United States Court of Appeals
For the First Circuit
No. 08-1830
UNITED STATES,
Appellee,
v.
ERNESTO CIRILO-MUÑOZ,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Jay A. García-Gregory, U.S. District Judge]
Before
Torruella, Stahl and Lipez,
Circuit Judges.
Rafael Anglada-López on brief for appellant.
Nelson Pérez-Sosa, Assistant U.S. Attorney, Julia M.
Meconiates, Assistant U.S. Attorney, and Rosa Emilia Rodriguez-
Velez, United States Attorney, on brief for appellee.
September 4, 2009
Per Curiam. Upon remand from this court, see United
States v. Cirilo-Muñoz, 504 F.3d 106 (1st Cir. 2007), Ernesto
Cirilo-Muñoz was resentenced to the statutory mandatory minimum
sentence of 240 months. Cirilo-Muñoz once again appeals.
He asks, in conclusory fashion, that we declare the
statutory mandatory minimum unconstitutional as applied to him, but
he supplies no supporting argument. He did not present a
constitutionally-based argument below so the claim is waived.
The argument that Cirilo-Muñoz did raise below and which
he reiterates in somewhat fleeting fashion here is unavailing.
Courts have uniformly rejected the claim that § 3553(a)'s "no
greater than necessary" language authorizes a district court to
sentence below the statutory minimum. See United States v. Samas,
561 F.3d 108, 110-111 (2d Cir. 2009), petition for cert. filed,
(U.S. Jun. 22, 2009) (No. 08-11058); United States v. Huskey, 502
F.3d 1196, 1200 (10th Cir. 2007); United States v. Franklin, 499
F.3d 578, 585 (6th Cir. 2007); United States v. Roberson, 474 F.3d
432, 436 (7th Cir. 2007).
There being neither error of law nor abuse of discretion
in the imposition of the statutory mandatory minimum sentence, the
judgment of the district court entered on June 12, 2008 is
affirmed.
- Concurring Opinion Follows -
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TORRUELLA, Circuit Judge (concurring in the judgment).
This case, and its outcome, is a notorious example of oppressive
injustice culminating in an outrageous adjudication. It is a stain
on the robes of American justice. Appellant Cirilo-Muñoz was
convicted of aiding and abetting the murder of an on-duty police
officer. He was convicted even though his co-defendant Lugo-
Sánchez, the murderer himself, who initially tried to pin
Cirilo-Muñoz for the murder and was the government's star witness,
"testified unequivocally that Cirilo[-Muñoz] had no advance
knowledge about his plan to murder . . . and did not assist him in
committing the murder in any way." United States v.
Mangual-Corchado, 139 F.3d 34, 50 (1st Cir. 1998) (McAuliffe, J.,
dissenting). We are now called upon to affirm the imposition of a
harsh mandatory minimum sentence, which only compounds the
injustice caused by Cirilo-Muñoz's conviction. Because I have
taken an oath to uphold the law irrespective of my personal views,
I am left without a principled choice in this appeal other than to
concur, and, in the process, register my most vehement disagreement
with the warped outcome of this case.
As I have previously expressed elsewhere, there are many
aspects of this case's long and troubled history that call into
question the fairness of our criminal justice system. See United
States v. Cirilo-Muñoz, 504 F.3d 106 (1st Cir. 2007) (decision of
Torruella, J.); Cirilo-Muñoz v. United States, 404 F.3d 527, 533-37
-3-
(1st Cir. 2005) (Torruella, J., concurring). Chief among these
defects is a mistake made by our own court eleven years ago when it
found the evidence at trial sufficient to establish that
Cirilo-Muñoz had foreknowledge that his accomplice would kill the
undercover officer. Mangual-Corchado, 139 F.3d at 44-49. The
error of this decision is cogently and thoroughly expressed by
Judge McAuliffe in his dissent. See id. at 49-56.
Were I on the original panel in Mangual-Corchado, I would
have voted to vacate Cirilo-Muñoz's conviction. Were the issue
brought before us again, I would vote to revisit that decision; the
finding that the evidence was sufficient is so "obviously wrong" as
to rise to the level of "manifest injustice" vitiating the law of
the case doctrine. See Ellis v. United States, 313 F.3d 636,
647-48 (1st Cir. 2002); see also Conley v. United States, 323 F.3d
7, 13 (1st Cir. 2003) (en banc) (Boudin, C.J.) ("Law of the case is
not a straight jacket but can be avoided -- at the discretion of
the court that made the invoked ruling -- on several different
bases."); cf. id. at 14 (distinguishing precedent limiting
restrictions on post conviction review where only "intra-federal
proceedings" are involved).1 But the sufficiency of the evidence
1
For a full review of the tortuous procedural history of the
Conley saga, a situation not totally irrelevant to the present
case, see United States v. Conley, 186 F.3d 7 (1st Cir. 1999)
"Conley I"), cert. denied, 529 U.S. 1017 (2000); United States v.
