aiding and abetting as to murder.
. . .
ASSISTANT U.S. ATTORNEY: A law enforcement
officer died because this defendant, as well
as others, were involved.71

Of course these interchanges reveal not only

misstatements by the prosecution but also factual errors by the

judge. The very remand took place because of lack of evidence that

Cirilo-Muñoz was aware of Mejías's status as a police officer.

Furthermore Cirilo-Muñoz was acquitted of any complicity in the

kidnaping/carjacking of Mejías. Additionally, Mejías was murdered

by Lugo within seconds of leaving the El Ideal area. At this point

Cirilo-Muñoz was not only not following in the Oldsmobile, but

according to the only evidence in the record -- Lugo's testimony at

trial -- he and Tony were at El Ideal.72 Lastly, although Cirilo-

Muñoz was present when the Suzuki was pushed over the embankment,

71
Resentencing Tr. at p. 20, l. 17 - p. 22, l. 6. This hostile
and aggressive attack by the prosecution against Cirilo-Muñoz is in
great contrast to the Government's friendly, almost paternalistic
stance at Lugo's sentencing hearing. Although Mejías's murder and
carjacking were admittedly "not the only assaults he had committed,
[and] not the only violent crime he had ever engaged in [having
previously been sentenced for robbery]", Lugo Sentencing Tr. at p.
10, ll. 6-7, and Lugo was thus considered a "potential enforcer" by
his drug bosses, id. at p. 10, l. 15, the Government extolled his
contributions as a witness, saying he cooperated from the
beginning, and glossing over his initially false statements about
Cirilo-Muñoz, which the Government did not even deign to mention.
Id. at p. 17, l.6 - p. 18, l. 24.
72
Tr. V, p. 600, ll. 8-24.

-37-
there is no evidence that he participated in this act, which in any

event would have made him an accessory after the fact, not an aider

and abettor in the murder, as Mejías was unfortunately already

dead.

Not content with the situation, the district judge then

proceeded to interrogate Cirilo-Muñoz directly:

THE COURT: Let me ask you this question: Why
did you follow the car where the victim here
was being kidnaped?

THE DEFENDANT: Well, when they thought they
were going to give this person a beating, I
never had any awareness of a death or
anything, because otherwise, I wouldn't have
done it, and in my very own ignorance, I
wanted to see just to look, and when I came to
learn about it, it was too late. I couldn't go
back. And then my life was also at risk
because I was in the midst of it all, without
really having wanted to.

THE COURT: You stopped the car near the other
cars; right?

THE DEFENDANT: Not so near.

THE COURT: How far?

THE DEFENDANT: One hundred meters.

THE COURT: Did you observe when they pushed
the car over the quarry?

THE DEFENDANT: When I got there, that's what
they were doing. I don't know what they were
doing. I saw that, but like I said, it was
already too late. I was already involved.

THE COURT: And you knew that Mejías was inside
the car when the car was being pushed down the
quarry?

-38-
 MR. GUZMAN: I think for the translation, I
think he also said he was already dead. He
also said that earlier.
. . .
THE DEFENDANT: By the time I got there, they
were doing that. It was already done.

THE COURT: And you knew there was a person
inside that car, the victim?

THE DEFENDANT: Well, not really. I never saw
him.

THE COURT: Who brought the others, Lugo and
Ramírez-Ynoa back?

THE DEFENDANT: I did.

THE COURT: Well, then you followed them to
bring them back in another car; right.

THE DEFENDANT: Oh, I have never said -- no.

THE COURT: So didn't you wonder what happened
to the person that was inside the car?

THE DEFENDANT: After the facts, yes. That's
when I learned what had gone on.73

The district judge then proceeded to resentence Cirilo-Muñoz,

explaining that he would not make any variance "[b]ecause I don't

feel that the whole affair in this case requires that I vary the

sentence downward . . . . I will sentence him under the advisory

guidelines, and I'll give him a reasonable sentence" (emphasis

added).74 The judge then proceeded to "explain" his reasoning by

73
Resentencing Tr. at p. 23, l. 25 - p. 26, l. 9.
74
Id. at p. 27, ll. 20-25. To what "whole affair" was the
judge referring? Cirilo-Muñoz was found guilty only on Count 1,
and was a minor participant at that, according to the judge.

-39-
simply reading the various sentencing factors in 18 U.S.C.

§ 3553(a), and stating how "Defendant Lugo Sánchez was the person

who knocked at the door first," and cooperated with the Government,

thus warranting the special treatment that he received.75

Getting to the specifics of the sentence, the district

judge said that he had

to pay obeisance to the Court of Appeals where
the Court says that the evidence was thin.
The Court of Appeals didn't say there was no
evidence. Simply, it was thin, which means
there was some evidence. . . . [I]t's going
to be very difficult for a Court of Appeals or
a higher court to reverse a judge when the
judge sentences a defendant at the lower end
of the advisory guideline. That's as
reasonable as I can be. As a matter of fact
this defendant is getting a 38-year reduction
[from the prior life sentence]. If he lives
to 65, he would get a 43-year reduction.76

The judge then proceeded to sentence Cirilo-Muñoz to 324 months of

imprisonment, i.e., twenty-seven years.77

I cannot say that these statements by the district court,

which consist mainly of a restatement of the law as well as a

sarcastic statement regarding the "reduction," provide me with much

insight into his reasoning. Reading between the lines, I get the

distinct impression that it is merely a clumsy attempt to evade

appellate review. I do not believe it is a successful one.

75
Id. at p. 28, l. 17 - p. 29, l.17.
76
Id. at p. 30, l. 21 - p. 31, l. 18.
77
Id. at p. 32, l. 17.

-40-
 IV.

A. "The nature and circumstances of the offense" of which
Cirilo-Muñoz was convicted.

I start with the first factor to be considered in

imposing a sentence, "the nature and circumstances of the offense

and the history and characteristics of the defendant," 18 U.S.C.

§ 3553(a)(1). As should be crystal clear from the recitation of

the facts, there is no evidence in the trial record that Lugo told

Cirilo-Muñoz,78 or any one else in Cirilo-Muñoz's presence,79 that

he intended to kill Mejías or that Cirilo-Muñoz had this prior

knowledge that he intended to kill Mejías,80 and most importantly,

that Cirilo-Muñoz did anything before Mejías was killed intending

to aid in this nefarious endeavor. I recognize that this statement

is contrary to the jury verdict, which has already been affirmed by

this Court. See Mangual-Corchado, 139 F.3d 34. Although I

strongly believe that the conviction should have been reversed,

even accepting that there was minimally sufficient evidence for a

78
See Trial Tr. at vol. V, p. 586, ll. 2-4.
79
Cirilo-Muñoz was not present in the back of Juan's house,
across the street from the Cafetín El Ideal, when Mejías had the
argument with Lugo in the presence of Tony and David Silva. There,
Mejías confronted Lugo about the conversation between Lugo and
David -- which Mejías had lip-read -- in which Lugo had asked David
to go with Mejías to Plaza Carolina to check on the bona fides of
Mejías, whom Lugo suspected of being a police informant. See
generally Trial Tr. at vol. V, pp. 586-92.
80
See Trial Tr. at vol. VI, p. 696, l. 22 - p. 697, l. 1.

-41-
jury to find Cirilo-Muñoz guilty, that evidence shows that his link

to this crime was so attenuated, so remote, that even the

appellation "minimal participant" does not do it justice. I

briefly explain.

First, given the testimony that nobody told Cirilo-Muñoz

of the intended murder of Mejías before it happened, at best,

Cirilo-Muñoz could not have had more than fleeting knowledge that

a crime was going to occur. Moreover, there was no testimony that

Cirilo-Muñoz had any desire to engage in any sort of violence

against Mejías; if anything, he had turned down two of Lugo's

invitations to injure Mejías. Furthermore, to the extent that

Cirilo-Muñoz did provide some minimal support by driving a getaway

car, it is hard to see how this sole action could be considered so

worthy of our opprobrium that we would put Cirilo-Muñoz in jail for

what amounts to most of his natural life.

Thus, even if we accept that Cirilo-Muñoz's actions and

mens rea are sufficient for a conviction, it is clear that his

foreknowledge of the crime was largely hypothetical, and his

willing and intentional participation minimal at best. This

becomes even more evident when Cirilo-Muñoz's role is compared to

that of Lugo -- the perpetrator of the crime, the organizer of the

scheme, and ultimately, the beneficiary of a Government-requested

sentence that was effectively ten years below Cirilo-Muñoz's

-42-
sentence. Thus, given Cirilo-Muñoz's marginal role, it is clear

that a sentence of twenty-seven years is plainly unreasonable.

