United States Court of Appeals
For the First Circuit
No. 15-2109
UNITED STATES OF AMERICA,
Appellee,
v.
JULIO ROMÁN-HUERTAS,
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
Torruella, Lynch, and Thompson,
Circuit Judges.
Eleonora C. Marranzini, Research and Writing Specialist, Eric
Alexander Vos, Federal Public Defender, and Vivianne M. Marrero-
Torres, Assistant Federal Public Defender, Supervisor, Appeals
Section, on brief for appellant.
Francisco A. Besosa-Martínez, Assistant United States
Attorney, Rosa Emilia Rodríguez-Vélez, United States Attorney, and
Mariana E. Bauzá-Almonte, Assistant United States Attorney, Chief,
Appellate Division, on brief for appellee.
February 9, 2017
TORRUELLA, Circuit Judge. Julio Román-Huertas ("Román")
pled guilty to being a felon in possession of a firearm in
violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2). His plea
agreement recommended a total offense level under the United States
Sentencing Guidelines (the "Guidelines") of seventeen. At his
sentencing hearing, Román objected to the total offense level of
seventeen, arguing that it should instead be twelve because his
prior felony was not "a controlled substance offense" under the
Guidelines. Relying on an untranslated Spanish document, the
district court ruled that his total offense level was seventeen.
The Guidelines' recommended sentence was twenty-seven to thirty-
three months' imprisonment, but the district court sentenced Román
to forty-six months' imprisonment. Because the district court
improperly relied on an untranslated document, we vacate Román's
sentence and remand for resentencing.
I. BACKGROUND
On March 8, 2014, while Román and another man were
driving in San Juan, Puerto Rico, Román fired one shot from his
pistol into the air. Agents from the Puerto Rico police department
were in the area, and they arrested Román and seized Román's pistol
and an additional magazine. Román was charged with being a felon
in possession of a firearm.
-2-
On April 16, 2014, Román entered into a plea agreement,
which included "advisory Guideline calculations" of a base offense
level of twenty and a three-level credit for acceptance of
responsibility, for a total offense level of seventeen. This
calculation assumed that Román's prior conviction had been a
"controlled substance offense" under U.S.S.G. § 2K2.1(a)(4)(A).
Although the parties did not stipulate to a Criminal History
Category ("CHC"), the plea agreement's advisory Guideline
calculations indicated that Román's recommended sentence would be
twenty-seven to thirty-three months if he had a CHC of II. "The
parties agree[d] to recommend the lower end of the applicable
guideline range."
On August 12, 2014, the probation officer filed a
presentence investigation report (the "PSR"). The PSR calculated
a total offense level of seventeen and a CHC of II, resulting in
a recommended sentence of twenty-seven to thirty-three months.
Román's sentencing memorandum, filed on September 5, 2014, stated
that his "offense level [was] expected to be level 17." On
August 27, 2015, the probation officer filed an addendum to the
PSR, which stated that Román "ha[d] not filed any written
objections."
On September 2, 2015, more than a year after the PSR was
filed, Román filed objections to it. Román argued that the PSR
-3-
improperly calculated his total offense level as seventeen,
because Román's prior conviction under Article 406 of the Puerto
Rico Controlled Substances Act, P.R. Laws tit. 24, § 2406, "is not
a 'controlled substance offense' in regards to the Guideline
Section 2K2.1." Specifically, Román asserted that "not all
offense[s] under [Article 406] meet [U.S.S.G. § 4B1.2(b)'s]
definition" of a controlled substance offense. 1 Thus, Román
contended that his total offense level should be twelve, 2 not
seventeen as the PSR and his plea agreement recommended.
