United States v. Acevedo-Lopez

United States Court of Appeals
For the First Circuit

No. 15-2523

UNITED STATES OF AMERICA,

Appellee,

v.

LUTGARDO ACEVEDO-LÓPEZ,

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, Lipez, and Barron,
Circuit Judges.

Martin G. Weinberg, with whom Kimberly Homan, were on brief,
for appellant.
Juan Carlos Reyes-Ramos, Assistant United States Attorney,
with whom Rosa Emilia Rodríguez-Vélez, United States Attorney, and
Mariana E. Bauzá-Almonte, Assistant United States Attorney, Chief,
Appellate Division, were on brief, for appellee.

October 11, 2017
 TORRUELLA, Circuit Judge. Defendant-Appellant Lutgardo

Acevedo-López ("Acevedo") pled guilty to violating 18 U.S.C.

§§ 371 and 666(a) by conspiring to bribe and paying a bribe to a

judge on the Puerto Rico Court of First Instance. Acevedo appeals

his sentence of nine years' imprisonment. We affirm.

I. BACKGROUND

A. Factual Background

Prosecutors in the Aguadilla judicial region of

Puerto Rico charged Acevedo with aggravated negligent homicide,

obstruction of justice, and driving under the influence of

alcoholic beverages after he killed another driver in a car

accident on June 30, 2012. In November 2012, Ángel Román-Badillo

("Lito") -- a long-time acquaintance of Acevedo -- met with Manuel

Acevedo-Hernández (the "Judge"), a Puerto Rico Superior Court

Judge in the Aguadilla judicial region, and the Judge's brother,

Saúl Acevedo-Hernández ("Saúl"), and nephew, Miguel Acevedo-Manjo

("Miguel") at a restaurant.1 They discussed Acevedo's case, and

Lito told the Judge that Acevedo's case would be assigned to him.

The Judge told Lito that, if he was assigned the case, he would

let Lito know.

1 Because a number of people mentioned in this opinion have the
last name "Acevedo," we refer to them by either their first name
or a nickname used in the record. We mean no disrespect in doing
so.

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 In subsequent meetings, the Judge informed Lito that the

case had been officially assigned to him. The Judge commented

that Acevedo's criminal case was so delicate that it "could not be

worked on, not even for $100,000," but the Judge also stated that

he wanted a seat on the state appellate court and government jobs

for Saúl and Miguel.

The Judge eventually agreed to provide Acevedo with

favorable treatment. From November 2012 to April 2013, Lito would

invite the Judge, Saúl, Miguel, and other friends to bars and

restaurants, and Acevedo would pay for everything. Through Lito,

Acevedo also: (1) paid the Judge's pending state income tax debt;

(2) bought the Judge gifts; (3) arranged for construction

improvements on the Judge's garage; and (4) purchased a used

motorcycle for the Judge.

Acevedo also worked to procure a seat on the state

appellate court for the Judge. In December 2012, Acevedo arranged

a meeting at a golf tournament between the Judge and Anaudi

Hernández ("Hernández"), a businessman with connections to the

then-Governor-elect who had previously helped another judge get

reappointed. On December 30, 2012, Lito drove the Judge to the

golf tournament. At the tournament, Lutgardo Acevedo-López II

("Bebé"), Acevedo's brother, told Hernández that he wanted to

introduce Hernández to a friend who aspired to be an appellate

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judge. The Judge became nervous because he was presiding over

Acevedo's case, however, and he did not meet Hernández at the

tournament. A few weeks later, however, on January 21, 2013, Lito

drove the Judge to Hernández's residence to discuss the Judge's

potential appointment to the appellate court. During the meeting,

the Judge told Acevedo that his dream was to retire as an appellate

judge.

In return for these inducements, the Judge provided help

with Acevedo's case. Between January and March 2013, Acevedo

provided the Judge with draft court filings for his review and

advice prior to filing. Further, on March 22, 2013, the Judge met

with Lito to discuss Acevedo's case and provide strategic legal

advice. On March 27, 2013, the Judge acquitted Acevedo of all

charges.

On April 5, 2013, Lito drove the Judge to a seminar.

Later that day, Puerto Rico police officers stopped Lito, still

with the Judge, for suspected driving while under the influence of

alcohol. The Judge intervened on Lito's behalf, but some of the

officers had been involved in the case against Acevedo, and they

identified Lito as Acevedo's associate and raised concerns about

the Judge's association with Lito. This eventually led to a

federal investigation.

