United States v. Cortes-Medina

United States Court of Appeals
For the First Circuit

No. 14-1101

UNITED STATES OF AMERICA,

Appellee,

v.

HÉCTOR CORTÉS-MEDINA,

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF PUERTO RICO

[Hon. José Antonio Fusté, U.S. District Judge]

Before

Lynch, Selya and Lipez,
Circuit Judges.

Heather Clark, with whom Law Office of Heather Clark was on
brief, for appellant.
Francisco A. Besosa-Martínez, 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.

January 6, 2016
 SELYA, Circuit Judge. In this sentencing appeal,

defendant-appellant Héctor Cortés-Medina insists that his 168-month

sentence is both procedurally flawed and substantively

unreasonable. After careful consideration, we affirm the sentence.

This appeal has its roots in an indictment returned by a

federal grand jury sitting in the District of Puerto Rico. The

indictment alleged that the defendant served as an "enforcer" for

a drug-trafficking ring and charged him as a participant in a

conspiracy to possess with intent to distribute controlled

substances within 1,000 feet of a protected location. See 21

U.S.C. §§ 841(a)(1), 846, 860.

In due course, the defendant entered into a non-binding

plea agreement (the Agreement) with the government. The Agreement

provided that, in exchange for his guilty plea to the conspiracy

charge and to a related forfeiture allegation, the government would

recommend a 121-month prison term; provided, however, that the

defendant's criminal history category (CHC) was IV or lower. The

district court accepted the plea, and the probation office prepared

a presentence investigation report (PSI Report). Neither side

objected to anything contained in the PSI Report, which (among

other things) recommended a series of guideline calculations

culminating in a total offense level of 30, a CHC of IV, and a

guideline sentencing range (GSR) of 135 to 168 months.

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 At the disposition hearing, the government recommended

the agreed 121-month sentence, even though that sentence was below

the nadir of the GSR. The district court heard statements from

defense counsel and the defendant himself, and the court

acknowledged the parties' joint sentencing recommendation. The

court then engaged in a dissection of the defendant's criminal

history.

To begin, the court examined the four convictions on

which the defendant's CHC was premised. It then catalogued several

arrests that had terminated either in acquittals or in dismissals.

These included two charges for first-degree murder, two charges

relating to destruction of evidence, and an assortment of charges

for drug and firearm violations.1 Noting that none of these

charges had resulted in any punishment, the district court

expressed frustration. The court said: "This is what I just don't

understand, how these things are happening." It then added,

cryptically, that "lightning doesn't strike twice in the same

place."

The district court proceeded, without objection, to

ratify and adopt the guideline calculations limned in the PSI

Report. It stressed that the defendant was an enforcer in the

drug-trafficking organization, adding "[w]e know what that means."

1
The record reflects that the probation office had sought
further information about each of these charges, but none was
forthcoming.

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In the end, the court sentenced the defendant to a term of

immurement at the apex of, but within, the GSR: 168 months.

This timely appeal ensued. Although the Agreement

contains a waiver-of-appeal provision, that provision, by its

terms, is operative only if the court sentences the defendant in

accordance with the Agreement's "terms, conditions and

recommendations." Because the sentence imposed by the district

court exceeded the sentence recommended in the Agreement, the

waiver-of-appeal provision is a dead letter. See, e.g., United

States v. Fernández-Cabrera, 625 F.3d 48, 51 (1st Cir. 2010).

Overall, "[a]ppellate review of federal criminal

sentences is characterized by a frank recognition of the

substantial discretion vested in a sentencing court." United

States v. Flores-Machicote, 706 F.3d 16, 20 (1st Cir. 2013). The

"process is bifurcated: we first determine whether the sentence

imposed is procedurally reasonable and then determine whether it is

substantively reasonable." United States v. Clogston, 662 F.3d

588, 590 (1st Cir. 2011). Generally, both aspects of this review

are for abuse of discretion. See Gall v. United States, 552 U.S.

38, 46 (2007); United States v. Martin, 520 F.3d 87, 92 (1st Cir.

2008). When assessing the procedural reasonableness of a sentence,

however, appellate review is more nuanced: we afford de novo

consideration to the sentencing court's interpretation and

-4-
application of the sentencing guidelines and assay the court's

factfinding for clear error. See Flores-Machicote, 706 F.3d at 20.

These standards of review are altered when an objection

is not preserved in the court below. In that event, review is for

plain error. See United States v. Duarte, 246 F.3d 56, 60 (1st

Cir. 2001). Plain error review is not appellant-friendly. It

"entails four showings: (1) that an error occurred (2) which was

clear or obvious and which not only (3) affected the defendant's

substantial rights, but also (4) seriously impaired the fairness,

integrity, or public reputation of judicial proceedings." Id.

Against this backdrop, we turn to the defendant's claims

of error: three procedural objections and a plaint of substantive

unreasonableness. We address these matters sequentially.

The defendant first argues that the district court erred

by taking into account several dismissed or acquitted charges

because the facts underlying those charges were not proven by a

preponderance of the evidence. He says that he preserved this

argument by means of a statement contained in the "Background of

the Defendant" section of his sentencing memorandum:

As evidence showed in the court files, that
were examined, many of the indictments got
dismissed because of lack of proof related to
the supposed direct participation of the
defendant and in others there was no proof at
all.