The district court held a sentencing hearing the next
day, and Román affirmed that he "reinstate[d] this objection" to
the total offense level of seventeen. The Government responded
that under "a modified categorical approach" the district court
could "examine if there are existing documents that allow us to
determine whether [Román's] particular violation of [Article] 406"
was a controlled substance offense. The district court then
stated that it had "the document here which has the legal basis."3
1 U.S.S.G. § 4B1.2(b) provides the Guidelines' definition of a
"controlled substance offense" and is cross-referenced by other
sections of the Guidelines, including U.S.S.G. § 2K2.1(a)(4)(A).
2 If his prior conviction was not for a controlled substance
offense, Román's base offense level would be fourteen, rather than
twenty, see U.S.S.G. § 2K2.1(a)(6), but he would only be eligible
for a two-level acceptance of responsibility credit, see U.S.S.G.
§ 3E1.1(b).
3 The district court and the parties used both "document" and
-4-
According to the district court, that document "indicate[d] . . .
that the charges were for violation of . . . [A]rticle 401 that
entails distribution of a controlled substance" but were "reduced
to a violation of [A]rticle 406." The district court further
explained that "the description" in "this criminal complaint . . .
entails and encompasses the possession with intent to distribute
a controlled substance." The district court then stated that "the
offense charged meets the definition of . . . a controlled
substance offense." When Román asserted "that the document[s]
that the Court can examine are limited," the district court replied
that it had "exercise[d its] due diligence in terms of checking
that we had the proper documents."
The document the district court relied on was never
entered into the record, and so it is not available to us on
appeal. The parties agree, and it is clear from the record,
however, that the document was in Spanish.
During the argument concerning the proper calculation of
Román's total offense level, the Government opposed Román's
"documents" to describe what they were reviewing. It is not clear
from the hearing transcript whether there was a single document or
multiple documents, and the document or documents are not part of
the record. Except where quoting from the transcript, we will use
"document" to describe what the parties reviewed.
To facilitate meaningful review of sentences, we urge parties
to include in the appellate record any documents relied upon below.
-5-
arguments on the merits. It never objected, either in writing or
at the hearing, to Román's untimely objection to the PSR. After
Román presented his mitigating facts, the Government recommended
a sentence at the "lower end" of the Guidelines' recommended range.
After the exchange concerning the nature of the
controlled substance offense, Román "ask[ed] the Court to follow
the joint recommendation and impose a sentence of 27 months." The
district court ultimately sentenced Román to forty-six months'
imprisonment, highlighting the fact that Román had fired his gun
into the air "while driving a vehicle" in a city, reflecting a
"blatant disregard for the law and public safety."
Román timely appealed his sentence. He argues that the
district court (1) committed a procedural error when it determined
that Román's prior conviction was a "controlled substance offense"
under U.S.S.G. § 2K2.1(a)(4)(A), (2) committed plain error by
relying on an untranslated Spanish document, (3) committed a
procedural error by failing to justify its upward variance, and
(4) imposed a sentence that was substantively unreasonable.
II. ANALYSIS
A. The English Language Requirement and the Standard of Review
The Jones Act requires that "[a]ll pleadings and
proceedings in the United States District Court for the District
of Puerto Rico . . . be conducted in the English language." 48
-6-
U.S.C. § 864. "It is clear, to the point of perfect transparency,
that federal court proceedings must be conducted in English."
United States v. Millán-Isaac, 749 F.3d 57, 64 (1st Cir. 2014)
(quoting United States v. Rivera-Rosario, 300 F.3d 1, 5 (1st Cir.
2002)). This rule applies to all stages of a federal court
proceeding, including a sentencing hearing.4 Id.
Román concedes that he did not object to the district
court's use of the untranslated document. The parties therefore
assume that the plain error standard of review applies. They are
incorrect. In Rivera-Rosario, the defendants' attorney did not
object to the presentation of Spanish tape-recordings and
documents to the jury and in fact objected to an English
translation it considered faulty. 300 F.3d at 5. We rejected the
Government's argument that the plain error standard applied,
holding that the district court had an "independent duty" to ensure
the proceedings were conducted in English, and so "we relieve[d]
the parties of their usual duty to contemporaneously object." Id.
at 6-7. Instead, we held that "violations of the English language
requirement will constitute reversible error whenever the
4 The fact that a probation officer, rather than a party, supplied
the untranslated document to the district court is irrelevant to
our analysis. The Jones Act applies with equal force to any
material that a probation officer wants the district court to
consider at sentencing.
