United States v. Millan-Isaac

United States Court of Appeals
For the First Circuit

Nos. 12-1693,
12-1769

UNITED STATES OF AMERICA,

Appellee,

v.

HERIBERTO MILLÁN-ISAAC;
JOSÉ A. CABEZUDO-KUILAN,

Defendants, Appellants.

APPEALS FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. José Antonio Fusté, U.S. District Judge]

Before
Torruella, Baldock,* and Kayatta,
Circuit Judges.

Megan Barbero, with whom Wilmer Cutler Pickering Hale and Dorr
LLP, Gregory P. Teran, and Rachel I. Gurvich, were on brief for
appellant Cabezudo-Kuilan.
Julie Soderlund, for appellant Millán-Isaac.
Juan Carlos Reyes-Ramos, Assistant United States Attorney,
with whom Rosa Emilia Rodríguez-Vélez, United States Attorney, and
Nelson Pérez-Sosa, Assistant United States Attorney, Chief,
Appellate Division, were on brief for appellee.

April 18, 2014

*
Of the Tenth Circuit, sitting by designation.
 TORRUELLA, Circuit Judge. Defendants-Appellants José

Cabezudo-Kuilan ("Cabezudo") and Heriberto Millán-Isaac ("Millán")

pled guilty to aiding and abetting a robbery and possessing a

firearm during a crime of violence. At back-to-back sentencing

hearings, the district court first sentenced Millán to 180 months

of imprisonment and then sentenced Cabezudo to 114 months of

imprisonment. Immediately after sentencing Cabezudo, however, the

sentencing judge sua sponte elected to bring back Millán and to

decrease his sentence from 180 to 120 months of imprisonment.

On appeal, both Appellants challenge their respective

sentences. Cabezudo alleges that the district court violated the

Jones Act by considering untranslated, Spanish-language text

messages during his sentencing and that his sentence is

procedurally unreasonable. Millán claims that the district court

erred by sentencing him on the basis of factual information

discussed at Cabezudo's sentencing hearing for which he was not

present and to which he could not respond. After careful

consideration, we find that the district court plainly erred in

sentencing both Appellants, and we thus remand for resentencing.

I. Background

A. Factual and procedural background

In November of 2011, Cabezudo was nineteen years old,

working as a welder and supplementing his income by loaning money

to others and charging interest. Millán was twenty-one years old

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and working part-time as a sales person in a clothing store.

Cabezudo provided Millán with a loan of $150, to be paid back in

installments of $40 every Saturday. When Millán was unable to make

one of these scheduled payments, Cabezudo suggested via text

message that Millán commit a robbery in order to get the money to

repay him. Millán agreed on the condition that Cabezudo act as the

getaway driver.

On November 26, 2011, Cabezudo drove to Millán's home,

picked him up, and drove to a Burger King in Bayamón, Puerto Rico.

That night, while Cabezudo waited in the car, Millán entered the

restaurant, showed the cashier an unloaded firearm, and told her to

give him the money from the register. The cashier complied and

placed $114 on the counter, which Millán grabbed before running out

the door. The Burger King's manager followed Millán, however, and

he quickly flagged down nearby police officers who were patrolling

the area. Shortly after Millán reentered Cabezudo's car, the

police officers approached the vehicle. Cabezudo turned off the

ignition, and the duo surrendered.

Following their arrest and pursuant to their plea

agreements, both Cabezudo and Millán pled guilty to aiding and

abetting each other in the commission of a robbery in violation of

the Hobbs Act, 18 U.S.C. § 1951 ("Count One"), and to possessing a

firearm during a crime of violence in violation of 18 U.S.C.

§ 924(c)(1)(A) ("Count Two"). Cabezudo's plea agreement provided

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a base offense level of 20 for Count One, reduced by 3 levels for

acceptance of responsibility. Pursuant to the U.S. Sentencing

Guidelines, this resulted in a Guidelines Sentence Range ("GSR") of

24-30 months for Count One, and the government agreed to recommend

a 24-month sentence. For Count Two, the Guidelines sentence was

equivalent to the mandatory minimum sentence of 60 months, which

the government agreed to recommend, for a total recommendation of

84 months of imprisonment on the two counts. The Pre-Sentencing

Report ("PSR") confirmed these Guidelines calculations.

Millán's plea agreement resulted in an identical GSR of

24 to 30 months for Count One, with the government similarly

agreeing to recommend a low-end sentence of 24 months of

imprisonment. Unlike Cabezudo, however, Millán pled guilty to

"brandishing" the firearm on Count Two, which carried a higher

mandatory minimum of 84 months, for a total recommendation of 108

months of imprisonment.

B. Sentencing

On April 23, 2012, the district court conducted back-to-

back sentencing hearings for Millán and Cabezudo, with Millán

appearing first. The sentencing judge calculated Millán's GSR as

to Count One to be 24 to 30 months, and he noted that the statutory

minimum for Count Two was seven years (84 months) of imprisonment.

The judge then determined that an upward variance was appropriate

and announced a sentence of 60 months of imprisonment on Count One

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and 120 months on Count Two, to run consecutively. Defense counsel

for Millán did not object to the sentence, and Millán left the

courtroom.

The district court then proceeded to sentence Cabezudo.

Cabezudo's attorney argued at length that the court should accept

the 84-month sentence recommended in the plea agreement. To this

end, counsel for Cabezudo proceeded to summarize a text message

exchange between Cabezudo and Millán that he believed showed that

Cabezudo's decision to participate in the robbery was

uncharacteristic and a "spur of the moment thing" that he was

initially reluctant to do. According to counsel, although Cabezudo

first suggested the robbery as a means for Millán to pay him back,

when Millán asked him to join in the robbery, he hesitated and

demonstrated reluctance to participate before eventually agreeing.