During the investigations as is shown as well
in the Pre-Sentence Report the defendant has
been accused of many different illegal acts

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 as, for which many of these accusation [sic]
were dismissed because of insufficient
evidence.

However, no mention of the dismissed or acquitted charges was made

in the "Application of Law and Arguments" section of the

defendant's sentencing memorandum.

At the outset of the disposition hearing, the district

court confirmed with defense counsel that the defendant had no

objections to the PSI Report. During that hearing, defense counsel

did not mention the dismissed or acquitted charges at all.

Generally, a party has 14 days after receipt of a

presentence report within which to object in writing to, inter

alia, "material information" contained in that report. Fed. R.

Crim. P. 32(f)(1). A failure to object constitutes a waiver of any

objection to such information. See United States v. Serrano-

Mercado, 784 F.3d 838, 846, 847 (1st Cir. 2015); United States v.

Turbides-Leonardo, 468 F.3d 34, 37 (1st Cir. 2006). Such a waiver

occurred here.

Nor did the passing reference to the charges in the

background section of the sentencing memorandum cure this omission.

That reference, particularly when not followed up by some

corresponding reference in the argument section of the memorandum,

did nothing to call to the sentencing court's attention that the

defendant objected to any consideration of those parts of his

arrest record that had not ripened into convictions. While our

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dissenting brother cavalierly proclaims that the argument made on

appeal was "implicit in [the defendant's] contentions" at

sentencing, post at 18, a finding to that effect would render

normal principles of waiver meaningless. We conclude, therefore,

that the defendant's argument is unpreserved and engenders plain

error review.

We turn to that review. The defendant bases his claim of

error on the Supreme Court's opinion in United States v. Watts, 519

U.S. 148, 157 (1997) (per curiam). In that case, the Court

concluded that, when imposing an offense-level enhancement, a

sentencing court may consider acquitted conduct only if that

conduct is proven by a preponderance of the evidence.2 See id. at

153, 157. Here, however, Watts is inapposite: the sentencing court

did not use dismissed or acquitted conduct in its sentencing

calculus. Rather, the court used the defendant's arrest record,

which was laid out in the PSI Report and not contested by the

defendant. The arrest record was, therefore, a proven fact, see

United States v. Jiménez, 512 F.3d 1, 7 (1st Cir. 2007), and thus

properly before the district court.

2
The two Seventh Circuit cases relied on by the defendant —
United States v. Short, 4 F.3d 475 (7th Cir. 1993) and United
States v. Ruffin, 997 F.2d 343 (7th Cir. 1993) — add nothing to the
defendant's argument. Though predating Watts, these cases are in
the same general posture and adumbrate the holding in Watts. See
Short, 4 F.3d at 479; Ruffin, 997 F.2d at 345.

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 Nor did the district court plainly err in taking into

account the prolific arrest record of the defendant — a drug-gang

enforcer — solely for the purpose of determining at what point

within the GSR the defendant's sentence should be set. As we

previously have explained, "a criminal defendant's 'history and

characteristics' are among the considerations that a court ought to

take into account at sentencing." Flores-Machicote, 706 F.3d at 21

(quoting 18 U.S.C. § 3553(a)(1)). This includes the defendant's

record of past arrests or dismissed charges, as such a record "may

indicate a pattern of unlawful behavior even in the absence of any

convictions." Id. (internal quotation marks omitted). That the

defendant had several such arrests is an important datum, for we

have distinguished a series of arrests "which might legitimately

suggest a pattern of unlawful behavior even in the absence of any

convictions" from, say, a single arrest. United States v. Lozada-

Aponte, 689 F.3d 791, 792 (1st Cir. 2012) (quoting United States v.

Zapete-Garcia, 447 F.3d 57, 61 (1st Cir. 2006) (internal quotation

marks omitted)); accord United States v. Ocasio-Cancel, 727 F.3d

85, 91-92 (1st Cir. 2013). Based on these authorities, it defies

reason to assert (as does our dissenting brother) that there was a

clear or obvious error in the district court's consideration of the

defendant's full arrest record at the final step of the sentencing

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proceeding. Consequently, we find no plain error.3 Cf. United

States v. Vega-Santiago, 519 F.3d 1, 5 (1st Cir. 2008) (en banc)

("Garden variety considerations of culpability, criminal history,

likelihood of re-offense, seriousness of the crime, nature of the

conduct and so forth should not generally come as a surprise to

trial lawyers who have prepared for sentencing.").

The defendant's next claim of error posits that the

district court abused its discretion by not adequately considering

the factors set forth in 18 U.S.C. § 3553(a). Our review of this

claim is for abuse of discretion. See Gall, 552 U.S. at 51.

The defendant's claim centers on his assertion that the

district court failed to consider not only that he had already

served time for a matter incident to the offense of conviction but

also that he had been rehabilitated. But these potentially

mitigating factors were before the district court at sentencing;

indeed, they were vigorously pressed by defense counsel. There is

3
In an effort to blunt the force of this reasoning, the
defendant, post-argument, submitted a list of additional
authorities. See 1st Cir. R. 28(j). We have examined these
authorities with care and find them unpersuasive. Some are
factually distinguishable, see, e.g., United States v. Matheny, 450
F.3d 633, 642 (6th Cir. 2006) (involving a single arrest), some
find no plain error, see, e.g., United States v. Guajardo-Martínez,
635 F.3d 1056, 1062 (7th Cir. 2011), and some contain language
similar to that found in our own case, see, e.g., United States v.
Berry, 553 F.3d 273, 284 (3d Cir. 2009) (recognizing that there may
be situations in which the number of prior arrests "becomes so
overwhelming as suggestive of actual guilt that they become
exceedingly difficult to ignore"). To the extent (if at all) that
any of these cases conflict with our own case law, we are
constrained to follow First Circuit precedent.

