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.

May 12, 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.1

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

1
The panel issued an opinion in this case on January 6, 2016,
but that opinion was subsequently withdrawn. This opinion
replaces the withdrawn opinion.

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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.

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.2 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."

2
The record reflects that the probation office had sought
further information about each of these charges, but none was
forthcoming.

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 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."

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.
- 4 -
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

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
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 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
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

- 6 -
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. We

conclude, therefore, that the defendant's argument is unpreserved

and engenders plain error review.3

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.4 See id. at

153, 157.

Here, however, the sentencing court did not use

dismissed or acquitted conduct to construct an offense-level

enhancement. Instead, the court referred to the defendant's

3
While our dissenting brother cavalierly proclaims that the
argument made on appeal was "implicit in [the defendant's]
contentions" at sentencing, post at 19, a finding to that effect
would render normal principles of waiver meaningless.
4
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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prolific arrest record, which was laid out in the PSI Report and

not contested by the defendant, solely for the purpose of

determining at what point within the GSR the defendant's sentence

should be set.

Admittedly, it is not unreasonable to read Watts as an

indication that the Supreme Court might well hold that a sentencing

court may not accord any significance to a record of multiple

arrests and charges without convictions unless there is adequate

proof of the conduct upon which the arrests or charges were

predicated. Nevertheless, our own precedent contains dicta,

repeated several times, positing that a series of arrests "might

legitimately suggest a pattern of unlawful behavior even in the

absence of any convictions." 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). Today, we caution district courts against

placing weight on such speculation. But in the absence of such a

prior warning, we cannot see how the sentencing court in this case

plainly erred.

The defendant's next claim of error insists 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.
- 8 -
 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 not the slightest reason to think that the district court

overlooked them.5

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

5 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).

- 9 -
"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 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).
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 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.

It could well have believed that such items, even absent facts

about the underlying conduct, spoke directly to the character of

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

the public from future crimes. 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
- 11 -
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, 228 (1st Cir.), cert. denied, 136 S. Ct. 258 (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.
- 12 -
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

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.6 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.

6 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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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

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
- 14 -
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

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 also Carrasco-de-Jesús, 589

F.3d at 29.

We need go no further.7 For the reasons elucidated

7 Much of what our dissenting brother has written, including
his attempt to find solace in the Supreme Court's recent decision
in Molina-Martinez v. United States, No. 14-8913, slip op. (U.S.
Apr. 20, 2016), 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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above, the sentence is

Affirmed.

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— Dissenting Opinion Follows —

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 LIPEZ, Circuit Judge, dissenting. My colleagues all but

acknowledge that the district court erred by relying on appellant

Héctor Cortés-Medina's bare record of dismissed and acquitted

charges to support a sentence nearly four years longer than the

government recommended. Despite their indirect language, the

message of the majority opinion is unmistakable: district courts

may not factor unproven charges into their sentencing decisions

without finding, by a preponderance of the evidence, that the

conduct underlying those charges took place.

The majority nonetheless refuses to vacate Cortés-

Medina's sentence, relying on the plain error doctrine. Their

reasoning is flawed. Not only is the plain error standard

inapplicable on the facts of this case, but my colleagues also

fail to acknowledge that precedent from both the Supreme Court and

our own court long ago established that mere allegations of

criminal behavior may not be used in sentencing. Hence, the

district court's error here was plain. Moreover, the majority's

decision to leave Cortés-Medina's sentence intact is at odds with

the spirit and message of the Supreme Court's recent decision on

plain error in sentencing. See Molina-Martinez v. United States,

No. 14-8913, slip op. at 11-12 (U.S. Apr. 20, 2016). Briefly

stated, both the law and fairness entitle Cortés-Medina to a

resentencing in which the unsubstantiated charges play no role.

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 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. 8 I

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.9 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

8 The reference here to "dismissed" charges also encompasses
references by the district court and the majority to arrests that
may not have led to formal charges.

9 In addition to four prior convictions, Cortés-Medina's PSR
lists one acquittal and multiple arrests for charges that were
subsequently dismissed.

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charges into account, that objection and assertion are implicit in

his contentions that the charges lack support.10

Moreover, even if plain error review applies, Cortés-

Medina would satisfy its requirements. The four elements of the

10Cortés-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
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."