After counsel finished summarizing the messages, the

sentencing judge asked if a written version of the text messages

was available. Defense counsel could not find a copy of the text

messages, so the sentencing judge said that he was willing to

accept the summary as accurate. The government agreed that defense

counsel's summary of the texts was accurate. At that point,

however, the Probation Officer located a copy of the text messages

-- untranslated and in Spanish -- and provided it to the sentencing

judge. The judge then read the messages from the bench and briefly

discussed them with counsel.

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 At the conclusion of Cabezudo's sentencing hearing, the

district court announced that it was "going to impose the high end

of the Guidelines on the robbery, which is 30 months. And I am

going to impose 84 months on the gun, consecutive." When defense

counsel protested that the plea agreement's recommendation of 84

months was sufficient, the court responded in an unusual manner,

commenting that "the sentence I imposed on the other gentleman

perhaps is too high, and we're going to change them both."

Then, immediately after Cabezudo's sentencing hearing

ended, the court recalled Millán. During the course of a minute,

the court confirmed that Millán's counsel had been present during

Cabezudo's sentencing and noted that his previously announced

sentence was "too high." The judge then stated that "[o]n the

basis of what we were able to get to know, on the basis of the

sentence of the codefendant, and on the basis of what we have

discussed, I think perhaps I should lower the sentence imposed on

your client." The district court proceeded to sentence Millán to

30 months on Count One and 90 months on Count Two for a combined

sentence of 120 months of imprisonment. Millán's counsel thanked

the court, and the proceeding concluded.

On May 7, 2012, Cabezudo filed a motion for

reconsideration, arguing that his 114-month sentence was

unreasonable in light of his history and the circumstances of the

offense. The district court denied the motion, stating that "[t]he

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record at sentencing, and the text messages exchanged between the

two defendants and read by the court confirm that this was a

coldly-planned robbery." This timely appeal followed.

II. Analysis

On appeal, Cabezudo contends that the district court's

reliance on untranslated, Spanish-language text messages at

sentencing violated section 42 of the Jones Act, which requires

that "[a]ll pleadings and proceedings in the United States District

Court for the District of Puerto Rico . . . be conducted in the

English language." 48 U.S.C. § 864 ("Jones Act" or "English-

language requirement"). Additionally, he argues that his sentence

is procedurally unreasonable because the district court failed to

calculate the applicable GSR and failed to adequately explain its

sentence. Millán contends that the district court erred by

considering new, material information at his sentencing hearing

that he had no meaningful opportunity to rebut. We address the

claims of each Appellant in turn.

A. Cabezudo

1. The Jones Act

Cabezudo argues that the district court violated the

Jones Act by relying on untranslated, Spanish-language text

messages during sentencing. He suggests that we must vacate his

sentence because the untranslated messages could have been outcome-

determinative and we are unable to review them on appeal. Before

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we can address the merits of Cabezudo's argument, however, we must

first address the government's contention that Cabezudo effectively

waived his Jones Act claim below and cannot appeal from a

"situation he created." In the government's view, Cabezudo's

failure to object to the Spanish-language texts before the district

court ought to constitute waiver because Cabezudo's counsel invited

the error when he "first brought up the text messages and

encouraged the court to review the same." We disagree.

As an initial matter, we note that "it is the independent

duty of the district court to make sure that '[a]ll pleadings . . .

be conducted in the English language.'" United States v. Rivera-

Rosario, 300 F.3d 1, 6 (1st Cir. 2002) (quoting 48 U.S.C. § 864).

This duty must not be taken lightly, as it ensures that the

District of Puerto Rico remains an integrated part of the federal

judiciary. See Estades-Negroni v. Assocs. Corp. of N. Am., 359

F.3d 1, 2 (1st Cir. 2004) (discussing the importance of the

English-language requirement). We have repeatedly characterized

the policy interest of integration as "too great to allow parties

to convert that court into a Spanish language court at their whim,"

Puerto Ricans for P.R. Party v. Dalmau, 544 F.3d 58, 67 (1st Cir.

2008) (quoting Rivera-Rosario, 300 F.3d at 8 n.9), and we reiterate

that the duty of the court to ensure compliance with the Jones Act

is not lessened in cases where counsel acquiesces or even

-8-
encourages the district court to set aside the English-language

requirement. Rivera-Rosario, 300 F.3d at 8 n.9.

Although the district court's duty remains unchanged even

in cases where defense counsel encourages the court to violate the

Jones Act, the record makes clear that there was no such

encouragement in this case, and that no waiver occurred. As the

government concedes, waiver requires the "intentional

relinquishment of a known right," not a mere failure to object.

United States v. Torres-Rosario, 658 F.3d 110, 115-16 (1st Cir.

2011). In an effort to demonstrate intentional relinquishment, the

government claims that Cabezudo's counsel encouraged the court to

review the untranslated messages at sentencing. The record shows

otherwise. While Cabezudo's counsel certainly introduced the

subject of the text messages at sentencing, he did so by

summarizing the contents of the messages in English. The district

court then asked defense counsel if he had a copy of the messages

with him, counsel explained that he did not, and the district court

stated that it was willing to accept defense counsel's summary as

accurate. At this point, the Probation Officer -- not Cabezudo --

retrieved her own copy of the untranslated messages and provided it

to the sentencing judge for review. Far from encouraging the court

to read the messages, Cabezudo's counsel said he was "concerned

that it's not that simple of a document," noting that it involved

sent and received messages and that he wanted to "make sure it's

-9-
clarified" and "make sure the Court got the right message." The

sentencing judge responded by telling Cabezudo to deliver his

allocution. On these facts, we cannot hold that Cabezudo

intentionally relinquished his Jones Act claim, and we therefore

proceed to analyze that claim on the merits.