B. The history and characteristics of Cirilo-Muñoz.

The first fact to be considered is Cirilo-Muñoz's

undisputed lack of any criminal record.81 Second, there is no

evidence in the record that Cirilo-Muñoz was involved in the sale

of drugs. See Cirilo-Muñoz, 404 F.3d at 528. There was incorrect

information to the contrary in his first presentence report, and

this information was objected to by defense counsel at his

resentencing hearing. This error was then corrected by the

sentencing judge.82

Cirilo-Muñoz, who was eighteen years old when the

incidents involved took place, lived a short distance from the

Cafetín El Ideal, a neighborhood bar which was the hang-out for the

young men that lived in the typical poor Puerto Rico barrio83 of

Parcelas Colón, in the Municipality of Trujillo Alto. They went

there to play pool and purchase and drink alcoholic beverages,

Mangual-Corchado, 139 F.3d at 38 n.3, although as has been

described, some went there to sell drugs at the punto across the

street. Cirilo-Muñoz was a user of drugs, and like the "other

81
See Presentence Report, United States v. Cirilo-Muñoz, CR-94-
363 at p. 9, pt. B, (D.P.R. Dec. 28, 1995).
82
See supra n.62.
83
Best translated as "neighborhood." See The Concise Oxford
Spanish Dictionary 76 (1998).

-43-
young guys," a perpetual hanger-on at the Cafetín El Ideal,

"spen[ding] nine hours a day, seven days a week, at El Ideal." Id.

Although some of the other young men that went there caused

problems in and around the El Ideal premises, Cirilo-Muñoz was not

one of them.84 The owner of El Ideal, José Adalberto Lugo-Ramírez,

one of the Government's key witnesses at the trial, testified that

he had known Cirilo-Muñoz during the four years he had owned that

business: "He's a good guy -- good guy. He's never had any

problems with me. He goes there. He makes his purchases. He

doesn't make any fuss or no -- nothing disorderly, a good young

man. . . . He's a -- he's a normal guy who goes to the business.

He's a good young man."85 Cirilo-Muñoz was an insignificant

"groupie," which is precisely why Lugo fingered him initially, and

told Agent Medina "he was the least to be feared by him and would

be the least likely to be protected by the drug dealers involved,"

i.e., Cirilo-Muñoz was deemed expendable; he was a de facto

disposable accessory, an ideal subject to take the rap for Lugo, a

convenience that the Government blithely went along with. A

sentence of twenty-seven years is clearly unreasonable for such a

man.

84
Trial Tr. at vol. III, p. 282, ll. 10-14.
85
Id. at vol. II, p. 226, l. 24 - p. 227, l. 15.

-44-
 C. The sentence of twenty-seven years imprisonment imposed upon
Cirilo-Muñoz as an aider and abettor is unreasonable because it
is greater than necessary to meet the goals established by
Congress, lacking both uniformity and proportionality.

In addition to those already discussed, among the factors

that Congress indicated should be considered in determining a

criminal sentence are "promot[ing] respect for the law and . . .

provid[ing] just punishment for the offense." 18 U.S.C. § 3553(a)

(2)(A). I believe it appropriate to ask: How it can be argued that

the sentencing of Cirilo-Muñoz to twenty-seven years in this case

promotes respect for the law? Even if we accept the district

court's conclusions -- that Cirilo-Muñoz is, at worst, a minor

aider and abettor in the charges under Count 1 for which he was

convicted -- it remains that the actual assassin, who was convicted

not only of Count 1, but of all four counts of the indictment, and

who possessed an extensive criminal record, was sentenced to only

seventeen years. How can a twenty-seven year sentence imposed upon

Cirilo-Muñoz for minor participation be considered a "just

sentence"?

Quite the opposite, a sentence like the one in the case

against Cirilo-Muñoz promotes disrespect for the law, and any

semblance of justice in this outcome is purely coincidental. In

fact, under the legal codes of many of the most advanced countries

in the world, a manipulation of the criminal system such as has

taken place in the present case is simply not permissible. See,

e.g., Jenia Iontcheva Turner, Judicial Participation in Plea

-45-
Negotiations: A Comparative View, 54 Am. J. Comp. L. 199, 218

(2006) ("[P]rosecutors [in Germany] cannot make credible

commitments that the court will accept a particular charge or

sentence bargain."); Maximo Langer, From Legal Transplants to Legal

Translations: The Globalization of Plea Bargaining and the

Americanization Thesis in Criminal Procedure, 45 Harv. Int'l L.J.

1, 50 (2004) (noting that in Italy, plea-bargaining "can only be

applied in cases where the sentence does not exceed five years of

imprisonment after sentence reduction"); id. at 59 (noting that

plea-bargaining in France may "be applied only to non-serious

offenses"); see also William J. Stuntz, Plea Bargaining and

Criminal Law's Disappearing Shadow, 117 Harv. L. Rev. 2548, 2567

(2001) (criticizing federal plea bargaining on the ground at the

results produced in federal plea bargains are "much more likely to

flow from the prosecutors' preferences than from the voters'").

Although I realize that such is not the law or practice in this

country, even under our system, the outcome of the present case

does little to enhance respect for the law in the eyes of the

citizenship. What the average citizen sees is a criminal who knows

the ropes and, as a result, is literally getting away with murder

by circumventing the system, with an insignificant clod being left

holding the bag.

Even in our legal system, the cases that are reported do

not support the disparity extant in this case between Cirilo-Muñoz,

-46-
a minor aider and abettor, and Lugo, the principal and murderer.

I have found no reported case where an aider and abettor such as

Cirilo-Muñoz was given a higher sentence than the principal. The

few cases in which the principal and accessory were sentenced to

the same term all have in common the fact that the accessory played

a large role in the scheme. See, e.g., United States v. Harris,

167 Fed. Appx. 856, 861 (2d. Cir 2006) (unpublished opinion) (co-

defendant's sentence lower where the one with the higher sentence

was found to be the leader of the scheme); United States v. Harris,

397 F.3d 404, 416-17 (6th Cir. 2005) (case remanded for a hearing

for a minimal participant downward departure where the aider and

abettor and principal received the same sentence); see also United

States v. Sitting Bear, 436 F.3d 929, 936 (8th Cir. 2006) (aider

and abettor of murder of young child and the principal received the

same sentence where court found that both parties "were equally

culpable for the actions that led to and ultimately caused [the

child's] death"); United States v. Wilson, 202 Fed. Appx. 550, 554

(3d Cir. 2006) (unpublished opinion). Clearly, the circumstances

of the present case fall outside any of those cases.

V. Conclusion

The sentence imposed upon Cirilo-Muñoz is unreasonable

because, as we said in a different context, but also dealing with

the concept of what is unreasonable, it is "so devoid of record

support, [and] so arbitrary, as to indicate that it is outside the

-47-
universe of plausible, credible outcomes." O'Brien v. Dubois, 145

F.3d 16, 25 (1st Cir. 1998). I am sorry to say that after having

read this record from cover to cover, I am troubled by the

unshakeable feeling that the sentence imposed on Cirilo-Muñoz has

been fueled almost exclusively by a spirit of retribution. The

result is that justice has been truly blinded, for even if

retribution were warranted, it is misdirected against Cirilo-Muñoz.

An esteemed colleague in the trenches has put it cogently:

"[S]entencing is about more. It is about proportionality; it

requires individualizing so that the punishment fits the crime. It

is not now, nor has it ever been, a one size fits all approach."

Nancy Gertner, From Omnipotence to Impotence: American Judges and

Sentencing, 4 Ohio St. J. Crim. L., 523, 538 (2007).

I am of the view that the sentence should be vacated and

the case remanded for resentencing to the district court, at which

time the reasonableness of the sentence imposed should be

reconsidered, including the determination of whether Cirilo-Muñoz

should be classified as a minimal participant.86

86
It should be noted that appellant has already been
incarcerated almost thirteen years.

-48-
 LIPEZ, Circuit Judge. This is an unusual case, rife with

difficult issues requiring thoughtful and clear explanation.

Although I do not agree with every particular of Judge Torruella's

superb opinion, I agree with him that the district court's

conclusory and vague explanation of the sentence imposed on Cirilo-

Muñoz was inadequate as a matter of law. I also agree with Judge

Lynch that two of Cirilo's arguments — that there was insufficient

evidence on which to convict him and that his sentence is

unreasonable merely because it is disproportionate to the sentence

imposed on co-defendant Lugo — fail. I do not reach the question

whether the district court's denial of a "minimal participant"

reduction was appropriate. In my view, the new sentencing judge

should reevaluate that claim upon remand.

I.

Before explaining my view that the district court's

explanation of the sentence was insufficient, I must describe the

arguments presented to the court at the sentencing hearing and the

court's responses thereto.