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B. Procedural History

On June 3, 2014, federal officers arrested Acevedo in

the Southern District of Florida. On June 6, 2014, a magistrate

judge in the Southern District of Florida ordered that Acevedo be

detained and removed to the District of Puerto Rico. On July 14,

2014, the district court for the district of Puerto Rico conducted

a de novo detention hearing and reinstated the Florida magistrate's

detention order.

On August 14, 2014, Acevedo entered into a plea

agreement. The parties stipulated to a total offense level of

twenty-three, but Acevedo's presentence investigation report (the

"PSR") initially recommended a total offense level of twenty-nine.

Acevedo filed several objections to the PSR. In response to those

objections, the probation officer issued an addendum to the PSR on

November 3, 2015. The addendum included a revised calculation of

the benefits received by the Judge under U.S.S.G. § 2C1.1(b)(2),

which reduced the recommended total offense level from twenty-nine

to twenty-seven.

The district court held a sentencing hearing on

November 6, 2015. Among other things, the district court found

that the annual salary increase that the Judge would have received

if he had been appointed as an appellate judge, totaling $123,200

over eight years, was to be included in calculating the value of

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the bribe under U.S.S.G. § 2C1.1(b)(2). The district court also

found that the conspiracy involved at least five criminally-

responsible participants and was also otherwise-extensive under

U.S.S.G. § 3B1.1(a). Altogether, the district court calculated a

total offense level of twenty-seven and a recommended sentencing

range of seventy to eighty-seven months of imprisonment. After

reviewing the 18 U.S.C. § 3553(a) factors, however, the district

court determined that "the circumstances surrounding this offense

fall completely out of the heartland of the Sentencing Guidelines,"

and so "a variance [was] warranted." Considering "the seriousness

of the offense and all of the factors," the district court

therefore sentenced Acevedo to 108 months of imprisonment, one

year less than the statutory maximum.

Acevedo appealed his sentence.

II. ANALYSIS

Acevedo raises a plethora of purported procedural

sentencing errors made by the district court. We address them

each in turn.

We review the district court's legal interpretation and

application of the Sentencing Guidelines de novo, its findings of

fact -- including calculations of value -- for clear error, and

its judgment calls for abuse of discretion. United States v.

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Houston, 857 F.3d 427, 432 (1st Cir. 2017); see also United States

v. Vázquez-Botet, 532 F.3d 37, 65 (1st Cir. 2008).

A. The District Court Did Not Err in Calculating the Value of
the Benefit to the Judge

Acevedo's first claim of error is that the district court

miscalculated the value of "anything obtained or to be obtained"

by the Judge under U.S.S.G. § 2C1.1(b)(2). U.S.S.G. § 2C1.1(b)(2)2

provides:

If the value of the payment, the benefit received or
to be received in return for the payment, the value
of anything obtained or to be obtained by a public
official or others acting with a public official, or
the loss to the government from the offense, whichever
is greatest, exceeded $5,000, increase by the number
of levels from the table in § 2B1.1 (Theft, Property
Destruction, and Fraud) corresponding to that amount.

Acevedo's plea agreement calculated the "Value of the Payment" as

more than $30,000 but less than $95,000, which corresponded to a

six-level increase.3

But the district court conducted its own calculation.

Because it could not determine the monetary value to Acevedo of an

2 Acevedo's PSR and the district court quoted the November 1,
2013 edition of the United States Sentencing Guidelines Manual in
this instance. We do so as well.
3 As the plea agreement indicates only a six-level increase in
light of U.S.S.G § 2C1.1(b)(2), the plea agreement presumably
contemplated that the "value of the payment" did not exceed
$70,000. See U.S.S.G § 2C1.1(b)(2) (referencing the table at
§ 2B1.1).

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acquittal, or the loss to the government, the district court

calculated the value of what was "to be obtained by [the Judge]"

-- which it found was an appellate judgeship -- pursuant to his

agreement to provide Acevedo favorable treatment. It determined

that the Judge would have received an extra $15,400 per year in

annual salary if he had been appointed to the appellate court, and

that he would have received that additional salary from 2013 --

the year the Judge acquitted Acevedo -- until 2021, when the Judge

would reach the mandatory retirement age of seventy. This

increased salary over a period of eight years resulted in a

calculated expected benefit of $123,200, resulting in an eight-

level increase in Acevedo's total offense level.