"It is clear, to the point of perfect transparency, that

federal court proceedings must be conducted in English." Rivera-

Rosario, 300 F.3d at 5. As a consequence, federal judges must not

consider any untranslated documents placed before them. González-

de-Blasini v. Family Dep't, 377 F.3d 81, 89 (1st Cir. 2004). This

rule applies with equal force to all stages of federal court

proceedings, including sentencing hearings. See United States v.

Mescual-Cruz, 387 F.3d 1, 11 (1st Cir. 2004) (holding that failure

to translate defendant's Spanish-language allocution at sentencing

violated the Jones Act). We therefore hold that the district court

erred by accepting and considering an untranslated copy of the text

messages at Cabezudo's sentencing hearing.

Our finding of error does not end the matter, however, as

not all Jones Act violations require reversal. Violations of the

Jones Act "constitute reversible error whenever the appellant can

demonstrate that the untranslated evidence has the potential to

affect the disposition of an issue raised on appeal." Dalmau, 544

-10-
F.3d at 67 (quoting Rivera-Rosario, 300 F.3d at 10).1 "Absent that

potential, there is no prejudice from the violation of the Jones

Act that warrants relief." Rivera-Rosario, 300 F.3d at 10.

Similarly, if the untranslated evidence is merely cumulative, any

prejudice to the parties caused by this court's inability to review

1
The government argues that Rivera-Rosario's reversible error
rule for unpreserved claims ought not to apply because this circuit
confined Rivera-Rosario to its facts in United States v. Morales-
Madera, 352 F.3d 1, 10 (1st Cir. 2003), and we have consistently
reviewed unpreserved Jones Act claims for plain error ever since.
The government is incorrect on both points.

First, Morales-Madera distinguished Rivera-Rosario but did not
confine it to its facts. According to Morales-Madera, which
declined to apply Rivera-Rosario's reversible error rule and
instead reviewed for plain error, "the key distinction" between
Rivera-Rosario and Morales-Madera was that the former involved a
total failure to translate critical Spanish-language evidence at
trial, while in the latter case, the jury was provided with the
necessary translations at trial and the failure to enter those
translations into evidence was subject to cure via Federal Rule of
Appellate Procedure 10 ("Rule 10"). 352 F.3d at 10. In Cabezudo's
case, as in Rivera-Rosario, the Spanish-language evidence was never
translated below, making Rule 10 inapplicable.

Second, as this court's most recent Jones Act analysis makes
clear, Rivera-Rosario's reversible error rule is still binding in
this circuit. See Dalmau, 544 F.3d at 67 (citing Rivera-Rosario
and reversing without evidence of any objection in the district
court, so as to guard against parties at their whim turning the
United States District Court in Puerto Rico into a Spanish language
court). To the extent that any of our intervening opinions imply
that Morales-Madera altered the standard of review expressly set
forth in Rivera-Rosario and as reinforced most recently in Dalmau
for cases where essential Spanish-language evidence was never
translated below, we decline to follow them. See United States v.
Lizardo, 445 F.3d 73, 88 (1st Cir. 2006) (finding that this court
is bound by its precedent, "which only an en banc court can
change").

-11-
untranslated evidence is inconsequential and will not require

reversal. See id.

In this case, the sentencing judge expressly stated when

denying Cabezudo's motion for reconsideration that "[t]he record at

sentencing, and the text messages exchanged between the two

defendants and read by the court confirm that this was a coldly-

planned robbery." It is thus readily apparent that the text

messages did bear on an issue that the court found dispositive at

sentencing: namely, Cabezudo's planning of the robbery.

Nevertheless, the government argues that we must affirm because any

prejudice caused by the court's consideration of the untranslated

messages was inconsequential given the purely corroborative nature

of the messages. We agree.

Although Cabezudo argues that the untranslated messages

could have been outcome-determinative because they were "the only

source to which the district court referred for its information

regarding the planning of the offense," the record does not support

his claim.2 As an initial matter, Cabezudo ignores two important

2
Similarly unsupported by the record is Cabezudo's assertion that
reversal is appropriate because defense counsel and the district
court disagreed as to the proper "interpretation" of the text
messages. In truth, what Cabezudo calls a dispute over the meaning
of the untranslated text messages is more accurately described as
a complaint that the district court put too much weight on the fact
that Cabezudo suggested Millán commit a robbery and too little
weight on the fact that he was hesitant to participate and only
suggested it because he knew Millán routinely did such things. The
record shows, however, that the sentencing judge understood and
accepted both facts. The court expressly acknowledged that

-12-
sources of information: the PSR, and the statements of Cabezudo's

counsel at sentencing. The PSR -- to which Cabezudo did not object

-- describes the planning of the event in detail and in a manner

entirely consistent with the discussion at sentencing.

Specifically, the PSR states that Cabezudo knew Millán had robbed

before, and that his desire to be repaid prompted him to suggest

that Millán commit a robbery. He subsequently picked up Millán,

drove to the Burger King, and waited in the car to act as the

getaway driver in order to facilitate the crime.