Conley, 103 F. Supp. 2d 45 (D. Mass. 2000) ("Conley II"); United
States v. Conley, 249 F.3d 38 (1st Cir. 2001) ("Conley III");
Conley v. United States, 164 F. Supp. 2d 216 (D. Mass. 2001)
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supporting Cirilo-Muñoz's conviction is not the issue presented in
this appeal, and I see no way, under the present posture of this
case, to reopen his conviction, unless he were to develop grounds
for filing a new collateral challenge. See Calderón v. Thompson,
523 U.S. 538 (1998); see also In re Davis, 2009 WL 2486475 (U.S.
Aug. 17, 2009) (appellant's original petition for writ of habeas
corpus remanded to district court to consider alleged new evidence
of innocence, eighteen years after conviction for murder of a
police officer).2
("Conley IV").
2
I note that In re Davis, although distinguishable in material
respects, does offer Cirilo-Muñoz a glimmer of hope at achieving
relief from his improper conviction. Davis involves an eighteen-
year-old state conviction, in which the petitioner on a subsequent
petition for collateral review claimed mere presence during the
murder of a police officer, supported by new evidence in the nature
of several exculpatory affidavits not presented at trial. In
dissent, Justice Scalia questioned whether any of "the allegedly
new evidence" was in fact new, as it had "already been considered
(and rejected) multiple times." Id. at *2-4 (Scalia, J.,
dissenting).
Although Cirilo-Muñoz presents no new evidence of actual
innocence here, the fact that the Supreme Court is willing to
revisit a conviction even older than Cirilo-Muñoz's provides some
hope that the Supreme Court (or even our court) would revisit
Cirilo-Muñoz's conviction should he procure new evidence of his
actual innocence. See 28 U.S.C. § 2244(b)(3)(A) (outline grounds
for filing second or successive habeas petition with court of
appeals). In fact, if Justice Scalia's claim is true, then Davis
leaves open just how "new" the evidence has to be to permit a court
to review Cirilo-Muñoz's conviction.
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In again registering my concern with his conviction, I
can only invoke (and not improve on) the words of Judge Easterbrook:
Nothing we do as judges in criminal cases is
more important than assuring that the innocent
go free. . . . False accusations of crime must
be caught by prosecutor and petit jury; we
cannot reverse a conviction just because the
main witnesses may have been confused or,
worse, [are] liars. Now and again, however, a
case arrives in which something transparently
has gone wrong, and we must act. Every time
we reverse a conviction on account of
insufficient evidence, we avert many
more . . . .
United States v. Martínez de Ortiz, 883 F.2d 515, 524 (7th Cir.
1989) (Easterbrook, J. concurring); rehearing granted; judgment
vacated, 897 F.2d 220 (7th Cir. 1990); superseded by 907 F.2d 629
(7th Cir. 1990) (en banc).
What we are presented in this appeal raises a fresh and
separate injustice. The twenty-year mandatory minimum sentence
imposed on Cirilo-Muñoz is yet another example of the imprecise and
overly harsh application of our restrictive sentencing regime. See
United States v. Poland, 562 F.3d 35, 43 (1st Cir. 2009)
(Torruella, J., concurring) (criticizing the mandatory minimum in
that case, stating "[i]n the real life scenario of sentencing, such
a regime makes little sense because it takes away much of the
discretion from where it should be, those on the front lines of the
criminal justice system"). This regime imposes a mandatory minimum
sentence on Cirilo-Muñoz that is three years longer than that
imposed on Lugo-Sánchez, the one who actually orchestrated and
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committed the murder. Cf. Cirilo-Muñoz, 504 F.3d at 126
(Torruella, J.) (remanding for resentencing, in part, because
"[e]ven in our legal system, the cases that are reported do not
support the disparity extant in this case between Cirilo-Muñoz, a
minor aider and abettor, and Lugo[-Sánchez], the principal and
murderer").
The district court's comments at sentencing encapsulate
the absurdity of this case:
The Court has reviewed the record in this case
and finds that this defendant, in this case,
especially concerning the evidence that was
presented at trial, had a mitigating [sic]
role. Defendant had lack -- according to the
evidence, and for sentencing purposes, had
lack of prior knowledge of Mr. Lugo[-
Sánchez]'s plans and intentions to kill the
undercover police officer. In fact, the
defendant turned down two of Mr. Lugo[-
Sánchez]'s invitation's to injure the victim
in this case. Moreover, defendant was nowhere
in the vicinity when Mr. Lugo[-Sánchez] killed
the victim. Lastly, Mr. Lugo[-Sánchez]
testified that he did not know the defendant
had followed him and that he did not ask him
to do so.
The district court made these findings on a preponderance of the
evidence standard, which only underscores that the evidence was
insufficient to convict Cirilo-Muñoz in the first place. But, the
district court was further straight-jacketed by the mandate of
Congress into imposing the statutory minimum of twenty years
imprisonment. And we are similarly straight-jacketed into
affirming that sentence.
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A series of coincidences have laid bare a system of law,
which in Cirilo-Muñoz's particular circumstances has failed to
protect him from the oppressive power of government and its
bureaucracy. The result is that a seventeen-year-old adolescent
has been condemned to spending his entire adult life incarcerated
in a federal prison. To this wrongful outcome have contributed all
three branches of government, with Congress making its contribution
on this appeal through its draconian mandatory minimums.
Our prior decisions and the laws passed by Congress
command this result, which I must obey. I write this opinion so
that this injustice is not forgotten in our otherwise summary
disposal of Cirilo-Muñoz's appeal. His case calls out for clemency
and relief, and should serve to remind us both of the flaws in our
system of adjudicating guilt and the dangers of mandatory minimums.
I thus concur in the judgment.
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