Acevedo first attacks the district court's finding by

arguing that, although the Judge may have expected an appellate

judgeship, that expectation was not reasonable. The district

court found otherwise, and we see no clear error. The appellate

judgeship was a centerpiece of the bribe -- the Judge stated that

he would not otherwise participate in the conspiracy, "not even

for $100,000." In addition, all parties took steps to facilitate

the Judge's appointment. Acevedo coordinated two meetings between

the Judge and Hernández, a key fundraiser for the then governor-

elect. The Judge took steps to attend the first meeting, at a

golf tournament, and he subsequently met Hernández at Hernández's

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home. It is true that there is no evidence that the Judge applied

for an appellate judgeship, but there is substantial

circumstantial evidence of the Judge's expectations. The district

court therefore did not clearly err in finding that the Judge

reasonably expected that Acevedo would procure an appellate

judgeship for him.

Acevedo also argues that all the Judge could have

reasonably expected to obtain was assistance in acquiring an

appellate judgeship, not the judgeship itself. He therefore

reasons that the Government was required to prove the value of the

assistance, which was necessarily less than the full value of the

appellate judgeship, and that it did not do so. For support,

Acevedo cites United States v. Fitzhugh, 78 F.3d 1326 (8th Cir.

1996) and United States v. White Eagle, 721 F.3d 1108 (9th Cir.

2013), in which those circuits held that, where a loan is obtained

by a bribe, "its value will typically be the difference between

the actual cost of the loan, and the cost of the same loan at fair

market terms and conditions." White Eagle, 721 F.3d at 1122

(quoting Fitzhugh, 78 F.3d at 1331). Those cases are inapplicable.

A loan requires repayment, and so its face value is not a good

indicator of the benefit conferred. Acevedo's offer to get the

Judge appointed to an appellate judgeship did not have this type

of offset. As stated above, the Judge reasonably believed that

-9-
Acevedo could get him appointed. Thus, the record supports the

conclusion that what the Judge intended to obtain was an appellate

judgeship. While the defendant argues he merely offered

"assistance," that argument does not suffice to show that the

district court erred in concluding that the Judge intended to

obtain something more.

The district court therefore did not err in applying an

eight-level increase to Acevedo's offense level.

B. The District Court Did Not Err By Finding That the Criminal
Activity Involved Five or More Participants

The district court also increased Acevedo's total

offense level by four levels because it found he "was an organizer

or leader of a criminal activity that involved five or more

participants or was otherwise extensive." U.S.S.G. § 3B1.1(a).

We review the district court's determination that an individual

was a participant for clear error. See United States v. George,

841 F.3d 55, 66, 69-70 (1st Cir. 2016).

A participant is "a person who is criminally responsible

for the commission of the offense, but need not have been

convicted." U.S.S.G. § 3B1.1 cmt. n.1. To be considered a

participant, it is only necessary that an individual gives knowing

aid in some aspect of the criminal activity. George, 841 F.3d at

70 (citing United States v. Starks, 815 F.3d 438, 441 (8th Cir.

2016)); United States v. McCormick, 773 F.3d 357, 360 (1st Cir.

-10-
2014). Similarly, an individual can be considered a participant

when his or her acts "give rise to an inference of complicity

sufficient to ground a finding that [the individual] was a

participant in the criminal activities." George, 841 F.3d at 70.

Acevedo concedes that he and three others were

criminally responsible participants, but he contends that the

district court erred in finding that Bebé, Saúl, Miguel, and

Hernández were also criminal participants. We find that there is

sufficient evidence to establish that Saúl was a participant, and

thus need not address whether any of the others were participants.

Other circuits have affirmed a finding that an

individual was a criminal participant under circumstances similar

to Saúl's. In United States v. Saulter, an individual called

"Judo" played a small role in a larger drug transaction by helping

a criminal informant locate the defendant to conduct the

transaction. 60 F.3d 270, 280-81 (7th Cir. 1995). There was also

disputed evidence, credited by the district court, that Judo handed

the informant cocaine. Id. at 281. The Seventh Circuit held that

"Judo's assistance in locating [the defendant] to perform an act

in furtherance of the conspiracy" combined with handling cocaine

established Judo as a criminally responsible participant for the

purposes of § 3B1.1(a). Id.