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not the slightest reason to think that the district court

overlooked them.4

No more is needed to defeat this claim of error. Even

though a sentencing court is charged with a duty to "consider all

relevant section 3553(a) factors, it need not do so mechanically."

Clogston, 662 F.3d at 592 (internal quotation marks omitted).

While the court below did not squarely address the two factors

cited by the defendant, we have warned against "read[ing] too much

into a district court's failure to respond explicitly to particular

sentencing arguments." Id. This court has not required sentencing

courts to walk, line by line, through the section 3553(a) factors.

See United States v. Dixon, 449 F.3d 194, 205 (1st Cir. 2006)

(explaining that a sentencing court need not "address [the section

3553(a)] factors, one by one, in some sort of rote incantation when

explicating its sentencing decision"). We have no occasion to

impose such a requirement today. Thus, we discern no abuse of

discretion in the sentencing court's failure to acknowledge

explicitly that it had mulled the defendant's arguments.

The defendant's last procedural claim implicates 18

U.S.C. § 3553(c). This statute provides in pertinent part that the

4
This is especially so because the sentence imposed was
within the GSR. As the Supreme Court has explained, the guideline
range itself bears a direct relation to the compendium of
considerations listed in section 3553(a) and, thus, a within-the-
range sentence "likely reflects the section 3553(a) factors." Rita
v. United States, 551 U.S. 338, 355 (2007).

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court "at the time of sentencing, shall state in open court the

reasons for its imposition of the particular sentence" and, if the

GSR spans more than 24 months, shall also state "the reason for

imposing a sentence at a particular point within the range." 18

U.S.C. § 3553(c). The defendant says that the sentencing court did

not adequately comply with these strictures and that, therefore,

his sentence must be vacated.

The defendant's premise is sound: the sentencing court's

explanation of its reason for choosing a top-of-the-range sentence

of 168 months is recondite at best. But the conclusion that the

defendant seeks to draw from this premise is unfounded. The

defendant did not raise this objection below, and we have held that

a district court's failure to provide an adequate explanation of a

sentence, without more, is not sufficient to constitute plain

error. See United States v. Medina-Villegas, 700 F.3d 580, 583

(1st Cir. 2012).

Here, there is no "more": the district court's rationale

is readily apparent from the sentencing transcript. The court made

no bones about its belief that the defendant's criminal history

score underrepresented his culpability because of his pattern of

arrests and the persistent lack of follow-up with respect to the

charges that were initially preferred against him. Such items

speak directly to the character of the individual, the risk of

recidivism, and the need to protect the public from future crimes.

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See United States v. Rivera Calderón, 578 F.3d 78, 104-05 (1st Cir.

2009).

Transparency at sentencing is important, and we do not

readily condone a district court's failure to comply with the

obligations imposed by section 3553(c). But neither do we condone

a defendant's failure to object in a seasonable manner and call

such an oversight to the sentencing court's attention in time to

correct it at the disposition hearing. The failure to voice a

contemporaneous objection constrains our review to plain error, and

we find no plain error here. There is simply no reason to believe

that if the district court had effected a more literal compliance

with section 3553(c), it would have handed down a milder sentence.

See Medina-Villegas, 700 F.3d at 584; United States v. Mangual-

Garcia, 505 F.3d 1, 16 (1st Cir. 2007); see also Turbides-Leonardo,

468 F.3d at 39 (explaining that an appellant hoping to prevail on

plain error review must show "a reasonable probability that, but

for the error claimed, the result of the proceeding would have been

different" (internal quotation marks and alterations omitted)).

The defendant's final claim of error embodies a

challenge, raised for the first time on appeal, to the substantive

reasonableness of his sentence. We recently have explained that,

in such circumstances, the appropriate standard of appellate review

is uncertain. See United States v. Vargas-García, 794 F.3d 162,

167 (1st Cir. 2015); United States v. Ruiz-Huertas, 792 F.3d 223,

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228 (1st Cir. 2015). We need not resolve that uncertainty today:

even assuming, favorably to the defendant, that his claim of

substantive unreasonableness is reviewable for abuse of discretion,

it nonetheless fails.

We start with first principles. When evaluating the

substantive reasonableness of a sentence under the abuse of

discretion rubric, an inquiring court must take into account the

totality of the circumstances. See Martin, 520 F.3d at 92. A

principal goal of sentencing is to fashion a sentence that is

"sufficient, but not greater than necessary." United States v.

Carrasco-de-Jesús, 589 F.3d 22, 29 (1st Cir. 2009) (quoting 18

U.S.C. § 3553(a)). In determining whether a sentencing court has

achieved this goal, we assess the plausibility of the sentencing

court's rationale and the appropriateness of the sentence itself.

See id. at 30.