Cirilo presented two arguments to the court at his second

sentencing hearing. First, he argued that, under the post-Booker

advisory guidelines regime, a "reasonable" sentence would be one

below the Guidelines Sentence Range ("GSR"). Cirilo's counsel made

the following arguments to the court:

I would argue to you that a sentence of 27 to
34 years is not reasonable, particularly when

-49-
 you compare it to the sentence of the person
who shot the officer, Mr. Lugo, who received a
sentence of 22 years.
. . . .
The argument may be made, well, the
reason Mr. Lugo received a smaller sentence is
that he cooperated, which in fact, he
did. . . .
[Lugo] testified at trial . . . . When
he testified at trial, he said that my client
was uninvolved. He didn't know that the
officer was going to be killed, and he didn't
know that the person was an officer. That's
what Mr. Lugo said at trial, according to the
Court of Appeals, the finding that they made.
Judge, the only way that [a cooperating
witness] gets credit for his testimony is if
he tells the truth. The Government, as part
of the agreement says, you must agree to tell
the truth and testify truthfully, or you will
not be given credit for your cooperation.
So therefore, since the Government gave
Mr. Lugo credit for his cooperation, they must
have believed that he was telling the truth
when he said that my client was uninvolved,
because they gave him a huge discount from his
sentence, a huge discount. . . .
I would say that under the Booker
standard of reasonableness, given the
testimony of the Government's own witness, and
given the fact that the shooter, Mr. Lugo, got
a sentence of 22 years, that my client should
get a lesser sentence.
There's several ways, obviously, you
can do this, Judge. You can do it simply
because the guidelines are now advisory
. . . .

Cirilo also argued that the district court should give

him an additional two-point reduction for his level of

participation. At the first sentencing hearing, the court had

found that Cirilo was a "minor participant." At re-sentencing,

Cirilo argued that he was more accurately classified as a "minimal

-50-
participant." Counsel repeatedly urged the court to make a minimal

participant finding, which would then lower the range to twenty

years and ten months, at the low end, to twenty-seven years and

three months, at the upper end.

In response, the government argued that Lugo's sentence

was justified by his cooperation with the prosecution. Although

the government conceded that Lugo did not admit to having been the

shooter when he was first interviewed, the government said that

Lugo deserved significant credit for his cooperation because,

despite his initial lies about who pulled the trigger, he named all

of the other participants in the crime. The government went on to

argue that Lugo's twenty-two year sentence was "a tough sentence"

and "not a lesser or a slow [sic] sentence." After offering its

justification for Lugo's sentence, no small task, the government

urged the court to sentence Cirilo to thirty years, or the middle

of the GSR, thereby focusing its retribution efforts on him.

The court then gave Cirilo an opportunity to make a

statement, which he did:

I ask the court to please consider and give me
a new opportunity.
At the time I got into the case, I was
a youngster, very ignorant. I have learned a
lot in the time I've been jailed. And thanks
to the Lord, I've had an opportunity to learn
and I have matured, and I have learned my
lesson.
I committed an error because I was with
the wrong person, a mistake that I definitely
will not commit again, and I would ask the
Court to please give me an opportunity to redo

-51-
 my life as a man, and not as a child, which is
what I was.

Throughout the argument of Cirilo's counsel, the court

inquired why Cirilo had followed Lugo's car and noted, more than

once, that it believed that Cirilo "knew that he was following that

car," suggesting that Cirilo therefore knew the full extent of the

criminal activity that was underfoot. At one point, the court

described Cirilo as "equally culpable of the killing." It also

said that "they pushed the car down the quarry with the victim

inside the car, that cannot be done. That's why [Cirilo] was found

guilty of aiding and abbetting as to murder."87 After Cirilo's

statement, the court asked him why he had followed Lugo's car

"where the victim here was being kidnapped?" Cirilo responded that

"when they thought that they were going to give this person a

beating, I never had any awareness of a death or anything, because

otherwise, I wouldn't have done it, and in my very own ignorance,

I wanted to see just to look, and when I came to learn about it, it

was too late. I couldn't go back."

The court followed up by asking whether Cirilo had

"stopped the car near the other cars," to which Cirilo replied that

he had stopped the car "not so near," about "one hundred meters"

87
Cirilo stated at the re-sentencing hearing, in response to
questioning by the court, that when he arrived at the quarry, Lugo
and the others had already pushed the car into the quarry. There
was no testimony that Cirilo knew about Lugo's plans for disposal
of the car (and Mejias' body), or participated in that activity.

-52-
away from Lugo's car. Cirilo also explained that by the time he

arrived at the quarry, the others "were doing that. It was already

done." Finally, the court asked, again, whether Cirilo followed

the others "to bring them back in another car, right?" Cirilo

reiterated his earlier explanation, saying "I have never said I —

no." That concluded the colloquy between Cirilo and the court, and

the court then proceeded to sentencing.

After summarizing the procedural history of the case, the

court said:

In this case, I find that following the
advisory guidelines, the Court will impose a
reasonable sentence, but will not make any
variance. I can do it, but I'm not going to
do it, because I don't feel that the whole
affair in this case requires that I vary the
sentence downward.
Therefore, I will sentence him under
the advisory guidelines and I'll give him a
reasonable sentence.
The offense of conviction, following
Advisory Guideline 2A1.1 establishes a base
offense level of 43.
Because defendant was a minor
participant in the instant offense, a two
level reduction is warranted under Guideline
Section 3B1.2(b).
There are no other applicable advisory
guideline adjustments.
Based on a total offense level of 41
and a criminal history category of one, the
imprisonment range in this case is from 324
months to 405 months with a fine range of
$25,000 to $250,000, plus a supervised release
term of from three to five years.
The Court has considered the applicable
guidelines adjustments under the now advisory
Sentencing Guidelines, following the ruling of
the Supreme Court in U.S. v. Booker, as well
as the other sentencing factors set forth in

-53-
18 U.S.C. Section 3553; namely, the nature and
circumstance of the offense and the
defendant's history and characteristics, the
need to promote respect for the law and
provide just punishment in light of the
seriousness of the offense; in this case,
murder, deterrence, the protection of the
public from further crimes of the defendant,
rehabilitation, and the need to avoid
unwarranted disparities among defendants with
similar records convicted of similar conduct.
At this point, let me say that
Defendant Lugo Sanchez was the person who
knocked at the Government's door first, and
that's why he made a deal; he made an
agreement with the Government. He testified,
and because of his testimony, these other
defendants were convicted. Without that
evidence, probably there would be no
conviction.
So that extensive cooperation and his
testimony at trial warranted that the Court
agreed to the Government's Plea Agreement.
If I recall correctly, the Government
wanted to give him a lower Plea Agreement, and
I increased that sentence, and that should
probably be in the record. There's no record
of that, but I rejected the agreement when
they came in with a lower sentence than I
imposed on Lugo, because I considered that
crime a very serious and heinous crime, a man
begging for his life, had a baby of four
months; he was shot in the back, in the
abdomen, and then he's shot in the head. And
then the individual sat on his body, and they
take the car to a quarry, throw the car down
with the victim.
If there's a more serious crime than
that, let me know. But this defendant was a
minor participant, and I have to pay obeisance
to the Court of Appeals where the Court says
that the evidence was thin. The Court of
Appeals didn't say there was no evidence.
Simply, it was thin, which means there was
some evidence.
Of course, as I say, the mandate is
written in stone for this Judge. I have to

-54-
 follow it. I have to follow what the Court of
Appeals said.
However, to be reasonable, I'm going to
sentence this defendant to the lower end of
the advisory guidelines.
Let me tell you, counsel, that it's
going to be very difficult for a Court of
Appeals or a higher court to reverse a judge
when the judge sentences a defendant at the
lower end of the advisory guideline. That's
as reasonable as I can be.
As a matter of fact, this defendant is
getting a 38-year reduction. If he lives to
be 65, he would get a 43-year reduction.
I notice that he has thought about what
he did; that he acknowledged the seriousness
of the offense, although he didn't say he was
repentant, but I take it from what he said,
he's repentant of what he did.
Of course, you cannot turn the clock
back. Now, at least you're alive, you have
your family there with you. The child who is
now fatherless, was four months old, will
never have a father. The wife of the murdered
police officer will never have him again, and
on balance, my heart goes to the victim.
I'm not saying that I have any
vindictive attitude toward you. On the
contrary, I think that you are on the right
path, and that's why I'm giving you the lower
end.
I could have easily given you 405
months. That would be 35 years, but I'm not
going to do that. I'm going to give you 324,
the lower end. I find it reasonable and
within the advisory guidelines, a reasonable
sentence.
Therefore, it is the judgment of this
Court that defendant is hereby committed to
the custody of the Bureau of Prisons to be
imprisoned for a term of 324 months. That is
the lower end of the guidelines.