Turning to the text message summary provided by

Cabezudo's counsel at sentencing, we find a detailed discussion of

precisely the same version of events:

[DEFENSE COUNSEL]: [H]e says, listen, why
don't you go do one of those [robberies] that
you do.

THE COURT: Who says that?

[DEFENSE COUNSEL]: [Cabezudo] says that.

THE COURT: Why don't you go and rob someone.

[DEFENSE COUNSEL]: He says, that's not my
problem. . . . Get the money. And [Millán]
says, all right. You have to come with me.

. . . .

Cabezudo was not the "intellectual author" of the crime and that he
may have never robbed before, unlike his co-defendant. That the
court ultimately elected to place greater weight on the undisputed
facts that Cabezudo suggested the robbery, picked up Millán, and
drove him to commit the robbery does not evidence any factual
disagreement as to the content of the untranslated messages.

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 THE COURT: You told me himself he planted the
idea in the other one. He was lending money
for interest. . . . And the guy's not paying
him. And then he tells him, why don't you do
one of these palitos, one of these robberies
you make.

. . . .

[DEFENSE COUNSEL]: [Cabezudo] says it in
passing, like, listen, that's not my problem.
Like, you're always robbing Burger Kings. Go
rob a Burger King.

The government subsequently agreed that defense counsel's summary

was accurate, and the court accepted it as such.

When the sentencing judge did later read the untranslated

messages from the bench,3 he observed that "[o]n one occasion he

says, you don't have any job to do today, palito, meaning a

robbery, because I'm really active and I need the money." Defense

counsel responded by saying "we've already discussed that with the

Court. We've already addressed that, Judge. That's exactly what

we told the Court." As defense counsel's own statements show, the

untranslated text messages were cumulative, serving only to further

corroborate both the PSR and the English-language text message

summary provided by defense counsel. Accordingly, we find that any

prejudice resulting from the district court's consideration of the

3
The sentencing judge initially expressed confusion as to who had
sent and received the messages he was reading, but the government
quickly corrected the court by stating that Millán sent the message
saying that the Burger King would be a "piece of cake." Defense
counsel agreed, adding that it reinforced their earlier point that
Millán encouraged Cabezudo to join in the robbery.

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untranslated messages was inconsequential and does not constitute

reversible error. See Rivera-Rosario, 300 F.3d at 10

(characterizing as inconsequential the prejudice resulting from

untranslated evidence that is cumulative).

2. Reasonableness

Having disposed of Cabezudo's Jones Act claim, we turn

now to consider the reasonableness of his sentence. Cabezudo

argues that his sentence is procedurally unreasonable for two

reasons: first, the district court failed to calculate the

applicable GSR, and second, the court did not adequately explain

its sentence.

Typically, we review criminal sentences for

reasonableness under an abuse-of-discretion standard. Gall v.

United States, 552 U.S. 38, 51 (2007). Where no objection was

raised at sentencing, however, we review for plain error. United

States v. Fernández-Hernández, 652 F.3d 56, 71 (1st Cir. 2011);

United States v. González-Castillo, 562 F.3d 80, 82 (1st Cir.

2009). To survive plain-error review and merit resentencing, a

defendant must make four showings: (1) an error occurred, (2) that

was clear or obvious, (3) that affected his substantial rights, and

(4) that seriously impaired the fairness, integrity, or public

reputation of judicial proceedings. United States v. Olano, 507

U.S. 725, 732-37 (1993). Because Cabezudo did not raise any claim

-15-
of procedural error below, we review his claims under the demanding

plain-error standard of review.

Our review of a criminal sentence's procedural

reasonableness begins by considering whether the court committed a

serious procedural error, such as "failing to calculate (or

improperly calculating) the Guidelines range, treating the

Guidelines as mandatory, failing to consider the 18 U.S.C.

§ 3553(a) factors, selecting a sentence based on clearly erroneous

facts, or failing to adequately explain the chosen sentence--

including an explanation for any deviation from the Guidelines

range." United States v. Innarelli, 524 F.3d 286, 292 (1st Cir.

2008). Accordingly, we start with Cabezudo's claim that the

district court plainly erred by failing to calculate the applicable

Guidelines sentence.

Although the Sentencing Guidelines are now advisory

rather than mandatory, district courts are still required to "begin

all sentencing proceedings by correctly calculating the applicable

Guidelines range." Gall, 552 U.S. at 49. Only after a court has

correctly calculated the applicable GSR and evaluated the factors

set out in 18 U.S.C. § 3553(a) can it properly exercise its

discretion to sentence a defendant within or outside the applicable

Guidelines range. Far from a meaningless exercise, the requirement

that the district court begin by correctly calculating the GSR

serves an important function; it provides a "framework or starting

-16-
point" to guide the exercise of the court's discretion. Freeman v.

United States, 131 S. Ct. 2685, 2692 (2011). Starting with such a

framework gives the sentencing judge "an idea of the sentences

imposed on equivalent offenders elsewhere," which in turn

"promote[s] uniformity and fairness" in sentencing. United States

v. Rodríguez, 630 F.3d 39, 41 (1st Cir. 2010). Thus, even though

sentencing judges are free to impose non-Guidelines sentences in

appropriate cases, "district courts must still give respectful

consideration to the now-advisory Guidelines (and their

accompanying policy statements)." Pepper v. United States, 131 S.

Ct. 1229, 1247 (2011) (internal quotation marks omitted).