Challenging a sentence as substantively unreasonable is

a heavy lift. That lift grows even heavier where, as here, the

sentence falls within a properly calculated GSR. See Clogston, 662

F.3d at 592-93; see also United States v. Jiménez-Beltre, 440 F.3d

514, 518 (1st Cir. 2006) (en banc) (explaining importance of

advisory guidelines in the sentencing calculus). Indeed, a

reviewing court may apply "a presumption of reasonableness" to a

within-the-range sentence. Rita v. United States, 551 U.S. 338,

347, 351 (2007). At a bare minimum, a defendant "must adduce

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fairly powerful mitigating reasons and persuade us that the

district court was unreasonable in balancing pros and cons."

Clogston, 662 F.3d at 593 (internal quotation mark omitted).

In the case at hand, the defendant asseverates that his

sentence is substantively unreasonable on two fronts. He first

submits that he deserves a more lenient sentence because of his

rehabilitation.5 Second, he complains that he already has served

a sentence in a Puerto Rico prison for a 2004 drug crime — a crime

that he says is incident to the charged conspiracy.

The charge of substantive unreasonableness is futile.

The offense of conviction is serious: the defendant served as an

enforcer for a thriving conspiracy that sold drugs in a protected

area. The defendant's criminal history is bleak. And though his

efforts at rehabilitation are laudable, the district court is in

the best position to weigh the credibility of a claim of

rehabilitation and to balance the sentencing scales in light of

such a claim. See Gall, 552 U.S. at 51-52.

So, too, the defendant's suggestion that the sentence

imposed punishes him twice for the same criminal conduct is

unavailing. In support, the defendant relies on a guideline

provision, USSG §5K2.23. That provision, however, states that a

5
In support, he notes that he has finished his high-school
degree, completed various workshops, maintained a record of steady
employment, and secured a promise of re-employment upon release
from incarceration.

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downward departure may be warranted if the defendant has completed

a term of imprisonment for a crime incident to the offense of

conviction and that crime "was the basis for an increase in the

offense level for the instant offense." United States v. Kornegay,

410 F.3d 89, 99 (1st Cir. 2005) (emphasis omitted). Here, however,

the Puerto Rico drug-trafficking conviction identified by the

defendant was not assigned any criminal history points in the

calculation of his CHC. Thus, that conviction did not serve to

increase his offense level, and section 5K2.23 does not apply.

To say more would be to paint the lily. Here, the

sentencing court offered a plausible rationale for the sentence

imposed, and that within-the-range sentence represents a defensible

outcome. Having in mind the totality of the circumstances, we

conclude that the district court did not abuse its considerable

discretion in sentencing the defendant at the top of — but within

— the GSR. In other words, the sentence was sufficient but not

greater than necessary to achieve the legitimate goals of

sentencing.

The fact that the parties jointly agreed to recommend a

lower (downwardly variant) sentence does not alter this conclusion.

In the absence of exceptional circumstances (such as the

applicability of a statutory mandatory minimum sentence), the

starting point for a court's sentencing determination is the

guideline range, not the parties' recommendations. Thus, we have

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consistently refused to accord any decretory significance to such

non-binding recommendations — or even to require a sentencing court

to explain why it decided to eschew those recommendations. See

Vargas-García, 794 F.3d at 167; United States v. Vega-Salgado, 769

F.3d 100, 104 (1st Cir. 2014). See Carrasco-de-Jesús, 589 F.3d at

29.

We need go no further.6 For the reasons elucidated

above, the sentence is

Affirmed.

— Dissenting Opinion Follows —

6
Much of what our dissenting brother has written has no
bearing on the issues that are fairly presented by this appeal.
For prudential reasons, we elect not to respond to these extraneous
comments.

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 LIPEZ, Circuit Judge, dissenting. My colleagues treat

defendant Cortés-Medina's dismissed and acquitted charges as if

they have significance separate and apart from the conduct that

they may, or may not, reflect. Hence, they find no error in the

district court's reliance on the defendant's arrest record to

justify a sentence at the top of the guidelines range -- a term of

imprisonment nearly four years longer than the sentence recommended

by the government -- despite the absence of any evidence about the

conduct underlying those ultimately unproven charges. Neither

Supreme Court precedent nor our own cases support treating as fact

mere allegations of criminal behavior that are not substantiated by

at least a preponderance of the evidence. Indeed, the cases make

clear that, where the evidence of culpability does not meet that

level of reliability, the district court errs by factoring unproven

charges into the sentence. Accordingly, Cortés-Medina is entitled

to a resentencing in which the unsubstantiated charges play no

role.

I. Standard of Review

My colleagues apply the plain error standard of review

because Cortés-Medina did not object to the portion of his

presentence investigation report ("PSR") listing charges against

him that either were dismissed or resulted in acquittal.7 I

7
The reference here to "dismissed" charges also encompasses
references by the district court and the majority to arrests that

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disagree that Cortés-Medina's challenge to the court's use of these

unsubstantiated charges was unpreserved. Certainly, Cortés-Medina

was not required to object to the inclusion of these charges in his

PSR, as he has not argued that the arrests and subsequent

proceedings did not occur. He did, however, point out in his

sentencing memorandum the flimsy foundation for many of the

charges.8 Referring to his multiple indictments in state court, he

noted that "many of the indictments got dismissed because of lack

of proof related to the supposed direct participation of the

defendant and in others there [was] no proof at all." He further

stated that "many of these accusation[s] were dismissed because of

insufficient evidence." Although Cortés-Medina did not repeat his

objection in the argument section of his memorandum, or explicitly

assert that the court should not take his dismissed and acquitted

charges into account, that objection and assertion are implicit in

his contentions that the charges lack support.9

may not have led to formal charges.
8
In addition to four prior convictions, Cortés-Medina's PSR
lists one acquittal and multiple arrests for charges that were
subsequently dismissed.
9
Cortés-Medina did not object to use of his unsubstantiated
criminal history after sentence was imposed, but the obligation to
reiterate an argument at that point is uncertain. See United
States v. Gallant, 306 F.3d 1181, 1189 (1st Cir. 2002)("[T]here is
no Federal Rule of Criminal Procedure giving advance notice to
counsel of a requirement to make post-sentence objections.").
Indeed, we have recognized the risk that a defendant might irritate
the district court by resuming argument after the sentence is
imposed. Id. at 1188-89 (observing that "few trial judges would