This is the totality of the district court's explanation

of its sentence. Although the explanation seems to be lengthy, it

is important to note the elements of this explanation. They

-55-
include the following: (1) a summary rejection of the request for

a variance below the sentencing guidelines; (2) a summary

restatement of the court's finding that the defendant was a minor

participant in the offense; (3) a description of the guidelines

range; (4) a summary statement that the court had considered the

sentencing factors set forth in 18 U.S.C. § 3553(a); (5) a

statement that Lugo's extensive cooperation with the government

justified the court's acceptance of the government's plea

agreement; (6) a description of the vicious murder of Mejias which

prompted the court to increase the government's plea agreement;88

(7) an acknowledgment that the court has to "pay obeisance to the

court of appeals when the court says that the evidence [of Cirilo's

role in the crime] was thin"; (8) a summary statement that the

defendant would be sentenced to the lower end of the sentencing

guidelines range; and (9) a reference to the apparent repentance of

the defendant as a basis for placing the sentence at the lower end

of the guidelines. In the end, the explanation of the sentence

imposed on Cirilo included only two elements: (1) a summary

rejection of the request for a variance, and (2) the summary

statement that a reasonable sentence would be a sentence at the

lower end of the advisory guidelines in light of the apparent

88
As Judge Torruella details in his opinion, the government
initially recommended that Lugo be sentenced to only fifteen years
of imprisonment for his role in Mejias' murder, but the district
court increased the sentence to seventeen years.

-56-
repentance of the defendant. The court gave no explicit reasons

for denying Cirilo's request for a finding of "minimal participant"

nor did it explain the rejection of a below-GSR sentence based on

his lesser culpability.

II.

The sentence imposed on co-defendant Lugo, the person

directly responsible for the heinous murder of undercover police

officer Mejias, was the result of a plea agreement.89 Although I

principally fault the government for entering into a deal with Lugo

that is grossly disproportionate to his vicious murder of Mejias,

I fault the district court for failing to understand that the

reasonableness of the sentence imposed on Cirilo, a minor

participant at most, must be evaluated in light of the sentence

imposed on Lugo, the principal player. As a result of this

failure, the district court's explanation of Cirilo's sentence is

woefully inadequate. However, before elaborating on that

conclusion, I address the importance of the adequate explanation

requirement.

89
As noted, the district court did increase the fifteen year
sentence called for by the plea agreement for the murder of a
police officer to seventeen years. In addition to the seventeen
year sentence for Mejias' murder, the court also sentenced Lugo to
an additional five years for aiding and abetting in the use of a
firearm while committing a crime of violence.

-57-
A. The Requirement of an Adequate Explanation

Under 18 U.S.C. § 3553(c), the sentencing judge is

required to state the reasons for imposing a particular sentence

"in open court" at the time of sentencing. Additionally, 18 U.S.C.

§ 3553(c)(1) requires the sentencing judge to state “the reason for

imposing a sentence at a particular point within the range,” if the

GSR exceeds twenty-four months.90

In United States v. Jiménez-Beltre, 440 F.3d 514, 519

(1st Cir. 2006) (en banc), we described the significance of this

requirement to the overall sentencing scheme, in the aftermath of

United States v. Booker, 543 U.S. 220 (2005): "[O]ur emphasis in

reviewing [a claim of an unreasonable sentence] will be on the

provision of a reasoned explanation, a plausible outcome and —

where these criteria are met — some deference to different

judgments by the district judges on the scene." Jiménez-Beltre,

440 F.3d at 519. We explained that regardless of "[w]hether the

sentence falls inside or outside the applicable guideline range, it

is important for us to have the district court's reasons for its

sentence; 18 U.S.C. § 3553(c) so requires for sentences outside the

guidelines range (or within it if the range is broad) and this is

even more important in the more open-ended post-Booker world." Id.

We also observed that there would be some cases where the court's

90
The GSR here was 324 to 405 months, a range of eighty-one
months.

-58-
reasoning could be "inferred by comparing what was argued by the

parties or contained in the pre-sentence report with what the judge

did." Id.

We have subsequently reiterated the centrality of the

explanation requirement to the overall sentencing scheme, and to

our role within it. See United States v. García-Carrasquillo, 483

F.3d 124, 132 (1st Cir. 2007) ("An important prerequisite to our

reasonableness analysis is the district court's reasoned

explanation for the sentence imposed, as required by 18 U.S.C. §

3553(c). This is true even if the sentence is within the

guidelines range." (citation omitted)).

The district court's explanation of the sentence serves

dual purposes. First, the explanation is an essential prerequisite

to our appellate review of the sentence. The Supreme Court has

emphasized this rationale for the explanation requirement: "In the

[sentencing] context, a statement of reasons is important. The

sentencing judge should set forth enough to satisfy the appellate

court that he has considered the parties' arguments and has a

reasoned basis for exercising his own legal decisionmaking

authority." Rita v. United States, 127 S. Ct. 2456, 2468 (2007);

see also United States v. Montes-Pineda, 445 F.3d 375, 380 (4th

Cir. 2006) ("[A] district court's explanation must be elaborate

enough to allow 'an appellate court to effectively review the

reasonableness of the sentence.'" (quoting United States v.

-59-
Williams, 432 F.3d 621, 622 (6th Cir. 2005))). In short, we cannot

do our job of appellate review if we must guess at the reasons

underlying the district court's sentence, particularly in a case

with the troubling elements that we have here.

Second, such an explanation furthers the weighty goals

of transparency and credibility for the justice system. As the

Third Circuit recently commented:

The rationale by which a district court
reaches a final sentence is important. It
offers the defendant, the government, the
victim, and the public a window into the
decision-making process and an explanation of
the purposes the sentence is intended to
serve. It promotes respect for the
adjudicative process, by demonstrating the
serious reflection and deliberation that
underlies each criminal sentence, and allows
for effective appellate oversight.

United States v. Grier, 475 F.3d 556, 572 (3d Cir. 2006) (en banc).

Despite our willingness to excuse brief or summary explanations of

sentences in some cases where the court's reasoning can be

inferred, we should not resort to such inferences when the

sentencing stakes are so high and the sentence imposed by the

district court is difficult facially to understand.

I recognize the heavy workload of the district court,

particularly in Puerto Rico. The trial judges face pressures of

immediacy that we do not face on the court of appeals.

Nevertheless, the sentencing decisions made by the trial judges

always have enormous import for defendants, victims, and the public

-60-
at large. Nothing they do is more important. Given these stakes,

we should not hesitate to demand an adequate explanation of a

particularly difficult sentence.

With these considerations in mind, I turn to the merits

of Cirilo's challenge to the sentencing explanation.91

B. The Explanation

In the course of explaining its sentence, the district

court stated that it would "be very difficult for a Court of

Appeals or a higher court to reverse a judge when the judge

sentences a defendant at the lower end of the guideline range."

This statement reflects the view that sentencing is largely about

the specific sentence imposed and not the rationale for it. In the

view of the district court, if the appellate court finds the number

generally reasonable, the appellate court will have little concern

with the underlying rationale as it relates to the particular

defendant's circumstances. This approach to sentencing is utterly

91
Several of our cases apply the plain error standard of
review to a challenge to the adequacy of a § 3553(c) sentencing
explanation. Applying the plain error standard to such a challenge
raises a host of difficult issues, and I have serious reservations
about using that standard of review for this type of sentencing
flaw. Applying it to the facts here would be particularly
troubling. However, this is not an appropriate case for delving
into the complexities that concern me. The government has not
argued for plain error review, and the parties have not briefed the
issue. Moreover, my close study of the record in this case allows
me to conclude without hesitation that the error would meet the
plain error test. I therefore discuss the adequacy of the district
court's explanation without applying the plain error standard.

-61-
at odds with the requirements of § 3553(c) and the important public

goals served by the sentencing explanation. See supra.

Moreover, if the district court concluded from our

earlier decision that simply reducing the life sentence to a

sentence at the low end of the guidelines range would satisfy all

of our sentencing concerns, the district court drew the wrong

conclusion. To the contrary, given the difficult sentencing issues

identified in our earlier decision, the district court could not

simply invoke without explanation the sentencing factors identified

in § 3553(a) and respond summarily to the specific arguments of

counsel for a substantial variance from the GSR.

Cirilo's counsel argued at some length that his sentence

should be lowered because of Lugo's extraordinarily light sentence.

Specifically, counsel argued "that a sentence of 27 to 34 years is

not reasonable, particularly when you compare it to the sentence of

the person who shot the officer, Mr. Lugo, who received a sentence

of 22 years. . . . I would argue to you, it is not reasonable that

a minor participant in a crime receive a sentence greater than the

most responsible person for committing the crime." In its only

response to this argument, the court said that it would not depart

from the GSR because it didn't "feel that the whole affair in this

case requires that I vary the sentence downward."

This summary rejection of a plausible argument for a

below-GSR sentence (i.e., a variance) was insufficient. See, e.g.,

-62-
United States v. Jones, 445 F.3d 865, 872 (6th Cir. 2006) (Moore,

J., dissenting) ("This court has held that meaningful

reasonableness review requires that '[w]here a defendant raises a

particular argument in seeking a lower sentence, the record must

reflect both that the district judge considered the defendant's

argument and that the judge explained the basis for rejecting it.'"

(quoting United States v. Richardson, 437 F.3d 550, 554 (6th Cir.

