United States Court of Appeals
For the First Circuit
No. 07-2134
UNITED STATES OF AMERICA,
Appellee,
v.
YNOCENCIO GONZÁLEZ-CASTILLO,
a/k/a Freddy Mora, a/k/a Freddy Correa,
a/k/a Ynocencio González,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Carmen Consuelo Cerezo, U.S. District Judge]
Before
Torruella, Selya, and Leval,*
Circuit Judges.
Raymond L. Sánchez-Maceira, on brief for appellant.
Julia M. Meconiates, Assistant United States Attorney, Rosa
Emilia Rodríguez-Vélez, United States Attorney, and Nelson Pérez-
Sosa, Assistant United States Attorney, Chief, Appellate Division,
on brief for appellee.
April 9, 2009
*
Of the Second Circuit, sitting by designation.
TORRUELLA, Circuit Judge. In this sentencing appeal,
appellant, Ynocencio González-Castillo ("González") -- a Dominican
national who pled guilty to unlawfully entering the United States
after being previously deported –- challenges the sentence imposed
on him by the district court. The only issue presented is whether
the sentencing court committed plain error when it imposed a
sentence based, in part, on a fact not supported by the record.
After careful consideration, we conclude that the facts presented
by this appeal require that appellant's sentence be vacated and
that the case be remanded for resentencing.
I. Background
On November 13, 2006, appellant was detained by the
Border Patrol near Isabela, Puerto Rico, for a possible immigration
law violation. Appellant was suspected of being an undocumented
Dominican national who had illegally disembarked a few hours
earlier from a migrant vessel. Thereafter, an investigation was
conducted, during which a comparison of appellant's fingerprints
identified him as being a previously convicted felon who had been
removed from the United States on February 2, 2005 for the
commission of an aggravated felony. Appellant was consequently
ordered detained without bail.
On February 23, 2007, the appellant pled guilty to
unlawful entry into the United States after being previously
deported for commission of an aggravated felony in violation of 8
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U.S.C. § 1326(a)(2), (b)(2). His guideline sentencing range
("GSR") was determined to be 57 to 71 months. At the sentencing
hearing the court stated that "[t]his is [appellant's] second entry
into the United States without obtaining prior consent or
authorization from the U.S. Attorney General" (emphasis added) and
also made reference to his record of two prior drug convictions as
well as one for a weapons violation. Thereafter, the court
reemphasized the appellant's multiple illegal entries as an
important factor in determining his sentence, stating that, "[i]n
light of Defendant's prior convictions [and] his two illegal
entries in a two-year period, into the United States, deterrence is
the salient factor in this particular case." (emphasis added).1 No
1
The sentencing court made these statements in the context of the
following recitation at the sentencing hearing:
Before the Court is a 40-year-old Dominican
national whose immigration status is that of
an illegal alien. This is his second entry
into the United States without obtaining prior
consent or authorization from the U.S.
Attorney General. He was previously deported
in the year 2004 as an aggravated felon upon a
drug felony conviction in the district of New
York. He has a record of two prior drug
convictions and a weapons conviction.
In light of Defendant's prior convictions, his
two illegal entries in a two-year period, into
the United States, deterrence is the salient
factor in this particular case. Therefore,
the Court finds that a sentence within the
applicable advisory guideline range is
sufficient but not greater than necessary to
meet statutory objectives of punishment and
deterrence in this case.
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objection was made by appellant's counsel to the court's statements
regarding defendant's "two illegal entries." Additionally, neither
the government attorney nor the probation officer present at the
sentencing hearing indicated any disagreement with the accuracy of
this factual conclusion. Appellant was ultimately sentenced to 71
months' imprisonment, the high end of the applicable GSR.
As it turns out, and as the government concedes, there is
nothing in the record to support the district court's assertion
that this was appellant's second illegal entry into the United
States, given that nothing in the record suggests that appellant's
first entry into the United States was illegal or that any
subsequent illegal entries took place. The record and the Pre-
Sentence Report ("PSR") indicate that, after González's first entry
into the United States in 1996, "[h]e adjusted his residency in
1997, when he married." This fact establishes that, at least after
1997 and prior to his deportation in 2004, appellant was legally in
the United States. That appellant held legal status during this
period is confirmed by the fact that when appellant was deported on
February 2, 2004, he was not deported as an illegal alien, but as
a permanent resident alien who had committed an aggravated felony.
Moreover, the fact that appellant was able to adjust his status
legally through marriage renders it less likely that his initial
entry in 1996 was illegal, as lawful entry is, in the vast majority
of cases, a prerequisite for adjustment. See, e.g., 8 U.S.C.