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warm to a rule which requires continued argument after the court
gives its sentence").

To eliminate that risk -- and thereby diminish uncertainty on
appeal concerning the appropriate standard of review -- I urge our
court to follow the lead of other circuits and adopt a prophylactic
rule requiring sentencing judges to expressly ask the parties for
objections after the sentence is announced.

The Sixth Circuit, for example, has adopted such a rule
pursuant to its supervisory power over district courts within its
jurisdiction. The rule directs sentencing judges,

after pronouncing the defendant's sentence but
before adjourning the sentencing hearing, to
ask the parties whether they have any
objections to the sentence just pronounced
that have not previously been raised. If the
district court fails to provide the parties
with this opportunity, they will not have
forfeited their objections and thus will not
be required to demonstrate plain error on
appeal. . . . Providing a final opportunity
for objections after the pronouncement of
sentence, "will serve the dual purpose[s] of
permitting the district court to correct on
the spot any error it may have made and of
guiding appellate review."

United States v. Bostic, 371 F.3d 865, 872 (6th Cir. 2004)
(footnote omitted) (quoting United States v. Jones, 899 F.2d 1097,
1102 (11th Cir. 1990), overruled on other grounds by United States
v. Morrill, 984 F.2d 1136 (1993)). The Sixth Circuit's rule is
itself derived from a similar requirement in the Eleventh Circuit.
See Jones, 899 F.2d at 1102 (instructing district courts "to elicit
fully articulated objections, following imposition of sentence, to
the court's ultimate findings of fact and conclusions of law"); id.
at 1102-03 (stating that "[c]lear articulation" from defense
counsel will "tell the appellate court precisely which objections
have been preserved and which have been waived, and enable the
appellate court to apply the proper standard of review to those
preserved").

The value of such a rule is illustrated by this case, where
the requirement would have avoided, or at least minimized, the
confusing jumble of standards deemed applicable by the majority:

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 Moreover, even if plain error review applies, Cortés-

Medina would satisfy its requirements.10 As I explain below, a

sentencing judge may not properly rely on dismissed and acquitted

charges to increase a defendant's sentence without determining, by

a preponderance of the evidence, that the charges reflect culpable

conduct. Absent record support for treating the unproven charges

as sufficiently well founded to meet that modest standard, a

court's use of them to justify a higher sentence is error that must

be characterized as plain.11 Here, the district court invoked such

charges when selecting the high end of the applicable Guidelines

range, despite the Probation Office's inability to explain the

underlying conduct or give reasons for the dismissals. The error

(1) plain error for the claim that the district court improperly
considered acquitted and dismissed charges; (2) abuse of discretion
for the claim that the court failed to adequately consider the
factors set forth in 18 U.S.C. § 3553(a); (3) plain error for the
claim that the court failed to provide an adequate explanation of
the chosen term of imprisonment; and (4) an uncertain standard of
review for the defendant's challenge to the substantive
reasonableness of his sentence (leading the majority to apply abuse
of discretion).
10
The four elements of the plain error test are: (1) an error
that was (2) clear or obvious, which both (3) affected the
defendant's substantial rights and (4) "seriously impaired the
fairness, integrity, or public reputation of judicial proceedings."
United States v. Ramos-González, 775 F.3d 483, 499 (1st Cir. 2015)
(quoting United States v. Ramos-Mejía, 721 F.3d 12, 14 (1st Cir.
2013)).
11
The majority asserts that "it defies reason" to conclude
that there was a clear or obvious error here. That assertion is
belied, however, by well-established Supreme Court and First
Circuit precedent, described below, precluding reliance on a bare
arrest record.

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was thus manifestly prejudicial. As for the miscarriage-of-justice

prong, we previously have recognized that "the difference in

potential jail time would be a concern in any balance." United

States v. Ramos-González, 775 F.3d 483, 507 (1st Cir. 2015)

(quoting United States v. Torres-Rosario, 658 F.3d 110, 117 (1st

Cir. 2011)).

Accordingly, under either standard of review, Cortés-

Medina prevails on his claim of procedural error.

II. The Standard of Reliability

This should be an easy case for concluding that a remand

is necessary because, as the majority acknowledges, the Probation

Office was unable to obtain information about the conduct

underlying the unproven or acquitted charges reported in Cortés-

Medina's PSR. The district court thus had no evidence that those

charges in fact reflected criminal behavior. As the majority

reports, the court nonetheless chose a sentence based, in part, on

Cortés-Medina's "pattern of arrests and persistent lack of follow-

up with respect to the charges that were initially preferred

against him." My colleagues have no problem with that rationale,

quoting language from one of our precedents stating that a record

of arrests or dismissed charges "may indicate 'a pattern of

unlawful behavior even in the absence of convictions.'" United

States v. Flores-Machicote, 706 F.3d 16, 21 (1st Cir. 2013)

(quoting United States v. Lozada-Aponte, 689 F.3d 791, 792 (1st

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Cir. 2012)). They maintain that, because Cortés-Medina has not

contested his arrest record, "[t]he arrest record was . . . a

proven fact, and thus properly before the district court."