2006))). That the court selected a sentence at the bottom of the

GSR does not explain why it declined to grant Cirilo a variance.

A guidelines sentence is never automatically reasonable; in this

Circuit it is not even presumptively reasonable. See Jiménez-

Beltre, 440 F.3d at 518. Selection of a sentence within the GSR,

therefore, did not eliminate or alter the statutory requirement

that the court provide an explanation that complies with § 3553(c).

Such compliance is particularly critical because of the

disparity issue at the heart of this sentencing appeal. Cirilo

plausibly argues that Lugo's sentence creates a "drag" on the

length of a “reasonable” sentence that may be imposed on him when

his culpability for this murder is so much less than Lugo's, the

man who responded to the victim's pleas for mercy by shooting him

in the stomach and then in the head at close range. It is true, as

we have often noted, that a co-defendant who was found guilty by a

jury is not "similarly situated" to a co-defendant who pled guilty,

and thus the disparity between them is not the intended target of

-63-
18 U.S.C. § 3553(a)(6)92 — a provision primarily focused on

mitigation of national disparities between similarly situated

defendants. See, e.g., United States v. Taylor, ___ F.3d ___, No.

06-2216, 2007 WL 2349415 (1st Cir. 2007); United States v.

Thurston, 456 F.3d 211, 216 (1st Cir. 2006); Navedo-Concepción, 450

F.3d at 59 ("Congress's concern with disparities was mainly

national."). Nonetheless, post-Booker, gross disparities between

co-defendants remain a permissible consideration in certain cases,

even if it is not the primary goal of the statutory provision. See

United States v. Vázquez-Rivera, 470 F.3d 443, 449 (1st Cir. 2006)

("[A] district court may consider disparities among co-defendants

in determining a sentence . . . ."); see also United States v.

Wills, 476 F.3d 103, 110 (2d Cir. 2007) ("We do not, as a general

matter, object to district courts' consideration of similarities

and differences among co-defendants when imposing a sentence.");

United States v. Krutsinger, 449 F.3d 827, 829-30 (8th Cir. 2006);

United States v. Parker, 462 F.3d 273, 277 (3d Cir. 2006) (holding

that a district court is permitted, although not required, to

consider sentencing disparities among co-defendants).93 Cirilo

92
Section 3553(a)(6) says that a sentencing court should
consider "the need to avoid unwarranted sentence disparities among
defendants with similar records who have been found guilty of
similar conduct."
93
In at least one case, a sentence has been vacated because
of the disparity between the defendant and her less-culpable co-
defendants. United States v. Lazenby, 439 F.3d 928, 933 (8th Cir.
2006).

-64-
based a significant part of his argument at sentencing on the

disparity issue and the anomaly that Lugo, with his far greater

culpability for the crime, received a lesser sentence. The

district court had an obligation to respond to that argument with

a supportable rationale. It failed to do so.

Instead, the district court focused almost entirely on

the rationale for Lugo's sentence: his cooperation with and

testimony for the prosecution. The court went so far as to say

that "without [Lugo's testimony], probably there would be no

conviction," without explaining why or how Lugo's cooperation was

not merely helpful but necessary to the government's case against

the other co-defendants. Lugo was entitled to some credit for his

cooperation with the government, even though he lied during his

first two interviews with the FBI. But the district court's focus

on Lugo's cooperation was too exclusive. Other than a general

invocation of the § 3553(a) factors, the court said virtually

nothing about them.94 See United States v. Frabizio, 459 F.3d 80,

91 (1st. Cir. 2006) (stating that a court abuses its discretion

94
Section 3553(a) requires a sentencing court to consider the
following factors: the nature and circumstances of the offense and
the history and characteristics of the defendant; the seriousness
of the offense; the need to promote respect for the law; provision
of just punishment for the offense; deterrence of criminal conduct;
protection of the public from further crimes of the defendant;
educational or vocational training for the defendant; the kinds of
sentences available; the sentencing guidelines range; any pertinent
policy statements; disparities between similarly situated
defendants; and the need to provide restitution to any victims of
the offense.

-65-
"'when a relevant factor deserving of significant weight is

overlooked, or when an improper factor is accorded significant

weight, or when the court considers the appropriate mix of factors,

but commits a palpable error of judgment in calibrating the

decisional scales'" (quoting United States v. Gilbert, 229 F.3d 15,

21 (1st Cir. 2000))); see also Taylor, __ F.3d __, 2007 WL 2349415,

at *3 (noting that reasonableness review of sentences, under

Booker, is "not easily distinguishable from review for abuse of

discretion"). The district court could not reasonably explain

Cirilo's twenty-seven year sentence simply by invoking Lugo's

cooperation.

To be sure, there was another factor driving the court's

sentencing decision on Cirilo, and hence its rejection of any

variance from the GSR — the court's view that Cirilo understood the

full extent of the criminal enterprise, and therefore was

substantially culpable for the murder. The court repeatedly asked

Cirilo (and his counsel) why he had followed Lugo's car if he did

not know that a murder was imminent, and he clearly did not believe

Cirilo's explanation that he was following because he was curious

and wanted to see Mejias beaten up. Cirilo pointed to specific

evidence — namely, Lugo's testimony — in support of his argument

that he did not know, when he followed Lugo's car, what was about

to occur. But the court never explained why it rejected Cirilo's

own testimony, which was consistent with Lugo's testimony at

-66-
trial.95 Indeed, Cirilo's counsel emphasized to the court that

Lugo's plea deal was contingent on his truthful testimony at trial.

Yet the district court failed to explain why it did not credit

Lugo's testimony regarding Cirilo's culpability, despite the

government's apparent belief that Lugo upheld his obligation to

testify truthfully. Much like the original sentencing hearing,

when the court found that Cirilo knew that Mejias was a police

officer, the court arrived at certain conclusions about Cirilo's

culpability without explaining the evidence that supported them.

Given the troubling history of this case and the equally

troubling disparity at the heart of this appeal, it should have

been clear to the district court that more was required on remand

than the unsupported assertion that a sentence at the bottom of the

guidelines range was almost surely reasonable. The district

court's failure to recognize this imperative resulted in a

sentencing explanation that included the summary rejection of

Cirilo's request for a variance, the generalized invocation of the

§ 3553(a) sentencing factors, the excessive focus on Lugo's

cooperation, and the unsupported conclusions about Cirilo's

culpability. This sentencing explanation failed to comply with the

requirements of § 3553(c) because it compromises our ability to

conduct proper appellate review of the sentence and it fails to

95
Lugo testified that he did not know why Cirilo had followed
him and that he did not ask Cirilo to do so.

-67-
meet the overarching public goals of the adequate sentencing

explanation — transparency and credibility.

As the Second Circuit eloquently said:

To paraphrase Richmond Newspapers, Inc.
v. Virginia, 448 U.S. 555, 572 (1980), people
in an open society do not demand infallibility
from their institutions, but it is difficult
for them to accept what they have insufficient
information to understand. When a statement
of reasons is given, there is at least an
opportunity for understanding both the system
in general and its workings in the particular
case. We have held, for similar reasons, that
the public has a presumptive right of access
to sentencing proceedings. The requirement
that a statement of reasons be given is
hardly, as the government would have it, a
mere "formalism."

United States v. Lewis, 424 F.3d 239, 247 (2d Cir. 2005). The

Supreme Court’s recent opinion in Rita further underscores the

importance of public explanation and justification of a sentencing

decision. The Court stated that “[c]onfidence in a judge’s use of

reason underlies the public trust in the judicial institution. A

public statement of those reasons helps provide the public with the

assurance that creates that trust.” Rita, 127 S. Ct. at 2468.

Any observer of this case would not feel the assurance

that creates such trust. By his own admission, Lugo concocted the

plan to kill Mejias and carefully executed that plan. He testified

that Cirilo had no knowledge of the plan. Despite his ultimate

cooperation with authorities, Lugo initially lied to investigators

and claimed that Cirilo was the murderer, later explaining that he

-68-
had pinned the crime on Cirilo because Cirilo was, essentially, the

"lowest man on the totem pole." Nonetheless, Lugo has been

sentenced to serve only seventeen years for his role in this grisly

murder and Cirilo, whose role was decidedly more minor, has been

sentenced to twenty-seven years. While some of that disparity is

explained by Lugo's plea of guilty and cooperation with the

government, Cirilo's sentence remains difficult to comprehend. The

only remedy for that difficulty, grounded as it is in the court's

failure to provide the adequate sentencing explanation required by

§ 3553(c), is a remand for resentencing.96

96
The resentencing will necessarily take place before a
different judge. The sentencing judge has now retired.

-69-
 LYNCH, Circuit Judge, dissenting as to the remand. In

1995, defendant Ernesto Cirilo-Muñoz was convicted of aiding and

abetting the murder of an on-duty police officer during the

commission of a drug offense. Cirilo drove the getaway car for his

co-defendants, who murdered Ivan Mejias Hernandez, an undercover

police officer posing as a drug customer. Cirilo was sentenced to

twenty-seven years in prison. The murderer cooperated with the

government and received a twenty-two year sentence, seventeen of

which were for this murder.

