United States Court of Appeals
For the First Circuit
No. 14-2147
UNITED STATES,
Appellee,
v.
ALEXANDER RODRÍGUEZ-MELÉNDEZ, a/k/a Cinco Mil,
Defendant-Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Aida M. Delgado-Colón, U.S. District Judge]
Before
Howard, Chief Judge,
Lipez and Barron, Circuit Judges.
Rick Nemcik-Cruz on brief for appellant.
Rosa Emilia Rodríguez-Vélez, United States Attorney, Nelson
Pérez-Sosa, Assistant United States Attorney, Chief, Appellate
Division, and Francisco A. Besosa-Martínez, Assistant United
States Attorney, on brief for appellee.
July 8, 2016
LIPEZ, Circuit Judge. After serving a prison term for
a drug trafficking offense, appellant Alexander Rodríguez-Meléndez
admitted to possessing a firearm in furtherance of a drug
trafficking crime in violation of the conditions of his supervised
release. The district court revoked supervised release and
sentenced him to 36 months imprisonment. Rodríguez-Meléndez
appeals, arguing that his sentence was procedurally and
substantively unreasonable.
We conclude that his sentence was procedurally
unreasonable because it was premised on purported facts from
Probation Office records, directly contrary to the facts contained
in the relevant Presentence Investigation Report (PSR).
Accordingly, we vacate the sentence and remand for resentencing.1
I.
After completing a prison sentence for conspiracy to
possess with intent to distribute narcotics, appellant began
serving an eight-year term of supervised release on June 14, 2012.
On January 31, 2014, police executed a search warrant on his home
and vehicle, and seized a .40 caliber pistol, two magazines
containing 22 rounds of .40 caliber ammunition each, and at least
40 grams of cocaine. Based on that search, the Probation Office
1 In light of this disposition, we do not address appellant's
argument of substantive unreasonableness. We intimate no view on
that issue.
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filed a motion to show cause alleging that appellant had violated
the conditions of his release by: committing a federal crime, see
U.S.S.G. § 5D1.3(a)(1), possessing a firearm and ammunition, see
id. § 5D1.3(d)(1), and possessing a controlled substance, see id.
§§ 5D1.3(a)(2), (c)(7). Appellant received a copy of the motion,
which explained the factual basis of the allegations as described
above. He subsequently conceded that he had violated the
conditions of his release by committing a new federal offense
involving possession of a firearm. In a separate proceeding before
a different judge, appellant pled guilty to possessing a firearm
in furtherance of a drug trafficking crime. See 18 U.S.C.
§ 924(c)(1)(A). He has acknowledged that revocation was mandatory.
See id. § 3583(g)(2) (requiring revocation for possession of a
firearm in violation of the conditions of release).
At the revocation hearing, which focused on sentencing
because appellant had already conceded his violation, appellant
argued that the court ought to consider his role as the provider
for his family and reduce his sentence accordingly. Unconvinced,
the district court imposed 36 months imprisonment -- the maximum
permitted by statute,2 six months more than the high end of the
2Appellant's original conviction was a Class B felony. Where
the basis for imposing a term of supervised release is a Class B
felony, the maximum sentence for violating the conditions of
supervised release is 36 months. 18 U.S.C. § 3583(e)(3).
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applicable Sentencing Guidelines range,3 and 12 months more than
the government's recommendation.4
Before arriving at that sentence, the district court
said that, in its view, appellant was "not adjusting well" to life
outside prison. It premised this conclusion in part on information
"within the record of the probation office . . . that during the
term of supervision [appellant] tested positive a couple of times."
It mentioned this point twice, and later recommended that appellant
receive drug treatment in prison. The court expressed particular
concern that appellant had returned to bad behavior shortly after
his release, i.e., he "tested positive a couple times" and was
caught with drugs and a gun within 18 months. In the court's
words, "it was not too long after he was released on supervision
that he began to experience difficulties." The probation officer
present at the hearing did not comment on the matter.5
3 Appellant's offense under 18 U.S.C. § 924(c)(1)(A) was a
Grade A violation of the conditions of supervised release.
U.S.S.G. § 7B1.1(a)(1); United States v. Ortiz-García, 665 F.3d
279, 285 (1st Cir. 2011). Given appellant's Criminal History
Category of IV, the Guidelines recommended that he serve 24 to 30
months of his supervised release in prison. U.S.S.G. § 7B1.4(a).
4 Appellant was later sentenced to the mandatory minimum of
five years in prison in the parallel proceeding, as recommended by
the Sentencing Guidelines. See 18 U.S.C. 924(c)(1)(A)(i);
U.S.S.G. § 2K2.4(b). That sentence runs consecutive to the
revocation sentence imposed in this case. See U.S.S.G. § 7B1.3(f).
5 The probation officer did contribute additional background,
informing the court that appellant had been under criminal
investigation after his release. Appellant believes that this
disclosure prejudiced him in the eyes of the court. Appellant
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The court's observation that Probation Office records
indicated that appellant had "tested positive" during his
supervised release ran directly contrary to what we know of the
Probation Office's records. Two days earlier, the Probation Office
issued a PSR in appellant's parallel criminal proceeding
indicating that "urine tests collected by the U.S. Probation
officer yielded negative results to all drugs tested," and that
"during his federal supervised release term, the defendant has not
ingested any illegal drugs."