(Citation omitted.)

I agree with the general proposition that past criminal

acts that did not result in conviction may be given weight in

sentencing determinations if the available proof of those criminal

acts meets some standard of reliability. I do not understand my

colleagues to disagree with that proposition. Nevertheless, when

the defendant's criminal history contains a series of dismissed or

acquitted charges, my colleagues hold that a district court may

accord that pattern of alleged criminal activity probative weight

based solely on the arrests, even if the court has no facts

substantiating the conduct underlying the alleged charges.

The majority is wrong. Sentencing based on unexamined

allegations of criminal behavior is not permitted by our own or

Supreme Court precedent. In articulating their view, my colleagues

summarily dismiss as inapposite the Supreme Court's decision in

United States v. Watts, 519 U.S. 148 (1997) (per curiam). There,

the Court held that a sentencing court may consider acquitted

conduct to impose an offense-level enhancement as long as that

conduct is proven by a preponderance of the evidence. Id. at 157.

The majority insists that Watts is inapplicable because the

district court in this case relied on Cortés-Medina's pattern of

-22-
dismissed or acquitted charges, not his conduct. And, they say,

because Cortés-Medina's record of past charges was "a proven fact,"

no error occurred.12

This attempt to distinguish Watts is misguided. A series

of arrests or past charges is inseparable from the underlying

conduct. Watts refers to the defendant's conduct because that is

the pertinent information in assessing whether the defendant's past

criminal activity is understated by reference to his convictions

alone. The relevant question cannot be whether the defendant's

non-conviction arrests and prosecutions are reported accurately --

in all likelihood, the PSR will contain an accurate record of

detentions and charges -- but whether the defendant in fact

committed the listed offenses notwithstanding the absence of

convictions for those crimes. Indeed, the defendant's conduct must

be the focus because, where the charges initially filed against him

did not bear fruit, they do not demonstrate culpability. A

sentencing court cannot simply presume that the lack of convictions

is attributable to flawed or lax prosecutorial or judicial systems

rather than the defendant's innocence. Sometimes, systemic flaws

lead to arrests without justification. See United States v.

Zapete-Garcia, 447 F.3d 57, 61 (1st Cir. 2006) (noting that "arrest

12
The majority frames its holding as an absence of plain
error, but its reasoning rejects any error at all.

-23-
'happens to the innocent as well as the guilty'" (quoting Michelson

v. United States, 335 U.S. 469, 482 (1948))).

The next question, then, is what standard of reliability

applies to the inquiry into the conduct underlying unproven

charges. As I explain below, the answer is unequivocally provided

by both Supreme Court and First Circuit caselaw.

A. The Teaching of Watts

The Supreme Court's decision in Watts confirms that a

sentencing court may not give weight to unproven crimes -- whether

uncharged, dismissed, or acquitted -- unless the court finds by at

least a preponderance of the evidence that the conduct underlying

those charges occurred. In Watts, the Court rejected an argument

that principles of due process foreclose reliance on acquitted

conduct to calculate the Guidelines range, stating that "a jury's

verdict of acquittal does not prevent the sentencing court from

considering conduct underlying the acquitted charge, so long as

that conduct has been proved by a preponderance of the evidence."

519 U.S. at 157 (emphasis added). By including this qualification,

the Court reaffirmed its prior holding that "application of the

preponderance standard at sentencing generally satisfies due

process." Id. at 156 (citing McMillan v. Pennsylvania, 477 U.S.

79, 91-92 (1986)).

Although the focus in Watts was on the use of acquitted

conduct to set the Guidelines range, the Court did not suggest that

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a standard less demanding than preponderance-of-the-evidence

applies to the use of acquitted conduct -- or any other unproven

criminal activity -- in choosing a sentence within the range.13

To the contrary, multiple statements in the Watts opinions reflect

an assumption that any facts used in sentencing -- pertaining to

allegations of past criminal conduct, or otherwise -- must be

proven by a preponderance of the evidence or an even higher

standard of reliability. First, the Court quotes commentary from

Guidelines § 6A1.3 stating that "it is 'appropriate' that facts

relevant to sentencing be proved by a preponderance of the

evidence," 519 U.S. at 156, and the majority goes on to make the

observation quoted above linking the preponderance standard with

the requirements of due process. Id.14 In addition, as described

13
Notably, the issue debated by the majority and dissent in
Watts was not whether a lesser standard should apply, but whether
acquitted conduct should be a factor at all in calculating the
Guidelines range. In his dissent, Justice Stevens conceded that
the Guidelines permit the use of acquitted conduct in selecting the
particular sentence within a range, but argued that acquitted
conduct should be entirely excluded from consideration in setting
the range. See 519 U.S. at 162, 166 (Stevens, J., dissenting).
14
Section 6A1.3(a) of the Guidelines states, in part:

In resolving any dispute concerning a factor
important to the sentencing determination, the
court may consider relevant information
without regard to its admissibility under the
rules of evidence applicable at trial,
provided that the information has sufficient
indicia of reliability to support its probable
accuracy.