-7-
appellant can demonstrate that the untranslated evidence has the
potential to affect the disposition of an issue raised on appeal."
Id. at 10. We reaffirmed this standard of review in Millán-Isaac,
rejecting the Government's assertion that we had "confined Rivera-
Rosario to its facts" and declining to follow any opinions that
implied a different standard. Millán-Isaac, 749 F.3d at 64 n.1.
We will therefore overturn Román's sentence if "the untranslated
[document] has the potential to affect the disposition" of his
appeal.5 Id. at 64.
B. Román Did Not Waive His Objection to the Calculation of His
Total Offense Level
We must first address the Government's contention that
Román knowingly waived his objection to the calculation of his
total offense level. "Waiver, where it occurs, is treated as an
'intentional,' and therefore permanent, abandonment of a
position." United States v. Torres-Rosario, 658 F.3d 110, 115
(1st Cir. 2011) (citing United States v. Walker, 538 F.3d 21, 22
(1st Cir. 2008)). "[A] waived issue ordinarily cannot be
5 In Rivera-Rosario, we reviewed all five of the defendants'
convictions for reversible error under the Jones Act, even though
only two had "raised this issue on appeal," because "violations of
the English language requirement . . . have the potential to
eviscerate a party's right to meaningful appellate review." 300
F.3d at 10 n.11. We therefore review Román's Jones Act claim
under the correct standard even though he mistakenly believed that
it was subject to plain error review.
-8-
resurrected on appeal." United States v. Rodríguez, 311 F.3d 435,
437 (1st Cir. 2002). "By contrast, a mere failure to object
'forfeits' a claim, so review on appeal is [generally] only for
plain error." Torres-Rosario, 658 F.3d at 115. If Román waived
his objection to his calculated total offense level of seventeen,
the district court's use of the untranslated document -- which
related only to that calculation -- cannot affect the disposition
of his appeal.
The Government identifies three ways in which Román
waived his objection: first, by stipulating to the calculation
in the plea agreement; second, by failing to file a written
objection to the PSR until the day before the sentencing hearing;
and third, by acquiescing at the sentencing hearing. The
Government did not raise Román's stipulation or untimely objection
before the district court, however, and instead addressed the
merits of Román's objection, and so it waived the first two
asserted bases. See United States v. Castro-Taveras, 841 F.3d 34,
54 (1st Cir. 2016) ("[T]he government did not argue forfeiture and
instead addressed the merits of [the] claim . . . . Hence, the
government waived its forfeiture argument . . . ."); Sotirion v.
United States, 617 F.3d 27, 32 (1st Cir. 2010) (holding that the
government waived its procedural default defense by failing to
raise it in the district court). For its third basis, the
-9-
Government relies on a statement by Román's counsel at the
sentencing hearing: "Then Your Honor I would ask the Court to
follow the joint recommendation and impose a sentence of 27
months." Absent context, this may seem like acquiescence, but it
came after the district court had already ruled that "the offense
charged meets the definition of . . . a controlled substance
offense" and that it "had the proper documents" to make that
determination. Accepting the district court's ruling and moving
to a fallback position is neither waiver nor forfeiture.
C. The Untranslated Document Had the Potential to Affect the
Disposition of Román's Appeal
We must therefore examine whether the district court's
use of the untranslated document "has the potential to affect"
Román's argument that his prior conviction under Article 406 was
not a controlled substance offense. U.S.S.G. § 4B1.2(b) defines
a "controlled substance offense" to include the violation of a
state law "that prohibits . . . the possession of a controlled
substance (or a counterfeit substance) with intent to manufacture,
import, export, distribute, or dispense." This encompasses "the
offenses of aiding and abetting, conspiring, and attempting to
commit such offenses." U.S.S.G. § 4B1.2 cmt. n.1. It does not,
however, include mere possession offenses. See United States v.