At Cabezudo's sentencing hearing, the district court

announced that it was "going to impose the high end of the

guidelines on the robbery, which is the 30 months." This solitary

statement constitutes the court's only reference to the applicable

GSR at Cabezudo's sentencing. The district court never identified

the low end of the GSR for Count One, nor did it identify

Cabezudo's criminal history category or offense level. Worse yet,

the court made no reference whatsoever to the Guidelines Sentence

for Count Two before imposing a sentence of 84 months on that Count

-- a full two years higher than the Guidelines sentence of 60

months. See U.S. Sentencing Guidelines Manual § 2K2.4(b) ("[I]f

the defendant . . . was convicted of violating section 924(c). . .

-17-
of title 18, United States Code, the guideline sentence is the

minimum term of imprisonment required by statute.").

The government, in an effort to persuade us that the

sentencing judge did calculate the applicable GSR for Count Two,

points us to the court's comment at the end of the hearing that it

wanted to clarify that it did not use any departures because it saw

no reason to, but that "when you look at it, the truth of the

matter is this is a variance case." The government reasons that "a

variance case" must have referred to Count Two because Count One

was a within-Guidelines sentence. From this, the government posits

that the court must have known that it was sentencing outside of

the Guidelines on Count Two, which in turn suggests that the court

properly calculated the applicable Guidelines before sentencing

Cabezudo. We are not persuaded.4

Even if we were certain that the district court knew that

it was imposing a variant sentence on Count Two, the sentencing

transcript gives no indication that the court chose to do so after

determining the correct Guidelines sentence. Taking the

4
Similarly unconvincing is the government's argument that we
should infer from the court's discussion of the applicable
Guidelines at Millán's sentencing hearing that it must have known
the correct Guidelines sentence for Cabezudo. Critically, this
argument ignores the fact that Millán's Guidelines sentence for
Count Two was 84 months while Cabezudo's was 60 months. If
anything, the fact that the district court sentenced Cabezudo in a
manner consistent with Millán's Guidelines sentence for Count Two
-- after calculating only Millán's Guidelines sentence -- is
additional cause for concern.

-18-
government's logic at face value, we can only assume that the

district court thought the Guidelines advised something other than

the sentence imposed. This does not suffice. Even where a

district court concludes that a variant sentence is appropriate, it

is still essential that the court begin by calculating the correct

GSR. United States v. Ortiz, 741 F.3d 288, 294 (1st Cir. 2014)

(remanding despite district court's stated intention to "do a small

variance" where district court had improperly calculated the

applicable GSR).

Given the district court's total failure at sentencing to

calculate the applicable Guidelines sentence for Count Two, we are

forced to conclude that the district court committed procedural

error. We turn now to consider the consequences of this error. As

we have previously made clear, a district court's failure to

calculate conclusively a defendant's GSR is "a serious procedural

error." United States v. Tavares, 705 F.3d 4, 26 (1st Cir. 2013)

(citing Gall, 552 U.S. at 51). Accordingly, a finding that the

district court so erred "will usually require resentencing."

Rodríguez, 630 F.3d at 41. Nevertheless, the fact that the

district court committed such a serious procedural error does not

automatically entitle Cabezudo to resentencing. Tavares, 705 F.3d

at 25.

In Tavares, this court found that resentencing was not

required where the district court erred by failing to conclusively

-19-
determine the applicable GSR. 705 F.3d at 25-28. We reasoned that

the district court's failure to choose the correct GSR was harmless

error because the court correctly calculated the two potential GSRs

as recommended by the parties before clearly stating that it was

going to sentence in such a way that the Guidelines calculation did

not matter; the district court then imposed a sentence above both

of the suggested Guidelines ranges, citing the nature of the

offense and the goals of sentencing. Id. at 27-28. Significantly,

we found that the sentencing judge in Tavares "did not fail

completely to calculate Mr. Tavares's guidelines sentencing range

or impose his sentence without any consideration of the Guidelines.

. . . The district court clearly understood the options within the

possible guidelines calculations and clearly rejected all of them

as yielding too lenient a sentence." Id. at 27. We also noted

that "[c]ases in which reversible error has been found involve[d]

far less awareness of the applicable guidelines range than we find

here," and that Tavares's case "stands in stark contrast to typical

cases where a district court's failure to calculate a defendant's

guidelines sentencing range has warranted a remand for

resentencing." Id. at 28 n.37 (citing United States v. Peebles,

624 F.3d 344, 347 (6th Cir. 2010)), as a "typical" case where

resentencing was required because neither the attorneys nor the

district court addressed the applicable GSR at all during the

sentencing hearing).

-20-
 In Cabezudo's case, however, the district court did "fail

completely to calculate [his] guidelines sentencing range" and

seemingly imposed its sentence for Count Two "without any

consideration of the Guidelines." See id. at 27; see also Ortiz,

741 F.3d at 294. Accordingly, this is precisely the kind of

"typical" case that we noted in Tavares would require remand for

resentencing. Thus, we find that the district court's total

failure to calculate the applicable GSR for Count Two was

reasonably likely to have influenced Cabezudo's sentence and that

it is appropriate to remand for resentencing.

Although the district court did later calculate the

applicable GSR in its written statement of reasons, this belated

consideration raises more concerns than it resolves, as the court

wrote therein that it had sentenced Cabezudo to a within-Guidelines

sentence. In fact, the 84-month sentence imposed by the court for

Count Two exceeded the applicable Guidelines sentence by two years.

Following on the heels of the district court's failure to calculate

the applicable GSR, the court's evident confusion about the nature

of the sentence imposed is troubling and further reinforces our

belief that resentencing is necessary.