The commentary invoked by the Court states: "The Commission

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above, the Court framed its holding in Watts broadly, without any

suggestion that the preponderance standard applies only for the

purpose of selecting the Guidelines range: a sentencing court is

permitted, in general, to consider "conduct underlying the

acquitted charge, so long as that conduct has been proved by a

preponderance of the evidence." Id. at 157.

Second, Justice Scalia points out that the preponderance of

the evidence standard -- the measure of reliability the Court has

endorsed for other sentencing facts -- is also consistent with due

process for conduct underlying an acquittal. He asserts that

neither the Sentencing Commission nor the courts may entirely

exclude from the sentencing calculus "information which would

otherwise justify enhancement of sentence or upward departure," or

impose "some higher standard of probative worth than the

Constitution and laws require," simply because that information

"pertains to acquitted conduct." See id. at 158 (Scalia, J.,

concurring).15

Third, and consistently, the Watts Court acknowledged the

possibility that, in some circumstances, the more demanding clear-

believes that use of a preponderance of the evidence standard is
appropriate to meet due process requirements and policy concerns in
resolving disputes regarding application of the guidelines to the
facts of a case." See 519 U.S. at 156 (citing § 6A1.3 cmt.).
15
Although Justice Scalia does not refer expressly to the
preponderance standard, he implicitly accepts the lead opinion's
affirmation of McMillan and the Court's long-held view that
preponderance of the evidence is the constitutional baseline.

-26-
and-convincing evidence standard might be appropriate. Id. at 156-

57. In a lengthy footnote citing cases reflecting "a divergence of

opinion among the Circuits," id. at 156, the Court quotes an Eighth

Circuit case characterizing the Supreme Court's McMillan decision

as approving the preponderance standard only "'for garden variety

sentencing determinations,'" id. at 156 n.2 (quoting United States

v. Townley, 929 F.2d 365, 369 (8th Cir. 1991)). In other words,

the Court in Watts considered the possibility that, at times, an

assessment more reliable than the preponderance standard might be

applicable to sentencing facts. Neither the Court nor the circuits

it quoted in Watts contemplated the possibility of proof less

reliable than preponderance of the evidence. This view that Watts

reaffirms preponderance of the evidence as the minimum standard of

reliability is also reflected in academic literature. See, e.g.,

Claire McKusker Murray, Hard Cases Make Good Law: The Intellectual

History of Prior Acquittal Sentencing, 84 St. John's L. Rev. 1415,

1468 (2010) ("Under Watts, prior acquittal sentencing is permitted

but not mandated, and a hard floor of reliability is established in

the form of the requirement that prior acquitted conduct be proved

to a preponderance of the evidence.").

B. First Circuit Law

The preponderance-of-the-evidence baseline for

considering sentencing facts is also well established in our

circuit. Indeed, we have applied the standard in this very

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context, i.e., to the choice of sentence within the Guidelines

range where the court sought to rely on unproven criminal conduct.

See United States v. Lombard, 102 F.3d 1, 4 (1st Cir. 1996) ("[T]he

district court may . . . choose to give weight to the uncharged

offenses in fixing the sentence within the statutory range if it

finds by a preponderance of evidence that they occurred . . . .");

see also United States v. Munyenyezi, 781 F.3d 532, 544 (1st Cir.

2015) ("[A] judge can find facts for sentencing purposes by a

preponderance of the evidence, so long as those facts do not affect

either the statutory minimum or the statutory maximum . . . ."

(citations omitted)); United States v. Fermin, 771 F.3d 71, 82 (1st

Cir. 2014) ("While the jury must, of course, find facts beyond a

reasonable doubt, a preponderance-of-the-evidence standard applies

to the sentencing court's factual findings."); United States v.

Gobbi, 471 F.3d 302, 314 (1st Cir. 2006) (stating that "acquitted

conduct, if proved by a preponderance of the evidence, still may

form the basis for a sentencing enhancement").

I recognize that, although this standard of reliability

is well established, we have not always used the words

"preponderance of the evidence" when considering a district court's

reliance on charges that did not lead to conviction. See, e.g.,

Flores-Machicote, 706 F.3d 16; Lozada-Aponte, 689 F.3d at 792;

Zapete-Garcia, 447 F.3d at 61. Nonetheless, we have applied that

standard even when we have not referred to it by "name," routinely

-28-
scrutinizing the facts underlying the unproven criminal charges to

ensure the necessary degree of reliability. See, e.g., United

States v. Hinkley, 803 F.3d 85, 93 (1st Cir. 2015) (upholding

court's reliance on reports of inappropriate sexual contact with

minors where district court "found that it was reasonable to rely

on the experience of the detective who prepared the police reports"