After discussing appellant's poor adjustment to life
outside of prison, the court justified the 36-month prison term
with reference to the breach of trust created by the violation of
the conditions of supervised release, in combination with "the
danger posed to the community by possess[ion of] a weapon." See
U.S.S.G. Ch. 7, Pt. A(3)(b). Rodríguez-Meléndez timely appealed,
arguing that his sentence was procedurally and substantively
unreasonable.
reads the court's statement that "the authorities were looking at
you and that led to you having this weapon at your house" to
indicate that the court believed that the investigation somehow
caused him to obtain a weapon. We read the transcript differently.
In context, it appears to be a statement of chronology, not
causation, simply stating that the criminal investigation began
before appellant was caught with a firearm. In all, the district
court seemed unperturbed by the fact that appellant was being
investigated after his release, noting that "charges did not
materialize" from that investigation, which was "to the
defendant[']s benefit" at sentencing.
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II.
As with sentences imposed following a criminal
conviction, we ordinarily review sentences imposed following
revocation of supervised release for abuse of discretion. United
States v. Wright, 812 F.3d 27, 30 (1st Cir. 2016); United States
v. Santiago-Rivera, 594 F.3d 82, 84 (1st Cir. 2010). However,
appellant failed to raise his claims below, and concedes that the
applicable standard is plain error. See United States v. Dávila-
González, 595 F.3d 42, 47 (1st Cir. 2010). For appellant to
prevail, he therefore must show "(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." United States v. Roy, 506 F.3d 28, 30 (1st Cir.
2007) (quoting United States v. Duarte, 246 F.3d 56, 60 (1st Cir.
2001)).
III.
We confront a situation in which the sentencing court
cited and relied upon a fact that was demonstrably false. See
Gall v. United States, 552 U.S. 38, 51 (2007) (stating that
"selecting a sentence based on clearly erroneous facts" is an abuse
of discretion); United States v. Portalla, 985 F.2d 621, 622 (1st
Cir. 1993) (noting that evidence used in revocation hearings must
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be "reliable"). The district court twice asserted that appellant
had tested positive for controlled substances while on release,
attributing that information to Probation Office records. Yet,
the only Probation Office record of which we are aware -- the PSR
served two days prior to the sentencing proceeding here -- negates
that assertion. The government does not dispute that appellant
never tested positive for controlled substances or cite any
evidence that he used controlled substances while on supervised
release. As a result, in the parallel criminal case, a district
court handed down a within-Guidelines sentence premised on an
accurate view of the facts supplied by the Probation Office, while
in this revocation case, the district court imposed an above-
Guidelines sentence based on an erroneous understanding of the
same Probation Office records.
The government's argument to the contrary is
unconvincing. The government argues, essentially, that "at no
time was Rodríguez-Meléndez accused of testing positive for
illegal drugs," and that he was instead accused by the Probation
Office of "excessive use of alcohol," suggesting that the court
must have been referring to alcohol rather than drugs. Yet, while
it is true that appellant was not accused by the Probation Office
of using controlled substances, he was also not accused of
excessive use of alcohol. To the contrary, appellant was alleged
to have violated Standard Condition 7, which required him to
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"refrain from excessive use of alcohol and . . . not purchase,
possess, use, distribute, or administer any controlled substance."
U.S.S.G. § 5D1.3(c)(7). In context it is clear that the Probation
Office was accusing appellant under the possession of controlled
substances prong, rather than the alcohol prong, of that condition.
The Probation Office's motion did not otherwise mention alcohol,
and there is no indication that appellant had in fact abused
alcohol while on supervised release. Further, it would be unusual
to use the term "test positive" in reference to alcohol. The
district court's statement at the outset of the revocation hearing,
that appellant "also violated condition number 7 requiring him to
refrain from excessive use of alcohol," thus appears to be a
shorthand reference to the text of Standard Condition 7, not an
indication that any alcohol abuse had been alleged. Hence the
court's insistence that appellant had tested positive was a
reference to the use of controlled substances while on release, a
clear and obvious error, establishing the first two prongs of the
plain error analysis. See Roy, 506 F.3d at 30.
We also conclude that there is "a reasonable probability
that, but for the error, the district court would have imposed a
different, more favorable sentence," and that, therefore,
appellant's substantial rights have been affected. United States
v. González-Castillo, 562 F.3d 80, 83 (1st Cir. 2009) (quoting
United States v. Perazza-Mercado, 553 F.3d 65, 78 (1st Cir. 2009)).
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The court's erroneous belief that appellant had used drugs was not
the most important factor in its sentencing decision. We do not
doubt that the sentence was driven primarily by appellant's
commission of a second drug trafficking crime and the danger posed
by his possession of a loaded weapon. But the district court's
repeated references to the positive drug tests, which it saw as
evidence that appellant was not adjusting well to life outside
prison, indicate that the drug issue was a salient one in its
analysis. There is a reasonable probability that, absent the
aggravating drug use factor, the court would have chosen a sentence
below the maximum.
Finally, we conclude that the reliance of the court on
a demonstrably wrong fact in imposing its sentence for the
violation of supervised release is an error that "seriously
impair[s] the fairness" and "public reputation of judicial
proceedings." Roy, 506 F.3d at 30 (quoting Duarte, 246 F.3d at
60). Two courts imposed sentences in related cases, one within
the Guidelines range, one above it, relying on mutually exclusive
facts. To protect the fairness and integrity of the sentencing
process, the district court should impose a sentence in this
revocation proceeding based on a correct view of the facts. Hence,
we vacate the judgment of the district court.
So ordered.
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