Cirilo now appeals his sentence on four grounds. I state

my views on each.

I.

More detailed descriptions of the facts may be found in

our previous opinions pertaining to Cirilo's conviction and initial

sentence. See Cirilo-Muñoz v. United States, 404 F.3d 527, 528-29

(1st Cir. 2005); United States v. Mangual-Corchado, 139 F.3d 34,

37-41 (1st Cir. 1998). My view of what the record establishes

varies a bit from that of my colleagues.

Saul Mangual Corchado, Jose Lugo Sanchez, and David Silva

sold drugs, including marijuana, cocaine, and heroin, at a drug

point outside Cafetín El Ideal in Trujillo Alto, Puerto Rico.

Cirilo frequented El Ideal, and El Ideal's owner testified that he

was "almost always" with Mangual and Lugo. There was no evidence

that Cirilo himself sold drugs.

-70-
 Lugo correctly suspected that Mejias, who was a regular

drug customer, was an undercover police officer. Lugo told one of

his suppliers -- a man known as "Chispo" -- as much, and in October

1994, Chispo ordered Lugo to kill Mejias. Lugo then told Luis

Antonio Ramirez Ynoa that Chispo had ordered Lugo to kill Mejias.

Lugo testified at trial that he did not tell Cirilo of the order.

In the early afternoon of November 1, 1994, Lugo, Silva,

Ramirez, Mejias, and Cirilo, among others, were present at the El

Ideal drug point. Lugo walked with Mejias to the stoop of a nearby

building, where he accused Mejias of being an informant. Silva and

Ramirez then approached the stoop, and Lugo went to retrieve a

revolver from a car parked in front of El Ideal. Lugo concealed

the gun, and upon walking back towards El Ideal, Lugo encountered

Mangual, Cirilo, and Yito Morales (another drug supplier), all of

whom he encouraged to beat up Mejias. Mangual, Cirilo, and Morales

declined, and Lugo then returned to the stoop, where he had left

Ramirez, Silva, and Mejias. The evidence was unclear as to whether

Cirilo accompanied Lugo to the stoop.

Once back at the stoop, Lugo ordered Mejias at gunpoint

to surrender the keys to his car, a Suzuki parked in front of El

Ideal. Ramirez and Mangual retrieved Mejias's gun from his car

while Cirilo looked on from a vantage point near the car. Lugo

then escorted Mejias back to the Suzuki, where Mejias retrieved his

keys, and Lugo instructed Mejias to get in the Suzuki and "not

-71-
. . . come around there anymore." However, as Mejias was about to

leave, another man, identified as "Papilin," told Lugo that he had

to kill Mejias or otherwise Mejias might come back. There was no

direct evidence that Cirilo heard this comment, and the evidence as

to where Cirilo was standing in relation to Papilin and Lugo was

unclear.

At that point, Lugo ordered Mejias, again at gunpoint, to

get out of the driver's seat and into the back seat of the Suzuki.

Lugo got in the back seat with Mejias, and Mangual got into the

driver's seat. Mangual then drove out of the parking lot and on to

the highway. Cirilo and Ramirez followed in another car. Shortly

after leaving El Ideal, Lugo shot Mejias in the abdomen and in the

head. Thereafter, the cars stopped at a cemetery, where Ramirez

shot Mejias twice more in the head and then got into the passenger

seat of the Suzuki. Lugo got into the other car with Cirilo, and

both cars traveled to a quarry, where Mangual and Ramirez attempted

to push the Suzuki, containing Mejias's body, into the quarry. The

car became suspended, and the four men left the quarry in the car

driven by Cirilo. Later, they split $240 that Lugo had taken from

Mejias's body.

Mangual, Ramirez, Lugo, and Cirilo were later arrested

and indicted for aiding and abetting the murder of an on-duty

police officer in relation to a felony drug offense, 21 U.S.C.

§ 848(e)(1)(B); 18 U.S.C. § 2, carjacking, 18 U.S.C. § 2119, and

-72-
using a firearm during the commission of a crime of violence,

namely the carjacking, id. § 924(c). Lugo entered into a plea

agreement with the government and testified against Mangual,

Ramirez, and Cirilo at trial. In September 1995, Cirilo was

convicted of aiding and abetting the Mejias murder, but acquitted

of the carjacking and firearms charges.97 He was sentenced to life

in prison.

Cirilo appealed his conviction, arguing that the evidence

was insufficient to establish the aiding and abetting offense, and

the conviction was affirmed. Mangual-Corchado, 139 F.3d at 44-49.

His petition for certiorari was denied. Cirilo-Munoz v. United

States, 525 U.S. 942 (1998).

Cirilo then filed a petition for post-conviction relief

under 28 U.S.C. § 2255. One of the issues raised in the petition

involved the district court's application of a sentencing

enhancement based on its finding that Mejias's murder was motivated

by the fact that he was a police officer. Cirilo's counsel had

failed to challenge the application of this enhancement on direct

appeal, despite the fact that it increased Cirilo's Guidelines

range from 27-34 years to life imprisonment. The district court

denied the § 2255 petition, but on appeal this court held that

Cirilo's counsel had been constitutionally ineffective in failing

97
Mangual and Ramirez were convicted on all three counts
and were sentenced to life in prison.

-73-
to raise the issue. Cirilo-Muñoz, 404 F.3d at 531-32. We vacated

Cirilo's sentence and remanded the case to the district court for

re-sentencing. Id. at 532.

On remand, with Booker in mind, the district court first

calculated the range of sentences recommended under the Guidelines,

taking into account a two-level reduction for Cirilo's minor role.

The judge concluded that a sentence within that range was

reasonable, noting that he had considered the factors listed in 18

U.S.C. § 3553 and discussing specifically the seriousness of the

crime as well as Cirilo's good behavior in prison and his

repentance. In response to arguments raised by Cirilo and repeated

here, the judge pointed out that the thinness of evidence against

Cirilo did not change the fact that he had been convicted of aiding

and abetting, and he explained that Lugo's more lenient sentence

resulted from his plea agreement and cooperation with the

government. Although the government had recommended a sentence of

360 months, the judge sentenced Cirilo to 324 months (twenty-seven

years) of imprisonment, the lowest sentence under the Guidelines,

in addition to four years of supervised release and a special

monetary assessment of $50.00.

II.

On appeal, Cirilo raises four claims of error. He first

claims that there was a Guidelines error. Cirilo argues that the

district court should have reduced his base offense level by four

-74-
levels, rather than by two, because he played only a minimal role

in the offense and was not a minor participant, as the court found.

See U.S.S.G. § 3B1.2. Second, Cirilo argues that he was sentenced

for a crime of which he was innocent, and, despite his conviction,

that this violated his Eighth Amendment right against cruel and

unusual punishment. Third, Cirilo argues that his sentence is

unreasonable merely because it is disproportionate to the sentence

received by Lugo, who shot Mejias. Finally, Cirilo argues that the

district court failed to explain adequately how it arrived at his

sentence. See United States v. Jiménez-Beltre, 440 F.3d 514, 519

(1st Cir. 2006) (en banc), cert. denied, 127 S. Ct. 928 (2007).

All four arguments are without merit.

A. Claimed Guidelines Error

At Cirilo's re-sentencing hearing, the district court

determined that Cirilo had played a minor role in the offense and

accordingly was entitled to a two-level reduction in his base

offense level. See U.S.S.G. § 3B1.2(b). Cirilo argues that this

was not enough: the district court should instead have reduced his

base offense level by four levels because the evidence showed that

he was only a minimal participant in the offense.98 See id.

98
Cirilo also attempts to characterize his claim as a due
process claim. He briefly remarks that the district court based
its determination that Cirilo was a minor participant solely on the
fact that he was convicted of aiding and abetting, rather than on
the underlying facts of the case, and that this violated his due
process rights. This argument is waived. See United States v.
Zannino, 895 F.2d 1, 17 (1st Cir. 1990) ("[I]ssues adverted to in

-75-
§ 3B1.2(a). The claimed error is not purely one of law, but of the

district court's application of the law to the facts. We review

the district court's factbound determination for clear error.

United States v. Downs-Moses, 329 F.3d 253, 266 (1st Cir. 2003);

United States v. Wright, 873 F.2d 437, 443-44 (1st Cir. 1989). As

long as the district court's determination is based on reasonable

inferences drawn from adequately supported facts, this court will

not find clear error. United States v. Santos, 357 F.3d 136, 142

(1st Cir. 2004).