At the risk of piling on, we also note that the district

court's handling of the statement of reasons form reveals another

error. By statute, whenever a district court imposes a sentence

outside the applicable GSR, the court must also state the "specific

-21-
reason for the imposition of a sentence different from that

described, which reasons must also be stated with specificity in a

statement of reasons form." 18 U.S.C. § 3553(c); see also Peugh v.

United States, 133 S. Ct. 2072, 2084 (2013) ("[A] district court

varying from the Federal Guidelines should provide an explanation

adequate to the extent of the departure"); Gall, 552 U.S. at 51

(classifying as "significant procedural error" a district court's

failure "to adequately explain the chosen sentence--including an

explanation for any deviation from the Guidelines range"). In this

case, however, the court failed to offer any written explanation

for its sentence whatsoever. The court left blank the sections of

the statement of reasons form calling for the court to explain its

non-Guidelines sentence, and it instead checked a box indicating

that it had imposed a within-Guidelines sentence. Thus, the

court's written statement of reasons for its sentence -- or, more

precisely, the lack thereof -- is inadequate as a matter of law.

As we have already determined that resentencing is

appropriate due to the district court's failure to calculate the

applicable GSR, we need not press on to consider whether the

court's failure to provide a written statement of reasons in light

of its limited oral explanation5 for an above-Guidelines sentence

5
At the sentencing hearing, the judge's explanation of Cabezudo's
sentence took the following form:

You got me to lower him from 180 in my mind to 114. . . .
He was the one who picked him up, took him to the place,

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constitutes plain error. Thus, although we express some

reservations as to the adequacy of the explanation in this case, we

go no further.6

We now turn our attention to Millán.

B. Millán

For the first time on appeal, Millán argues that the

district court erred at sentencing by considering evidence and

information of which he had no notice. Specifically, Millán

objects to the court's reliance on: (1) the government's proffer at

sentencing regarding the impact of the robbery on the Burger King

cashier, and (2) the text messages and other evidence of

comparative responsibility discussed at co-defendant Cabezudo's

sentencing. Arguing that he had no notice of either prior to his

own sentencing hearing -- and thus no meaningful opportunity to

respond -- Millán contends that reversal is required. As Millán

who suggested the robbery, make one of your palitos so
you can pay the money you owe me back. . . . [Y]ou will
notice that I did not make any use of departure, because
I didn't find that there was any real reason, any
particular reason to depart. Perhaps 5K 2.0. But when
you -- when you look at it, the truth of the matter is
this is a variance case.
6
We note that our finding that Cabezudo's sentence is
procedurally unreasonable and requires resentencing means that his
challenge to the substantive reasonableness of his sentence need
not be considered. See United States v. Rodríguez, 527 F.3d 221,
231 n.5 (1st Cir. 2008) (reasoning that because court vacated and
remanded for resentencing, it was unnecessary to reach defendant's
alternative argument, which challenged the sentence's substantive
reasonableness).

-23-
failed to object to the court's consideration of this information

below, his claim is subject to the demanding plain-error standard

of review. See United States v. Mangone, 105 F.3d 29, 35 (1st Cir.

1997).

It is abundantly clear that a district court has broad

discretion at sentencing to consider information pertaining to the

defendant and the defendant's offense conduct. United States v.

Zavala-Martí, 715 F.3d 44, 54-55 (1st Cir. 2013). This includes

the ability to consider information from court proceedings at which

the defendant was not present, such as a co-defendant's sentencing

hearing. See United States v. Rivera-Rodríguez, 489 F.3d 48, 53

(1st Cir. 2007). The district court's discretion is not without

limits, however, and one such limit requires the court to base its

sentence only upon information with "'sufficient indicia of

reliability to support its probable accuracy.'" United States v.

Gallardo-Ortiz, 666 F.3d 808, 811 (1st Cir. 2012) (quoting United

States v. Cintrón–Echautegui, 604 F.3d 1, 6 (1st Cir. 2010)).

Relatedly, the district court must afford the defendant an

opportunity to respond to the factual information offered against

him at sentencing. See Cintrón–Echautegui, 604 F.3d at 6; see also

U.S. Sentencing Guidelines Manual § 6A1.3(a) ("When any factor

important to the sentencing determination is reasonably in dispute,

the parties shall be given an adequate opportunity to present

information to the court regarding that factor."); Fed. R. Crim. P.

-24-
32(i)(1) ("At sentencing, the court: . . . must allow the parties'

attorneys to comment on . . . matters relating to an appropriate

sentence.").

Of course, a defendant's right to respond to the

information offered against him at sentencing means very little

without a right to notice of that information. See United States

v. Berzon, 941 F.2d 8, 18 (1st Cir. 1991) ("'Th[e] right to be

heard has little reality or worth unless one is informed.'"

(alteration in original) (quoting Burns v. United States, 501 U.S.

129, 136 (1991))); see also Irizarry v. United States, 553 U.S.