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 In a second case, the defendant paid false invoices to

a car dealer who leased cars to the New York City Transit Police

Benevolent Association (the "TPBA"), which enabled "selected TPBA

members . . . to buy cars at discounted prices from the auto dealer

as a direct result of [the defendant's] larceny from the TPBA."

United States v. Zichettello, 208 F.3d 72, 108 (2d Cir. 2000).

The defendant argued that none of the TPBA members were criminal

participants. Id. at 108. The Second Circuit ruled that "the

district court had an evidentiary basis to conclude that at least

one of these individuals was criminally involved in [the

defendant's] scheme." Id. It reasoned that the TPBA Recording

Secretary, who purchased a car from the dealership at an 80%

discount, "had to have known from the size of the discount that

some illegitimate quid pro quo involving the TPBA Treasurer was

the catalyst for the transaction." Id. That knowledge, and the

benefits the TPBA Recording Secretary received, were sufficient

under the clear error standard "to render the TPBA Recording

Secretary a participant and to justify the enhancement." Id.

Acevedo acknowledges that Saúl set up the initial

meeting between Lito and the Judge. Saúl then attended meetings

for nearly six months where Lito would pay for outings at

restaurants and bars with money provided by Acevedo. The Judge

requested that Acevedo secure employment at the Treasury

-12-
Department for Saúl, and Saúl gave the Judge his résumé, which the

Judge passed on to Lito. When Acevedo was slow in obtaining the

position for Saúl, Saúl confronted Acevedo at Acevedo's office,

where Acevedo requested more time. While Saúl waited on his job,

Lito employed him, and Saúl "was given money to repair his vehicle

and cash whenever [he] needed."

Given these facts, the district court did not clearly

err by finding that Saúl facilitated, knew of, and benefitted from

the criminal activity. Saúl initiated conversations between Lito

and the Judge, thus providing "assistance in locating [a co-

conspirator] to perform an act in furtherance of the conspiracy".

Saulter, 60 F.3d at 281. While Acevedo declares that Saúl did not

know of the conspiracy and that he was not present when discussions

were held, his actions, including confronting Acevedo about

obtaining a government job, show that Saúl "had to have known . . .

that some illegitimate quid pro quo involving [the defendant] was

the catalyst" for the benefits he received or was promised. See

Zichettello, 208 F.3d at 108. And, as previously described, Saúl

was promised a job, given money, and enjoyed outings paid for with

money provided by Acevedo as part of the criminal activity. These

facts provide sufficient evidence that Saúl was a criminally

responsible participant under U.S.S.G. § 3B1.1(a).

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 Because adding Saúl makes five participants, we need not

examine the other three individuals the district court identified,

nor do we need to reach the district court's alternative holding

that the criminal activity was "otherwise extensive."

C. The District Court Followed the Preferred Methodology When It
Determined Acevedo's Sentence

Acevedo contends that his sentence was procedurally

unreasonable because the district court "reversed the required

sequence" of analytical steps when it determined his sentence.

Claims of procedural unreasonableness in sentencing are typically

reviewed for abuse of discretion. United States v. Dávila-

González, 595 F.3d 42, 47 (1st Cir. 2010).

We reaffirmed the recommended method for determining a

sentence in Dávila-González:

[A] sentencing court ordinarily should begin by
calculating the applicable guideline sentencing
range; then determine whether or not any departures
are in order; then mull the factors delineated in 18
U.S.C. § 3553(a) as well as any other relevant
considerations; and, finally, determine what
sentence, whether within, above, or below the
guideline sentencing range, appears appropriate.

Id. at 46 (quoting United States v. Pelletier, 469 F.3d 194, 203

(1st Cir. 2006)).

Acevedo protests that the district court did not follow

this method, but instead began by determining that the maximum

sentence was necessary. To support his argument, Acevedo points

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to a single statement by the district court at the sentencing

hearing:

Every single time that I looked at this case, every
time I evaluated the evidence I was convinced that
one, the guidelines would not be representative and
no other sentence than the maximum sentence was
warranted in your case. The maximum sentence in your
case is that of ten years. But actually I am aware
that I have to consider some other factors . . . .

Acevedo disregards all of the deliberation that preceded

this excerpt, however. In fact, the district court first

calculated Acevedo's recommended sentencing range. It then

considered possible grounds for departure, and weighed relevant

§ 3553(a) factors. As part of its § 3553(a) conduct, the district

court considered some of Acevedo's previous conduct, relevant to,

for example, his "history and characteristics." See 18 U.S.C.