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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)). As I elaborate below,

the prohibition against relying on unsubstantiated allegations of

culpable conduct to justify a longer sentence has long roots in

precedent. Hence, absent evidence sufficient to meet the modest

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:
(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).

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preponderance-of-the-evidence standard, a court's use of unproven

charges in sentencing is error that must be characterized as "clear

or obvious." Moreover, 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 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)).

The Supreme Court's recent decision in Molina-Martinez

further supports the conclusion that this error would satisfy what

the majority describes as "not [an] appellant-friendly" standard.

In Molina-Martinez, the Court rejected the Fifth Circuit's "rigid"

rule that made it harder for a defendant who belatedly identifies

a Guidelines error, and whose sentence is nonetheless within the

correct Guidelines range, to show prejudice under the plain error

standard. Molina-Martinez, No. 14-8913, slip op. at 2. While

Molina-Martinez involved an incorrect Guidelines range, and the

focus here is on the district court's selection of an appropriate

sentence within an undisputed range, the Court's realistic

assessment of the burdens of the plain error standard is equally

applicable. It is not as if a more "appellant-friendly" approach
- 22 -
to plain error in sentencing would impose undue costs on the

courts. As the Court in Molina-Martinez observed, "even when a

Court of Appeals does decide that resentencing is appropriate, 'a

remand for resentencing while not costless, does not invoke the

same difficulties as a remand for retrial does,'" id. at 15

(quoting United States v. Wernick, 691 F.3d 108, 117-118 (2d Cir.

2012), and United States v. Sabillon-Umana, 772 F.3d 1328, 1334

(10th Cir. 2014) (stating that the "cost of correction is

. . . small" because "[a] remand for sentencing . . . doesn't

require that a defendant be released or retried").

Molina-Martinez thus rejects the misguided, court-

centric obsession with the finality of sentences in favor of a

practical view of the balance of interests when a court confronts

the belated claim of a criminal defendant whose sentence was

flawed. Given the modest impact of a resentencing on the judicial

system, we should not lightly deny that remedy to a defendant whose

term of incarceration appears to have been erroneously lengthened.

Yet, the majority gives only glancing attention to the obvious

error, and the resulting unfairness, in the sentence imposed on

Cortés-Medina.11 On the record before us, even under the plain

11
Moreover, despite cautioning district courts against
placing weight on a series of unproven charges, the majority
elsewhere in its opinion suggests that the court's reliance on
such charges in this case was acceptable. In rejecting
appellant's separate argument that the court did not provide an
adequate explanation for imposing a top-of-the-range sentence, my
- 23 -
error standard, Cortés-Medina should prevail on his claim of

procedural error.

II. The Plainness of the Preponderance Standard

My colleagues write that the Supreme Court "might well

hold that a sentencing court may not accord any significance to a

record of multiple arrests and charges without convictions unless

there is adequate proof of the conduct upon which the arrests or

charges were predicated." Even as qualified, this observation --

anchored in the Supreme Court's nearly two-decades-old decision in

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

effectively recognizes the long heritage of the principle that

criminal charges may not play a role in sentencing without proof

that the underlying conduct, in fact, occurred. Nonetheless, the

majority depicts the district court's error as not "plain" in light

of dicta in our court's caselaw.

The majority is wrong in suggesting that the governing

law was equivocal at the time of Cortés-Medina's sentencing. As

described below, both Watts and our own precedent make clear that

the focus must be on the defendant's actual conduct, not on mere

colleagues note that the court "could well have believed, even
absent facts about the underlying conduct," that Cortés-Medina's
"pattern of arrests and the persistent lack of follow-up" "spoke
directly to the character of the individual, the risk of
recidivism, and the need to protect the public from future crimes."
This implicit endorsement of the district court's now-discredited
reasoning further reflects the majority's inattention to fairness
in this case.
- 24 -
allegations of criminal activity unsupported by any facts.

Indeed, this is commonsense. Even a series of arrests does not

prove culpability if none of the charges bore fruit and the court

has no information about what triggered the arrests. 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 'happens to the innocent as well as the guilty'"

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

see also, e.g., United States v. Gallardo-Ortiz, 666 F.3d 808, 815

(1st Cir. 2012) ("We have cautioned against district courts relying

on mere arrests as indicative of a defendant's character . . .

since a criminal charge alone does not equate with criminal guilt

of the charged conduct."). Hence, a court imposing incarceration

for a later crime cannot simply presume that past charges resolved

without conviction, even if there were many of them, are

attributable to flawed or lax prosecutorial or judicial systems

rather than the defendant's innocence.