and where "certain details reported by [a victim] made the reports

'almost self-authenticating'"); United States v. Díaz-Arroyo, 797

F.3d 125, 127, 130 n.3 (1st Cir. 2015) (noting prosecutor's

explanation that charges for murder and attempted murder were

dropped "only after the sole surviving witness to the incident (a

minor who was able positively to identify the defendant as the

shooter) was threatened and fled the jurisdiction," and that

defense counsel "did not directly challenge the prosecutor's

account of the circumstances surrounding the dismissal of the

charges"); Flores-Machicote, 706 F.3d at 21 (noting that the

district court "went to considerable lengths to walk through the

defendant's prior interactions with the law . . . [and] explained,

in some detail, why [it] believed the outcome of these interactions

underrepresented the seriousness of the defendant's past criminal

conduct"); United States v. Gallardo-Ortiz, 666 F.3d 808, 814-15

(1st Cir. 2012) (noting that the district court took into account,

inter alia, that numerous charges were dismissed on speedy trial

grounds (i.e., not the merits), and rejecting defendant's

-29-
contention that the court relied on "the dismissed charges when

concluding that he displayed a violent character"); United States

v. Tabares, 951 F.2d 405, 411 (1st Cir. 1991) (noting that some

charges were dismissed "not because of any finding on the merits of

the case," but because the defendant was deported, and that

defendant did not "deny the facts, as set forth in the presentence

report, upon which these charges rested").

C. Applying the Standard

Despite the precedent described above, my colleagues

accept a bare list of past arrests and charges as sufficiently

reliable evidence that the defendant did, in fact, commit the

crimes for which he was charged but not convicted. They claim that

ample precedent in our circuit recognizes that a series of arrests

-- as distinguished from a single arrest -- "might legitimately

suggest a pattern of unlawful behavior even in the absence of any

convictions." Lozada-Aponte, 689 F.3d at 792 (quoting Zapete-

Garcia, 447 F.3d at 61). They assert that Cortés-Medina's "pattern

of arrests" and the "lack of follow-up" with respect to the charges

filed against him "speak directly to the character of the

individual, the risk of recidivism, and the need to protect the

public from future crimes."

Yet, even where a defendant's record contains a multitude

of allegations of criminal conduct, the district court -- and we in

turn -- must be certain that a preponderance of the evidence

-30-
supports a conclusion that the allegations have merit. See

Gallardo-Ortiz, 666 F.3d at 815 ("We have cautioned against

district courts relying on mere arrests as indicative of a

defendant's character to justify an upward departure from the GSR

since a criminal charge alone does not equate with criminal guilt

of the charged conduct."); Zapete-Garcia, 447 F.3d at 61 (noting a

guideline policy statement that "highlight[s] the important

distinction between direct evidence of past criminal behavior and

mere arrests that may or may not have been the result of

wrongdoing"). Here, the district court had no evidence concerning

the conduct underlying the various charges against Cortés-Medina

that ultimately were dismissed or resulted in acquittal. At the

sentencing hearing, after listing those charges and noting the

absence of explanation for the dismissals, the district court

merely voiced its "firm belie[f] that lightning doesn't strike

twice in the same place."

Presumably, the court meant to offer a different metaphor

-- "where there's smoke, there's fire" -- to say that the unproven

charges had substance because Cortés-Medina had other, similar

criminal convictions and also admitted participating in the drug

conspiracy charged in this case. When additional years of

incarceration are in the balance, however, due process requires

more than metaphors. The fire that the district court infers --

-31-
past criminal conduct -- must be based on a preponderance of the

evidence.

The cases cited by the majority to support the use of a

series of arrests as a proxy for culpability do not hold otherwise.

As described above, the panel in Flores-Machicote noted the

district court's careful examination of the defendant's prior

interactions with the law. 706 F.3d at 21. In Zapete-Garcia, the

panel rejected reliance on a single arrest that occurred more than

a decade earlier. 447 F.3d at 60-61. In the remaining two cases,

where the court gave cursory attention to the district court's

reliance on a series of past arrests, it is nonetheless evident

that the district courts had been presented with facts about the

underlying conduct. See United States v. Ocasio-Cancel, 727 F.3d

85, 91-92 (1st Cir. 2013) (indicating that the defendant's PSR

contained detail on the events giving rise to the dismissed charges

and noting that the defendant did not object to "any aspect" of the

discussion); Lozada-Aponte, 689 F.3d at 792 (referring to "Lozada's

frequent run-ins with law enforcement in Florida, Illinois, and

Puerto Rico, some of which apparently involved firearms"). I do

not dispute that the district court may rely on a PSR's depiction

of the circumstances that led to the dismissed charges as

sufficiently reliable evidence of the conduct to meet the

preponderance of the evidence standard, particularly in the absence

of any objection.

-32-
 No such evidentiary support exists here. Cortés-Medina's

PSR contains an unelaborated list of his dismissed and acquitted

charges, with notations stating that "Court documents were

requested but have not been received." The PSR states that some of

the charges were dismissed for lack of probable cause, while others

are simply described as "dismissed." The district court thus

relied improperly on those charges to sentence Cortés-Medina to a

longer term of imprisonment than it otherwise would have imposed.

III. Conclusion

A district court may not rely on a defendant's unproven

past criminal activity to increase his sentence for a later crime

unless the court determines, by a preponderance of the evidence,

the prior criminal conduct in fact occurred. This requirement

applies equally to a single instance of prior criminal activity and

to a series of alleged crimes. Invocation of a pattern does not

eliminate the need to examine each unproven criminal charge under

the preponderance of the evidence standard.

In this case, the majority concedes that no factual

support was offered to substantiate the charges on which the

district court relied. The Probation Office has also acknowledged

that it tried, but failed, to obtain the supporting information.

Hence, on this record, defendant Cortés-Medina is entitled to

resentencing without reliance on the dismissed and acquitted

-33-
charges. I therefore respectfully dissent from my colleagues'

conclusion to the contrary.

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