§ 3553(a). Finally, it imposed its sentence, during which it made

the statement plucked out by Acevedo. That is the recommended

procedure, and so the district court's methodology was not

erroneous.

D. The District Court Did Not Abuse Its Discretion By Considering
Evidence of Acevedo's Prior Acts

Acevedo contends that the district court used unreliable

evidence to vary his sentence. In particular, he challenges the

court's findings regarding an incident at the Mesa Criolla

Restaurant (the "Mesa Criolla Incident"), including the district

court's consideration of a letter sent by an off-duty police

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officer who was present at the incident,4 and a second incident in

which Acevedo threatened his cousin, Rafael Lorenzo-López

("Rafi"). We "examin[e] the district court's findings of fact for

clear error."5 United States v. Carpenter, 781 F.3d 599, 608 (1st

Cir. 2015).

1. The Mesa Criolla Incident

Paragraph 129 of the PSR described the Mesa Criolla

Incident:

According to the investigative agents, in the event
known as the Mesa Criolla Incident, on August 23,
2010, at 1:17 am at [M]esa Criolla Restaurant in Moca,
PR, video documentation displays the defendant
brandishing a firearm to Orlando Soto, owner of the
restaurant, and Steven P[é]rez-H[é]rnandez, employee,
after a verbal altercation. A day after the incident,
Orlando Soto alleged that two individuals, Eliezer
Vega Mercado and Elliot Medina Pellot, entered his
business and assaulted him on behalf of the defendant.

At Acevedo's pretrial detention hearing, the Assistant

United States Attorney (the "AUSA") proffered evidence about the

4 Although the district court discussed the letter, it also stated
that, even without the letter, "the full record of the evidence at
trial depicting [Acevedo's] character . . . shows [the] same
characteristics and pattern of conduct." Thus, the district court
made clear that it would have reached the same sentence without
the letter. Any error in admitting the letter would therefore be
harmless, so we do not delve into the letter's reliability. See
Fed. R. Crim. P. 52(a).
5 The Government argues that plain error review applies because
Acevedo did not argue below that the evidence was unreliable.
Because the result would be the same under either clear error or
plain error review, we do not address this contention.

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Mesa Criolla Incident. The proffer included that Acevedo got into

a fight with an off-duty police officer at the Mesa Criolla

Restaurant. After the officer left, the restaurant's owner asked

Acevedo to leave. Acevedo then brandished a gun and threatened

to kill the owner and an employee. An employee disarmed Acevedo,

but Acevedo later returned and demanded the restaurant's

surveillance footage. When the owner refused, Acevedo threatened

him and left. Three men then came to the restaurant, asked the

owner "whether he was the one that had the problem with [Acevedo],"

then beat the owner. The proffer was supported by photographs of

the owner's face and videotape of the beating.

Two men pled guilty to assault related to this incident.

In addition, Acevedo was charged in connection with the Mesa

Criolla Incident, but all charges were dismissed.

2. The Altercation with Rafi

Paragraph 130 of the PSR stated that Acevedo "was

involved in an altercation with [his cousin Rafi], in which

[Acevedo] brandished a firearm. Subsequently, [Acevedo] made life

threats via text messages against his cousin, who ultimately

abandoned the jurisdiction for fear of death."

Rafi also testified about this incident at the Judge's

trial. Relying on Rafi's testimony, the district court found that

Acevedo "pulled a gun and pointed it at [Rafi] while threatening

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to kill him." Rafi subsequently filed a complaint with the state

police, and Acevedo's relative, a police lieutenant, tried to

convince Rafi not to pursue the complaint. That night, Acevedo

"began to send threatening [text] messages" to Rafi, including

threatening to take Rafi's son. Eventually, Acevedo purchased a

plane ticket for Rafi to leave Puerto Rico, and the complaint was

dismissed because Rafi was not present to press charges.

3. The Reliability of the Evidence

The district court relied on these two incidents as

evidence of Acevedo's history of violence, threats, and efforts to

silence witnesses. Acevedo argues that the "negative conclusions

[the district court] drew" from these incidents were erroneous

because the evidence for these incidents was unreliable. The

evidence for the Mesa Criolla Incident "rested largely on out-of-

court statements never subject to adversarial testing."

Similarly, evidence from the detention hearing concerning

Acevedo's altercation with Rafi was "not subject to adversarial

testing," and Rafi's testimony at the Judge's trial about the

incident was unreliable because Rafi was cross-examined "with the

express purpose of casting Acevedo in the worst light possible."