Nor was there any doubt at the time of Cortés-Medina's

sentencing in December 2013 as to the standard of reliability

applicable to the consideration of uncharged, dismissed or

acquitted criminal activity. The need for proof by at least a

preponderance of the evidence had been plainly articulated in both

Supreme Court and First Circuit caselaw well before that date.

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A. The Teaching of Watts

In Watts, the Supreme 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). In so stating, 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 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.12

To the contrary, multiple statements in the Watts opinions reflect

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

12Notably, 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).

- 26 -
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.13 In addition, as quoted

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.

13 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
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.).

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 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).14

Third, and consistently, the Watts Court acknowledged

the possibility that, in some circumstances, the more demanding

clear-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

14Although 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.
- 28 -
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.").

Watts was thus not merely a harbinger of a reliability

requirement for considering, in the majority's words, "a record of

multiple arrests and charges without convictions." Maj. Op.

Rather, Watts applied a well-established minimum standard in a

context -- a jury verdict of acquittal -- where the competing

argument was that such charges should not be considered at all.

B. First Circuit Law

The preponderance-of-the-evidence baseline for

considering sentencing facts has also long been established in our

circuit. Indeed, two decades ago, we applied the standard in this

very context, i.e., to the choice of sentence within the Guidelines
- 29 -
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, despite this well-established standard

of reliability, 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., United States

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

v. Lozada-Aponte, 689 F.3d 791, 792 (1st Cir. 2012); Zapete-Garcia,

447 F.3d at 61. Nonetheless, we have applied that standard even

when we have not referred to it by "name," routinely scrutinizing
- 30 -
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"); Gallardo-Ortiz, 666 F.3d at 814-15 (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 contention that the court relied on "the
- 31 -
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

Given the precedent described above, this should be an

easy case for concluding that a remand is necessary because, as

the majority concedes, the Probation Office was unable to obtain

any 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. At the sentencing hearing, after listing the

charges and noting the absence of explanation for the dismissals,

the 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.

The majority concludes that this handling of Cortés-

Medina's criminal history is not plain error because of what they

admit is dicta in our precedent "positing that a series of arrests"
- 32 -
-- as distinguished from a single arrest -- "'might legitimately

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

convictions.'" See supra (citing Lozada-Aponte, 689 F.3d at 792

(quoting Zapete-Garcia, 447 F.3d at 61)). However, as the label

"dicta" reflects, the cases they cite do not support the

proposition that a court may rely on multiple unproven charges in

circumstances where, as here, there is no proof of the defendant's

underlying conduct. In the cited cases, the courts considered

evidence of the 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"). 15 Moreover, we cannot allow incorrect,

speculative dicta to override standards that are otherwise clearly

articulated by the Supreme Court and our own precedent.

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

15 In the third case, Zapete-Garcia, the panel rejected
reliance on a single arrest that occurred more than a decade
earlier, speculating that it might view "a series of past arrests"
differently. 447 F.3d at 60-61.
- 33 -
PSR states that some of the charges were dismissed for lack of

probable cause, while others are simply described as "dismissed."

The court thus had no basis -- let alone a preponderance of the

evidence -- to find that the "smoke" represented by the unproven

charges signified "fire." When additional years of incarceration

are in the balance, due process requires more than metaphors. The

district court thus erred -- plainly -- by relying on those charges

to sentence Cortés-Medina to a longer term of imprisonment than it

otherwise would have imposed.

III. Conclusion

It has been established for decades that a district court

may not rely on allegations of a defendant's past criminal activity

to increase his sentence for a later crime. Instead, if the court

wishes to consider that alleged conduct at sentencing, it must

determine, by a preponderance of the evidence, that the prior

criminal conduct 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.
- 34 -
Hence, on this record, defendant Cortés-Medina is entitled to

resentencing without reliance on the dismissed and acquitted

charges. As the Supreme Court has now highlighted in rejecting a

"rigid" approach to plain error in sentencing, "the cost of

correction is . . . small," Molina-Martinez, slip op. at 15

(internal quotation marks omitted), and any concern about the

burden of additional proceedings is therefore unfounded. I

respectfully dissent from my colleagues' conclusion to the

contrary.

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