708, 715 (2008) ("[J]udges in all cases should make sure that the

information provided to the parties in advance of the hearing, and

in the hearing itself, has given them an adequate opportunity to

confront and debate the relevant issues."). This court has

therefore held that "'a defendant may not be placed in a position

where, because of his ignorance of the information being used

against him, he is effectively denied an opportunity to comment on

or otherwise challenge material information considered by the

district court.'" Rivera-Rodríguez, 489 F.3d at 54 (quoting

Berzon, 941 F.2d at 21). Accordingly, we have found remand

necessary where a sentencing court relied on new and significant

information gleaned from a co-defendant's sentencing hearing when

that information was not in the record and the defendant was not

present during his co-defendant's sentencing. Berzon, 941 F.2d at

-25-
17 (rejecting government's claim of constructive notice where

defense counsel knew of co-defendant's sentencing held three months

prior but did not attend or request a transcript because co-

defendant's sentencing hearing "was not part of a joint proceeding

in which [the defendant] or his counsel took part"); see also

Zavala-Martí, 715 F.3d at 55 (remanding for resentencing where

"[a]ppellant was alerted to the ex parte meeting for the first time

during the court's sentencing pronouncement, and he thus had

insufficient notice and no opportunity to develop a response to any

adverse information communicated there"). On the other hand, we

have affirmed where "there is no indication from the record that

the sentencing judge materially relied on any undisclosed

testimony." Rivera-Rodríguez, 489 F.3d at 55. Thus, we scrutinize

the record closely to determine whether the court considered new

information at sentencing and if so, whether it materially relied

on that information in crafting Millán's sentence.

In this case, as in Berzon, the record does reflect the

court's consideration of new, significant information at

sentencing. After Millán's allocution, the sentencing judge asked

the government if it had anything to say. The government replied

by stating it wanted to add that "the victim, the cashier . . . had

in fact previously worked in another restaurant where a robber

killed a cashier, so she was very [a]ffected by this robbery."

Later in the hearing, when defense counsel informed the court that

-26-
she had "three persons who are willing to testify," the court

responded by saying it did not need to hear from them because it

was "going to go by what happened. . . . A young girl was freaked

out, completely freaked out, destroyed emotionally by the fact that

they pointed a gun at her to take 114 dollars." The sentencing

judge then theorized that Millán likely did not ask the cashier

politely for the money when he showed her the gun, and he announced

that he was imposing a variant sentence of 60 months on the robbery

count and 120 months on the gun count.

The government has not directed us to any information in

the record describing either the cashier's personal history with

similar crimes or the way that this particular robbery affected

her. Our own review of the record reveals that no such information

is contained in Millán's indictment, plea agreement, or PSR. It

therefore appears that the district court's conclusion that the

cashier was "destroyed emotionally" by the robbery was based

primarily upon victim impact information proffered by the

government for the first time at Millán's sentencing hearing. The

consideration of such new information is particularly concerning

here given the court's subsequent announcement that it would

sentence Millán to 60 months on the robbery count -- a period of

incarceration more than twice as long the government's recommended

sentence. Cf. United States v. Curran, 926 F.2d 59, 60-64 (1st

Cir. 1991) (reversing for resentencing where the sentencing judge

-27-
referenced victim impact letters not mentioned in the PSR or

disclosed to defendant prior to sentencing and the court imposed a

heavier sentence than was recommended by the government). But this

did not end the matter.

After announcing Millán's sentence and informing him of

his right to appeal, the district court excused Millán from the

courtroom and proceeded to conduct Cabezudo's sentencing hearing.

During that hearing, the court commented that "the sentence that I

imposed on [Millán] is perhaps too high, and we're going to change

them both." The court then took the unusual step of reconvening

Millán's sentencing hearing, announcing that "[o]n the basis of

what we were able to get to know, on the basis of the sentence of

the co-defendant, and on the basis of what we have discussed, I

think perhaps I should lower the sentence imposed on your client."

Thus, both the chronology and the court's own words strongly

suggest that the district court elected to adjust Millán's sentence

on the basis of facts learned at Cabezudo's sentencing hearing, for

which Millán was not present.7

7
A little more than halfway through Cabezudo's sentencing
hearing, the sentencing transcript shows that the court asked the
Marshals to get Millán from the cell block and return him to the
courtroom so that he might hear Cabezudo's allocution. Missing
from the transcript, however, is any indication of when Millán
actually returned. According to Millán's counsel, who also
represented him below, Millán did not return to the courtroom until
"almost at the end of the hearing," long after the court had
discussed the text-message exchange between the co-defendants and
other relevant information. The government did not dispute this
assertion.

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 Accordingly, we must determine whether the information

presented at Cabezudo's sentencing was already made known to Millán

either in his PSR or elsewhere in the record, or whether the

information was new. See Berzon, 941 F.2d at 20 ("The difficulty

here . . . is that the testimony and argument at [the co-

defendant's] sentencing included information not in the PS[R] nor

otherwise in the record in [the defendant's] case."). What the

court "got to know" and "discussed" during Cabezudo's sentencing

hearing spans 39 pages. Among other things, the court heard that

Cabezudo suggested the robbery as a means of repayment because he

believed Millán routinely committed robberies, and that Millán

agreed to participate only on the condition that Cabezudo help him

with the robbery. The court read and discussed text messages

suggesting that Cabezudo was initially reluctant to participate,

but that he agreed to come with Millán's assurance that the Burger

King would be "a piece of cake." And when defense counsel told the

court that Cabezudo "was not the intellectual author of the crime,"

the court responded by saying "Of course not. [Millán] robs more

than [Cabezudo]." Defense counsel clarified that Cabezudo had no

criminal history, prompting the sentencing judge to reason that

"maybe [Cabezudo] never robbed . . . [b]ut he knew [Millán]

robbed."

Of this information received at Cabezudo's sentencing

hearing, the only fact reflected in Millán's PSR is that he agreed

-29-
to participate in the robbery as a means of repaying Cabezudo.