Ramos-González, 775 F.3d 483, 507 n.27 (1st Cir. 2015).
-10-
Román previously pled guilty to Article 406, but, as the
Government concedes, that statute "encompasses both predicate and
non-predicate conduct." It was the Government's burden to
establish, through the kinds of documents approved by Shepard v.
United States, 544 U.S. 13, 17 (2005), that Román's prior
conviction was a controlled substance offense. United States v.
Dávila-Félix, 667 F.3d 47, 55 (1st Cir. 2011). The Government
contends that Román "does not refute -- and indeed, concedes" that
he was charged under Puerto Rico Laws tit. 24, § 2401 ("Article
401"), which the Government asserts must be a controlled substance
offense.6 But the Government must show that Román was convicted
of a controlled substance offense, and he pled guilty under Article
406, not Article 401. To bridge this gap, the Government further
asserts that "the record" shows that Román was "charged under
Article 401's 'possession with intent to distribute' modality,"
and so his Article 406 guilty plea was a distribution conviction.
The Government cites to the PSR in support of this proposition,
however, and a PSR is not "an approved source for determining
whether" a defendant's conviction was based on a controlled
6 Román disputes whether convictions under Article 401 are
categorically controlled substance offenses. We have previously
stated that they are not, Dávila-Félix, 667 F.3d at 56, but we do
not rely on that holding here, and so we need not address the
Government's argument that we were not apprised of controlling
Puerto Rico case law in that case.
-11-
substance offense. Ramos-González, 775 F.3d at 506 (citing United
States v. Carter, 752 F.3d 8, 20 (1st Cir. 2014)).
Because the district court relied only on the
untranslated document to calculate Román's total offense level,
that document "affect[s] the disposition" of his appeal. See
Millán-Isaac, 749 F.3d at 64. We therefore must vacate Román's
sentence and remand for resentencing. We need not reach Román's
remaining claims of error.
Finally, we briefly address resentencing. The
untranslated document was not evidence, and so any certified
translation would constitute new evidence. In general, "the
district court may consider only such new arguments or new facts
as are made newly relevant by the court of appeals' decision" on
remand for resentencing. United States v. Dávila-Félix, 763 F.3d
105, 110 (1st Cir. 2014) (alteration omitted) (quoting United
States v. Ticchiarelli, 171 F.3d 24, 32 (1st Cir. 1999)). We have
previously allowed additional factfinding where the Government did
not have an incentive to present evidence, but not "where the
government asked for the enhancement but failed to adduce
sufficient proof for its imposition -- a situation in which there
would not likely be reason to permit a second bite at the apple."
United States v. Montero-Montero, 370 F.3d 121, 124 (1st Cir.
2004). Here, the Government asked for a total offense level of
-12-
seventeen "but failed to adduce sufficient proof for its
imposition." See id. The Jones Act requires federal courts to
conduct proceedings "in the English language," 48 U.S.C. § 864,
and our case law has reaffirmed this many times. E.g., Rivera-
Rosario, 300 F.3d at 5; Millán-Isaac, 749 F.3d at 64. The
Government therefore had every incentive to ensure that the
district court relied only on evidence presented in the English
language. "[N]o party -- including the government -- is entitled
to an unlimited number of opportunities to seek the sentence it
desires." Ramos-González, 775 F.3d at 508 (quoting Dávila-Félix,
763 F.3d at 113). On remand, therefore, the Government may not
present new evidence of Román's prior conviction.
III. CONCLUSION
We vacate Román's sentence and remand for resentencing
because the district court improperly relied on an untranslated
document in calculating Román's offense level.
Vacated and Remanded.
-13-