The Sentencing Guidelines provide for offense-level

adjustments for a defendant whose degree of participation in the

offense lessens his culpability. A minor participant may be

awarded a two-level reduction of his base offense level, while a

minimal participant may be awarded a four-level reduction.99

U.S.S.G. § 3B1.2. "The difference between a minimal and a minor

a perfunctory manner, unaccompanied by some effort at developed
argumentation, are deemed waived.").
In any event, the district court considered the facts of
the case and there was no due process violation here. The court's
statement that Cirilo was convicted of aiding and abetting and
therefore was "equally culpable" seems to have come in response to
an attack on the strength of Cirilo's conviction, not as a
justification for denying Cirilo's request to consider him a
minimal participant. Indeed, the court did not hold Cirilo equally
culpable, and instead found him to be less culpable than his
co-defendants and therefore entitled to a two-level reduction.
99
The Guidelines also provide for a three-level reduction
when a defendant's role falls between minor and minimal
participation. U.S.S.G. § 3B1.2. Cirilo has not argued that he
was entitled to a three-level reduction.

-76-
participant is a difference of degree, not kind." Santos, 357 F.3d

at 142.

To qualify as a minor participant, a defendant must

demonstrate that he is less culpable than those with whom he acted

and less culpable than the majority of those who participate in

similar crimes. Id. To qualify as a minimal participant, a

defendant must show that "he is substantially less culpable than

his cohorts in the actual offense and that he is substantially less

culpable than the vast majority of those taking part in similar

crimes. In short, a defendant must be a plainly peripheral player

to justify his classification as a minimal participant." Id.

(citation omitted). A lack of knowledge or understanding of the

extent of a criminal enterprise or the activities of others

indicates minimal participation. U.S.S.G. § 3B1.2 cmt. n.4.

Still, being the least culpable defendant in a criminal

conspiracy does not automatically make one a minimal participant:

rather, the minimal participant designation is reserved for the

rare case. Id.; see also, e.g., Santos, 357 F.3d at 142 (minimal

participant standard so hard to meet that it will apply only

rarely); Downs-Moses, 329 F.3d at 266 (similar); United States v.

Munoz, 36 F.3d 1229, 1238 (1st Cir. 1994) (similar); United States

v. Jurado-Lopez, 338 F. Supp. 2d 246, 252 (D. Mass. 2004) (refusing

to grant minimal role adjustment to woman threatened and physically

forced into being a drug mule, given that the minimal role

-77-
adjustment is meant to be used infrequently). Further, if Cirilo

were considered a minimal participant, his twenty-seven-year

sentence would still fall within the applicable Guidelines range.

Cirilo argues primarily that he was a minimal participant

because he lacked knowledge of the scope of the criminal enterprise

-- that is, he claims that he was unaware that Lugo intended to

kill Mejias. That argument is foreclosed by the jury verdict,

which required a finding of foreknowledge. United States v.

Rostoff, 53 F.3d 398, 413 (1st Cir. 1995) (judge cannot sentence

defendants based on determinations that contradict facts implicit

in jury verdict); United States v. Weston, 960 F.2d 212, 218 (1st

Cir. 1992), abrogated on other grounds by Stinson v. United States,

508 U.S. 36 (1993) ("[A] guilty verdict, not set aside, binds the

sentencing court to accept the facts necessarily implicit in the

verdict.").

This court upheld that verdict, affirming the jury's

finding that Cirilo shared Lugo's intent to kill Mejias. See

Mangual-Corchado, 139 F.3d at 44-49. We cannot reconsider here

whether Cirilo had knowledge of the extent of the criminal

enterprise.100

100
Cirilo also -- very briefly -- makes a more generalized
attack on the district court's finding that he was a minor, but not
minimal, participant. He notes that he did not heed Lugo's call to
beat up Mejias, that he did not urge others to participate in the
murder, that he was acquitted of the carjacking counts, and that he
was uninvolved in the drug transactions taking place at El Ideal.
Although there was no evidence that Cirilo sold drugs, there was

-78-
 The district court did not clearly err in its

determination that Cirilo was a minor, but not a minimal,

participant. At the initial sentencing hearing, the court

canvassed the evidence in the case and noted that the evidence

indicated, inter alia, that Cirilo was aware of the plan to kill

Mejias, that he drove Lugo to the quarry and drove his

co-defendants away from the quarry after the car had been pushed

over the embankment, and that he shared in the money that was taken

off of Mejias's body. The district court then explained its

reasons for finding that Cirilo was a minor participant in the

offense. The court stated, "[B]ecause he didn't kill the victim,

because he didn't try to dump the car into the . . . embankment and

. . . he was . . . driving the getaway car, he stayed behind, I'm

going to give him a minor participant, but I'm not going to give

him a minimal because he doesn't qualify as a minimal."

At re-sentencing, Cirilo's counsel asked the court to

reconsider Cirilo's role based on his supposed lack of knowledge.

After hearing counsel's argument, the court again determined that

Cirilo was a minor participant entitled to a two-level reduction.

The court did not at re-sentencing reiterate its earlier given

reasons for applying the minor participant reduction, nor did it

evidence in the record that he bought drugs from Chispo and that he
used drugs provided by Lugo after Mejias had initially been shot.
Cirilo also equates the weight of the evidence against
him with his degree of participation in the crime. These simply
are not the same.

-79-
need to do so. Cf. Jiménez-Beltre, 440 F.3d at 519 ("[A] court's

reasoning can often be inferred by comparing what was argued by the

parties or contained in the pre-sentence report with what the judge

did.").

Based on the record, there is no clear error in the

denial of a minimal participant reduction. Even viewing Cirilo's

argument for a reduction as going beyond the issue of his

knowledge, the argument still fails. The record shows that Cirilo

drove the car that allowed the other participants in the crime to

make a clean getaway. It is not clear error to infer that Cirilo's

co-defendants would not have driven out to the quarry to dispose of

Mejias's body and car if they had not known that they had a means

by which to leave the scene. It was not clear error to conclude

that Lugo and Ramirez valued Cirilo's participation significantly.

When they lost sight of Cirilo's car behind them, they doubled back

along the road until they came upon him, at which point the cars

continued on together. Likewise, the evidence was that Cirilo

shared equally in the proceeds of the murder. The district court's

determination that Cirilo was not merely a peripheral player was

not clearly erroneous.

B. Excessive Punishment

Cirilo argues that he is innocent, and that as a result

his sentence violates the Eighth Amendment's prohibition on cruel

and unusual punishment.

-80-
 We have already rejected the claim of innocence.

Mangual-Corchado, 139 F.3d at 49. Nonetheless, we discuss Cirilo's

two claims of error because they independently are based on flawed

legal premises. Cirilo first argues that he did not aid and abet

in Mejias's killing in connection with a felony violation of Title

II or III of the Controlled Substances Act, Pub. L. No. 91-513, 84

Stat. 1242 (1970), as required by 21 U.S.C. § 848(e)(1)(B). In

support of this argument, Cirilo notes that he was acquitted of

both the carjacking and firearms offenses with which he was

charged. Second, Cirilo argues that he was not engaged in any

continuing criminal enterprise, and that such engagement is

required for conviction under 21 U.S.C. § 848. Cirilo bases this

argument on the fact that the title of § 848 is "Continuing

Criminal Enterprise."

Both strands of Cirilo's argument are flawed. To begin,

§ 848(e)(1)(B) does not require the principal to have been engaged

in a continuing criminal enterprise. Rather, § 848(e)(1)(B)

defines a separate crime -- the killing of a law enforcement

officer in relation to felony violation of federal drug laws --

from that established in § 848(a)-(c). See United States v. NJB,

104 F.3d 630, 633-35 (4th Cir. 1997); United States v. Villarreal,

963 F.2d 725, 727-28 (5th Cir. 1992) ("[Section] 848(e) . . . added

a death penalty provision, not for CCE offenses, but for an

entirely new group of offenses -- intentional murders committed

-81-
during certain specified felonies." (emphasis added)). Likewise,

the carjacking crimes to which Cirilo refers are irrelevant to

conviction under § 848(e)(1)(B), which criminalizes the killing of

a law enforcement officer in connection with certain specified

narcotics felonies.

As to Cirilo's first argument, there was ample evidence

that the killing of Mejias was in relation to the violation of

federal narcotics laws. Lugo suspected that Mejias was an

informant, and Lugo killed Mejias to protect himself and others

from being apprehended as drug dealers. That there was no evidence

in the record that Cirilo himself engaged in drug dealing (but was

merely a purchaser of drugs) is irrelevant. As the judge properly

instructed the jury, a conviction for aiding and abetting does not

require that the defendant have engaged in every act constituting

the substantive offense, but rather only that some person have done

so, and that the defendant have participated voluntarily in the

commission of the crime with the requisite intent to violate the

law. See United States v. Henderson, 320 F.3d 92, 109-10 (1st Cir.

2003); see also United States v. Moran, 312 F.3d 480, 494 (1st Cir.

2002).