As an initial matter, Acevedo did not object to the

summaries of these two incidents in the PSR, so the district court

could treat those facts "as true for sentencing purposes." United

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States v. Ocasio-Cancel, 727 F.3d 85, 91-92 (1st Cir. 2013)

(upholding a district court's findings where "the defendant did

not object to any aspect of the PSI Report's discussion of local

charges against him that were ultimately dismissed"). The

district court did, however, find additional facts related to those

incidents, so we will address Acevedo's arguments.

Much of the evidence presented at Acevedo's sentencing

hearing was the hearsay proffer of the AUSA. "[T]he sentencing

court has broad discretion to accept hearsay evidence at sentencing

so long as the court supportably concludes that the information

has sufficient indicia of trustworthiness to warrant a finding of

probable accuracy." United States v. Rodríguez, 336 F.3d 67, 71

(1st Cir. 2003). Indicia of trustworthiness can include

corroboration by other evidence. United States v. Ramírez-Negrón,

751 F.3d 42, 52 (1st Cir. 2014) ("[T]he hearsay testimony was

corroborated by . . . [the agent's] personal knowledge and

observation of the videos."); United States v. Mara, 523 F.3d 1036,

1039 (9th Cir. 2008) ("[T]he statements contained in the [police]

report were sufficiently corroborated so as to provide the

requisite indicia of reliability."). We have similarly allowed

reliance on an AUSA's proffer that, "though uncorroborated, was

thorough and replete with details." Rodríguez, 336 F.3d at 71.

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 Here, corroborating evidence presented at the detention

hearing concerning the two incidents included text messages, live

testimony, photographs, video, and court records. It is true that

much of the evidence was not subject to cross-examination, but

"the sentencing court may rely upon 'virtually any dependable

information,' including statements which have not been subjected

to the crucible of cross-examination." United States v. Doe, 741

F.3d 217, 236 (1st Cir. 2013) (quoting United States v. Cintrón-

Echautegui, 604 F.3d 1, 6 (1st Cir. 2010)). "Even conduct that

did not lead to a conviction may be considered." United States

v. Hinkley, 803 F.3d 85, 92-93 (1st Cir. 2015).

Acevedo's contention that the district court erred by

relying on Rafi's testimony from the Judge's trial fails for the

same reason. Although Rafi's testimony may not have been subject

to the type of cross-examination that Acevedo would have preferred,

that is not fatal in and of itself. See Doe, 741 F.3d at 236. In

addition, Rafi's testimony about his altercation with Acevedo was

consistent with the AUSA's proffer at the detention hearing, and

so corroborated by the same evidence. Finally, "the sentencing

judge was also the presiding judge during [all of] the prior

proceedings. Thus, the sentencing judge had the opportunity to

observe the testimony and cross-examination of the various

witnesses and could thereby make an independent assessment as to

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their credibility." United States v. Zuleta-Álvarez, 922 F.2d 33,

37 (1st Cir. 1990).

The district court therefore did not clearly err in

finding that Acevedo was involved in these two incidents and that

they supported an upwardly variant sentence.

E. The District Court Was Not Required to Inform Acevedo That It
Intended to Rely on Evidence from Acevedo's Detention Hearing
and Public Corruption Statistics

A sentencing court "must allow the parties' attorneys to

comment on the probation officer's determinations and other

matters relating to an appropriate sentence." Fed. R. Crim. P.

32(i)(1)(C). "[A] defendant's right to respond to the information

offered against him at sentencing means very little without a right

to notice of that information." United States v. Millán-Isaac,

749 F.3d 57, 70 (1st Cir. 2014); see also United States v. Berzon,

941 F.2d 8, 18 (1st Cir. 1991) ("Th[e] right to be heard has little

reality or worth unless one is informed." (quoting Burns v. United

States, 501 U.S. 129, 136 (1991))).

Citing Millán-Isaac and Berzon, Acevedo first contends

that the district court was required to give him notice, before

his sentencing hearing, that it intended to rely on evidence

presented at Acevedo's detention hearing, particularly with

regards to the Mesa Criolla Incident. In Millán-Isaac, we held

that it was plain error for the district court to consider either

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victim-impact information presented by the government for the

first time at the defendant's hearing or additional facts about

the defendant presented at a co-defendant's separate sentencing

hearing. 749 F.3d at 73. Similarly, in Berzon, we rejected the

government's argument that the defendant had "constructive notice"

that the district court might consider testimony from a co-

defendant's prior sentencing hearing. 941 F.2d at 17-21.