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§ 1255(a) (stating that the "status of an alien who was inspected
and admitted or paroled into the United States . . . may be
adjusted . . . to that of an alien lawfully admitted for permanent
residence" (emphasis added)). At the very least, a contrary
inference cannot be presumed. Finally, even if appellant's first
entry into the United States in 1996 were illegal, a fact for which
there is absolutely no support in the record, this still would not
support the court's assertion at the 2007 sentencing hearing, that
appellant had committed two illegal entries in a two-year period.
The district court's error in basing appellant's sentence on these
unsupportable factual assertions forms the basis of the instant
appeal.
II. Discussion
Because appellant's lawyer failed to object at sentencing
to the district court's unsupported statement regarding his
multiple illegal entries, "we review for plain error." United
States v. Mangual-García, 505 F.3d 1, 15 (1st Cir. 2007).2 For us
to vacate a sentence under the plain error standard, appellant
bears the burden of establishing that "(1) an error occurred; (2)
the error was clear and obvious; (3) the error affected the
defendant's substantial rights; and (4) the error impaired the
2
Notwithstanding the failure of González's attorney to raise the
error, we note that the government also contributed to the error by
failing to call the matter to the attention of the sentencing
court.
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fairness, integrity, or public reputation of the judicial
proceedings." Id.
We keep in mind that in reviewing the reasonableness of
a sentence, we must first determine whether the district court
committed any procedural errors. United States v. Politano, 522
F.3d 69, 72 (1st Cir. 2008). Such errors include "selecting a
sentence based on clearly erroneous facts." Gall v. United States,
128 S. Ct. 586, 597 (2007).
Applying the plain error standard, we find that there is
no question that an error occurred, a point that the government now
concedes. Nor does the government dispute that the error was
"clear and obvious," as it certainly was, given that, as explained
above, the subject of the present conviction is the only instance
of an illegal entry by the appellant at any time shown anywhere in
the record. See Mangual-García, 505 F.3d at 15. Notably, this was
a procedural error, which, under a different procedural posture,
would constitute an "abuse of discretion." See United States v.
Torres, 541 F.3d 48, 51 (1st Cir. 2008) (listing "selecting a
sentence based on clearly erroneous facts" as among the "procedural
errors amounting to an abuse of discretion" by the sentencing
court).
Nevertheless, because our review is for plain error, we
must proceed to the third and fourth prongs of the plain error
analysis and inquire whether the sentencing court's error affected
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appellant's substantial rights, and whether basing the sentence on
this erroneous fact of apparent significance to the sentencing
court impaired the fairness, integrity or public reputation of the
judicial proceeding. We believe that the answer to both inquiries
favors the appellant.
First, in terms of substantial rights, this prong of the
plain error inquiry translates, in the sentencing context, into the
requirement of "a reasonable probability that, but for the error,
the district court would have imposed a different, more favorable
sentence." United States v. Perazza-Mercado, 553 F.3d 65, 78 (1st
Cir. 2009) (quoting United States v. Gilman, 478 F.3d 440, 447 (1st
Cir. 2007)). The government is in a tenuous position in arguing
that appellant's rights were not substantially affected by the
sentencing court's assumption of the unsupported fact. The nature
of the error was such that the court erroneously believed that the
appellant had already committed, within a two-year period, the very
same crime for which he was then being sentenced, namely, illegal
entry. This unsupported "fact," "two illegal entries in a two-year
period," became, along with the appellant's "prior convictions," a
primary reason why the court chose, in its words, to make
deterrence "the salient factor" in this case. It then proceeded to
impose the highest sentence possible within the applicable GSR.
There is, no doubt, a reasonable probability that had the taint of
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this factual error been absent, the weight behind a deterrence-
driven sentence would have been substantially reduced.
Moreover, in assessing the importance attributed by the
court to this unfounded "fact," we find it particularly telling
that the court mentioned the "fact" twice in explaining the top-of-
the-GSR, deterrence-driven sentence ultimately imposed. There is
certainly a "reasonable probability" that, but for the error,
González would have received a lesser sentence. See id. at 78.
Thus, in view of the sentencing court's explanatory statements, it
would be contrary to logic to conclude that the court's factual
error did not affect appellant's substantial rights.
Lastly, we believe that basing a substantial criminal
sentence on a non-existent material fact threatens to compromise
the fairness, integrity, or public reputation of the proceedings.
It is well-established that a criminal defendant holds "a due
process right to be sentenced upon information which is not false
or materially incorrect." United States v. Pellerito, 918 F.2d
999, 1002 (1st Cir. 1990); see also Townsend v. Burke, 334 U.S.
736, 740-41 (1948). We think that the fairness of appellant's
sentence was impaired by the deprivation of this right and
therefore, even under plain error review, we should exercise our
discretion to afford him a new sentencing hearing.
The sentence imposed on appellant is vacated and the case
is remanded for action consistent with this opinion.
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Vacated and Remanded.
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