C. Fact of Sentence Disparity with Lugo

Cirilo argues that the fact that Lugo was sentenced to

seventeen years in prison (plus another five years for another

crime), while Cirilo received a twenty-seven-year sentence of

-82-
imprisonment, standing alone establishes unreasonableness. He

makes subsidiary arguments that the district court, in discussing

the differential between his and Lugo's sentences, relied on facts

not found by a jury or admitted by him, and that this violated his

Sixth Amendment right to confront witnesses against him.

A claim that a sentence is unreasonable because it is

disproportionate to the sentence of a co-defendant is reviewable

post-Booker. See Jiménez-Beltre, 440 F.3d at 517; see also, e.g.,

United States v. Pierre, 484 F.3d 75, 89-90 (1st Cir. 2007); United

States v. Vázquez-Rivera, 470 F.3d 443, 449 (1st Cir. 2006), cert.

denied, 127 S. Ct. 2951 (2007); United States v. Saez, 444 F.3d 15,

17 (1st Cir. 2006), cert. denied, 127 S. Ct. 224 (2006).

Our main concern with disproportionate sentences is with

disparities between the defendant's sentence and sentences imposed

nationally on defendants in the same circumstances. United States

v. Mueffelman, 470 F.3d 33, 40 (1st Cir. 2006). Normally, a

sentence within the Guidelines range, as Cirilo's sentence was,

likely reflects the national norm. Id. at 40-41. "[A] defendant

is not entitled to a lighter sentence merely because his co-

defendants received lighter sentences," United States v. Gomez-

Pabon, 911 F.2d 847, 862 (1st Cir. 1990), although concerns could

arise if two "identically situated defendants" received different

sentences from the same judge, Mueffelman, 470 F.3d at 41.

-83-
 Lugo and Cirilo were not identically situated. Lugo had

cooperated with the government and testified at trial. We have

noted many times that "[a]lthough a district court may consider

disparities among co-defendants in determining a sentence, [a

defendant's] sentence [is not] unreasonable simply because his

co-defendant[] agreed to help the government in exchange for [a]

reduced sentence[]." Vázquez-Rivera, 470 F.3d at 449; see also

Saez, 444 F.3d at 18; accord United States v. Caine, 487 F.3d 1108

(8th Cir. 2007) (upholding as reasonable a sentence twice as long

as that received by an allegedly more culpable codefendant where

codefendant cooperated and testified for the government); United

States v. Ramirez, 221 Fed. Appx. 883, 887-88 (11th Cir. 2007)

(upholding as reasonable a sixteen-year sentence for a peripheral

participant with no criminal history, even though a more central

player received a seven-year sentence, where the more central

player had assisted the government's investigation); United States

v. Boscarino, 437 F.3d 634 (7th Cir. 2006), cert. denied, 127 U.S.

3041 (2007) (upholding as reasonable a sentence longer than that

imposed on codefendant, even though codefendant's Guidelines range

was higher, where that codefendant had cooperated with the

government). Similarly, we have repeatedly found that reduced

sentences for those who plead guilty do not render unreasonable

longer sentences for less culpable defendants who continue to

trial. See United States v. Martínez-Vives, 475 F.3d 48, 55-56

-84-
(1st Cir. 2007) (upholding as reasonable a longer sentence than

that imposed on a more culpable defendant where the more culpable

defendant pleaded guilty); United States v. Navedo-Concepción, 450

F.3d 54, 60 (1st Cir. 2006) (affirming 151-month sentence for

defendant even though leader of the conspiracy who pleaded guilty

received a 63-month sentence); cf. United States v. Thurston, 456

F.3d 211, 216, 220 (1st Cir. 2006), pet. for cert. filed, 75

U.S.L.W. 3121 (Sept. 14, 2006) (No. 06-378) (requiring a minimum

sentence of three years for defendant even though his cohort, who

pled guilty, received only probation). "[W]here the defendant's

own sentence has been justified and the basis for a co-defendant's

lesser sentence is set forth or is apparent, no more precise

calibration of the difference between them is customarily feasible,

let alone required." Mueffelman, 470 F.3d at 41.

D. Explanation of Reasons for Sentencing Disparity

Cirilo argues that the district court did not adequately

consider the sentencing factors laid out in 18 U.S.C. § 3553(a).101

101
Cirilo mentions his "success in prison" as a factor that
should have been considered by the court. This argument goes
nowhere.
He also makes an incoherent Confrontation Clause claim. As
Cirilo concedes, the Sixth Amendment confrontation right does not
attach at sentencing. United States v. Rodriguez, 336 F.3d 67, 71
(1st Cir. 2003); see also United States v. Luciano, 414 F.3d 174,
179 (1st Cir. 2005). In a variation on a theme, Cirilo argues that
his case "warrants . . . special prophylaxis" because the evidence
against him was thin and Lugo testified that Cirilo was innocent.
See United States v. Tardiff, 969 F.2d 1283, 1287 (1st Cir. 1992).
We reject this argument. See Mangual-Corchado, 139 F.3d at 46 n.26
(discussing the import of Lugo's testimony regarding Cirilo's

-85-
Cirilo's argument is focused on the district court's explanation of

its reasons for sentencing him to twenty-seven years' imprisonment.

See Jiménez-Beltre, 440 F.3d at 519; see also 18 U.S.C. § 3553(c).

In Jiménez-Beltre, this court emphasized the importance

of having a reasoned explanation of a district court's decision to

impose a particular sentence. 440 F.3d at 519; see also United

States v. García-Carrasquillo, 483 F.3d 124, 132 (1st Cir. 2007)

("An important prerequisite to our reasonableness analysis is the

district court's reasoned explanation for the sentence imposed

. . . ."); Vázquez-Rivera, 470 F.3d at 448.

The district court adequately explained its reasons for

imposing a twenty-seven-year sentence here. The court discussed in

detail the seriousness of the substantive offense and noted that

because the crime was so serious, it was disinclined to sentence

Cirilo below the Guidelines range.102 It addressed the sentencing

disparity by emphasizing Lugo's cooperation,103 and it noted that

knowledge).
102
"I considered that crime a very serious and heinous
crime, a man begging for his life, had a baby of four months; he
was shot in the back, in the abdomen, and then he's shot in the
head. . . . If there's a more serious crime than that, let me
know."
103
"At this point, let me say that Defendant Lugo Sanchez
was the person who knocked at the Government's door first, and
that's why he made a deal . . . . [B]ecause of his testimony, these
other defendants were convicted. . . . So that extensive
cooperation and his testimony at trial warranted that the Court
agreed to the Government's Plea Agreement."

-86-
Lugo had been sentenced to a longer term than the government had in

fact requested. The court also explained its decision to sentence

Cirilo at the low end of the Guidelines range: The court noted that

Cirilo had thought about his behavior, had acknowledged the

seriousness of the offense, and seemed to be repentant. In

addition, the court discussed its belief that Cirilo was using his

time in custody well and could become a useful citizen.104 The

district court did consider a range of factors, and in weighing

them, it did not reach an inherently unreasonable result. See,

e.g., United States v. Shelton, 490 F.3d 74, 80 (1st Cir. 2007),

pet. for cert. filed, (June 27, 2007) (No. 07-5041) (upholding as

reasonable a sentence at the bottom of the applicable Guidelines

range despite defendant's diminished capacity and tragic history);

Ramirez, 221 Fed. Appx. at 888 (sentencing minor peripheral

participant with no criminal history to bottom of Guidelines range

is not "out of the 'range of reasonable sentences from which the

district court may choose'" (quoting United States v. Talley, 431

F.3d 784, 788 (11th Cir. 2005))).

The majority argues that the explanation given by the

sentencing judge is inadequate as to why he did not further reduce

104
"I think that you are on the right path, and that's why
I'm giving you the lower end. . . . I notice you have received some
awards, and you have learned English. . . . So that speaks highly
of you. I hope that I am not wrong when I predict that you will be
a useful citizen and that you will not let your family, nor the
Court down when you come back."

-87-
defendant's sentence in light of the sentence Lugo obtained. Like

my colleagues, I am concerned that Lugo may have received too

lenient a sentence. Unlike my colleagues, I do not consider that

this provides a basis for requiring further explanation than

already given for not further reducing defendant's sentence. It is

self-evident that one lenient sentence to a pleading and

cooperating co-defendant cannot be permitted to create a downward

spiral in sentences. Such a spiral itself would undermine public

trust and confidence, as well as the interest in national

uniformity in sentencing. Cirilo was fairly sentenced at the low

end of the Guidelines range, and the court explained its reasons

for going no lower. The offense here is very serious: an

undercover agent and father of a young family was murdered while he

pleaded for his life. In light of that seriousness, the leniency

already shown, and the explanation given, I doubt whether there is

even a "colorable argument that the sentence is unreasonably

severe." United States v. Gammicchia, ___ F.3d ___, 2007 WL

2265134 at *3 (7th Cir. Aug. 9, 2007).

I do not begrudge my colleagues their desire for a fuller

explanation; I just disagree that one is required.

-88-