There is no discussion of either his inducing Cabezudo to assist

him or of the co-defendants' relative roles in planning the offense

-- a subject that was discussed at length during Cabezudo's

sentencing. Additionally, nothing in Millán's PSR suggests that he

had experience committing similar robberies. In fact, according to

Millán's PSR, he had no known criminal history. Millán's counsel

had previously emphasized precisely this point in an ex parte

sentencing memorandum, asserting that Millán "is a first time

offender without any prior criminal behavior whatsoever." The

government never disputed this fact, and the only information the

sentencing court heard to the contrary came from Cabezudo's

sentencing hearing.

For a second time, then, we see the sentencing court

seemingly adjusting Millán's sentence on the basis on facts outside

the record, and we turn now to the question of whether this error

merits reversal. Undoubtedly, the court's error was clear at the

time of sentencing. See Rivera-Rodríguez, 489 F.3d at 53; Curran,

926 F.2d at 63 (holding that henceforth, where a sentencing court

relies on extra-record factual information at sentencing, it

"should disclose to the defendant as much as was relied upon, in a

timely manner, so as to afford the defendant a fair opportunity to

examine and challenge it."). We therefore turn to the question of

whether Millán's substantial rights were affected by the court's

-30-
consideration of new, material information of which he had no

notice prior to his sentencing. Essentially, Millán must show that

the error "affected the outcome of the district court proceedings."

Olano, 507 U.S. at 734.

The government apparently concedes that the information

discussed at Cabezudo's hearing affected Millán's sentence, noting

that "those arguments and information [discussed at Cabezudo's

hearing] . . . persuaded the court to change its mind as to the

circumstances of the offense." Nevertheless, the government argues

that Millán's notice claim cannot survive plain error review

because "the information presented at Cabezudo's sentencing hearing

only benefitted Millán, who received a significant sentencing

reduction as a result." We disagree.

The fact that the district court relied on extra-record

information when reducing Millán's sentence from one above-

Guidelines sentence to another does not negate the likelihood that

had Millán been afforded an opportunity to respond to that

information, his sentence may have been lower still. Indeed, the

government's recommended sentence was 108 months, not the 120

imposed by the court. Under these circumstances, we cannot ignore

the fact that both the victim impact evidence and the information

discussed at Cabezudo's sentencing constituted new, material

information. Particularly given the court's demonstrated interest

in assessing the effect of crime on the community and the relative

-31-
roles of the co-defendants in this case,8 Millán should have had

the opportunity to respond to the extra-record information

regarding his comparative culpability, his criminal history, and

the impact of his offense on the victim before the court relied on

it at his sentencing.

As Millán points out, had he been present at Cabezudo's

sentencing hearing and given a second opportunity to address the

court, he could have challenged the "unreliable" information

presented at Cabezudo's hearing regarding the relative

responsibilities of the two co-defendants, explained the meaning of

the text messages read by the court, and disputed the court's

unfavorable conclusion regarding his criminal history. Considering

that even the 120-month sentence ultimately imposed by the district

court exceeded the government's recommended sentence by a full

year, we cannot ignore the likelihood that Millan's variant

sentence was affected by the court's unanticipated reliance on

extra-record, material information at his sentencing. See Curran,

926 F.2d at 63.

Based on the record before us, we find that it is

reasonably likely that the court's erroneous consideration of new,

significant information -- to which Millán had no meaningful

8
Indeed, at Cabezudo's sentencing hearing, the court described
the significance of Cabezudo's allocution by observing that "he has
to be brave enough to put his own case in his own perspective, so
we can actually figure out what we're going to do with him. Part
of it is recognizing what you did and what the other guy did."

-32-
opportunity to respond -- affected the court's determination of his

sentence. Recognizing further that "[p]rior notice is one of the

most zealously guarded rights of criminal defendants. . . . [such]

that disregard for it cannot help but have a denigrating effect on

the fairness, integrity, and public reputation of judicial

proceedings," Mangone, 105 F.3d at 36, we find that Millán's

sentence should be vacated, and we remand for resentencing.9

As a final matter, we emphasize that nothing in this

opinion should be read to suggest that the district court is not

free to consider at resentencing either victim impact information

or information presented at Cabezudo's sentencing hearing. Rather,

we merely hold that the court must provide notice, and the

opportunity to respond, before relying on such extra-record

information.

III. Conclusion

We are not unsympathetic to the significant time

pressures felt by the district courts as they manage heavy dockets

with limited resources. Nevertheless, we cannot overlook the

serious procedural errors at issue in this case. The district

court plainly erred by sentencing Cabezudo without calculating the

applicable GSR and by sentencing Millán without providing him with

9
Because we find that resentencing is required, Millán's
additional claims of procedural error at sentencing are moot, and
his challenge to the substantive reasonableness of his sentence
need not be addressed. See Rodríguez, 527 F.3d at 231 n.5.

-33-
notice and an opportunity to rebut the facts that formed the basis

of his sentence. We therefore hold that the defendants' sentences

are vacated and remanded for resentencing consistent with this

opinion.

Of course, the district court remains free on remand to

exercise its discretion to sentence the defendants within or

outside of the applicable Guidelines ranges, and we take no view at

this time as to the length of the sentences to be imposed. So long

as the sentencing court affords proper notice and opportunity to be

heard, begins by calculating the applicable Guidelines sentences,

and adequately explains its sentences after consideration of the

relevant sentencing factors, it is free to exercise its

considerable discretion in crafting appropriate sentences for the

Appellants.

REMANDED FOR RESENTENCING.

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