Acevedo's argument, however, hinges on his assertion

that he had no notice that the district court might rely on

information from the detention hearing. A sentencing court has a

"wide scope" of discretion to consider evidence, including

testimony from outside the sentencing hearing if it "timely

advise[s the defendant] in advance of sentencing that it heard or

read, and was taking into account, that testimony." Id. at 21.

Here, the PSR included a summary of the Mesa Criolla Incident, and

it specifically referenced evidence from Acevedo's detention

hearing when discussing his altercation with Rafi. In Berzon, we

"agree[d] entirely" with two cases from other circuits that allowed

sentencing courts to consider evidence presented in related trials

because those defendants' pre-sentence reports contained those

same facts, thus putting the defendants on notice that those facts

might be used. 941 F.2d at 19 (citing United States v. Notrangelo,

909 F.2d 363 (9th Cir. 1990) and United States v. Romano, 825 F.2d

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725 (2d Cir. 1987)). In addition, the detention hearing was part

of the record. Thus, although the PSR did not contain all of the

specific facts discussed by the district court, its summary of the

two incidents, its mention of the detention hearing, and the fact

that the detention hearing was part of the record gave Acevedo all

the notice he needed that the district court might rely on evidence

presented at his detention hearing.

Acevedo also argues that the district court did not give

him prior notice of its intent to rely on public corruption

statistics. Our holding in United States v. Curran governs

sentencing courts' use of documents to which Federal Rule of

Criminal Procedure 32 does not apply -- that is, documents outside

of the PSR. 926 F.2d 59, 63 (1st Cir. 1991). There, we held that

sentencing courts considering documents of that sort "should

either make clear that the document is not being used for its

factual content, or should disclose to the defendant as much as

was relied upon, in a timely manner, so as to afford the defendant

a fair opportunity to examine and challenge it." Id. at 63. Here,

the district court did neither.

However, Acevedo has not shown that any harm or prejudice

resulted from the court's use without notice of these statistics

at sentencing. Nor has he otherwise suggested that the statistics

are in any way problematic. He does argue that the statistics

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"pertain to public corruption in general," rather than judicial

corruption specifically. Yet, this argument is meritless, as his

offenses of conviction are not specific to judicial corruption,

and he fails to explain why considerations of public corruption

generally are inapplicable. Therefore, while the district court

should have provided notice to Acevedo that it intended to use the

statistics in question, its failure to do so amounts only to

harmless error. See United States v. Warr, 530 F.3d 1152 (9th

Cir. 2008) (finding harmless error when the district court relied

on a recidivism study without providing prior notice to the

defendant, but only cited that study for the "common sense

proposition that younger offenders are likely to recidivate").

F. The District Court Imposed a Variance, Not a Departure

Acevedo's final claims of error rest on his contention

that the district court imposed a "departure in the guise of a

variance." Building on this assertion, he argues that the

district court (1) relied on improper grounds for imposing the

departure, and (2) did not allow his counsel an adequate

opportunity to argue why those grounds were improper. We can cut

these arguments off at the root. Although the district court did

discuss a departure under U.S.S.G. § 5K2.7, it specifically stated

that it "did not apply the departure" but instead found that "a

variance [was] applicable." In doing so it considered numerous

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factors under 18 U.S.C. § 3553(a), "the hallmark of a variance."

United States v. Santini-Santiago, 846 F.3d 487, 491 (1st Cir.

2017). Some of the factors it considered might also relate to a

departure, but a sentencing court may "echo" a departure

consideration as one factor in its analysis, while still imposing

a variance. United States v. Aponte-Vellón, 754 F.3d 89, 93 (1st

Cir. 2014).

For the same reason, Acevedo's assertion that he was not

allowed a proper opportunity to object to the imposition of a

departure, even if it had merit, would not require reversal. The

district court imposed a variance, not a departure, and so any

error would be harmless. See Fed. R. Crim. P. 52(a).

III. CONCLUSION

Considering the serious and corrosive nature of

Acevedo's crimes, it would have been more than appropriate for the

district court to have imposed an even higher sentence. For the

reasons stated, we affirm Acevedo's sentence.

Affirmed.

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