United States Court of Appeals
For the First Circuit
No. 18-1107
UNITED STATES OF AMERICA,
Appellee,
v.
ADRIÁN VÁZQUEZ-MÉNDEZ,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Juan M. Pérez-Giménez, U.S. District Judge]
Before
Howard, Chief Judge
Boudin and Lynch, Circuit Judges.
Eric Alexander Vos, Federal Public Defender, District of
Puerto Rico, Vivianne M. Marrero, Assistant Federal Public
Defender, Supervisor, Appeals Section, and Ivan Santos-Castaldo,
Research and Writing Specialist, on brief for appellant.
Rosa Emilia Rodríguez-Vélez, United States Attorney, Mariana
E. Bauzá-Almonte, Assistant United States Attorney, Chief,
Appellate Division, and Julia M. Meconiates, Assistant United
States Attorney, on brief for appellee.
February 8, 2019
BOUDIN, Circuit Judge. Adrián Vázquez-Méndez ("Vázquez")
pled guilty in federal district court in Puerto Rico in 2001 to
one count of conspiracy to distribute cocaine, 21 U.S.C. § 846,
and was sentenced to 168 months in prison followed by five years
of supervised release. After serving more than eleven years in
prison, Vázquez began supervised release on December 28, 2012.
Vázquez's period of supervised release--accompanied by
the common requirements that he refrain from unlawfully using
controlled substances, report any changes in address, and
regularly check in with his probation officer--passed without
known incident until nearly the end. But in 2017, the probation
officer reported several violations, including three positive drug
tests for marijuana and a failure to inform his probation officer
that he was living at a new location.
Vázquez was also arrested on July 25, 2017, after his
girlfriend called the police to report a domestic dispute. Police
also questioned him about a domestic-violence incident on August
30, 2017. Neither incident resulted in criminal charges but a
restraining order was placed against him after the second incident,
pending a later hearing. Vázquez also failed to timely report the
incidents to his probation officer as required by his supervised
release conditions.
He also missed a scheduled drug-treatment program and a
drug-screening appointment. In each instance Vázquez claimed he
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was at the hospital, first to attend to a wrist injury and later
because his girlfriend was experiencing complications with her
pregnancy; in at least one case the hospital records showed that
his time there did not conflict with his scheduled treatment
appointment.
Eventually the government filed a motion to revoke
Vázquez's supervised release. Vázquez admitted that he had
violated the terms of his supervised release and declined an
evidentiary hearing. The parties jointly recommended a sentence
of time served (forty-two days) with six months of supervised
release, including three months of home detention with electronic
monitoring.
The applicable guidelines range was three to nine
months, U.S.S.G. § 7B1.4(a), and the statutory maximum for a
revocation of supervised release arising out of a conviction for
a Class A felony--here, Vázquez's original conviction for
conspiracy to distribute cocaine--was five years, 18 U.S.C.
§ 3583(e)(3).
The district judge imposed an upward variance,
sentencing Vázquez to two years' imprisonment plus two years of
supervised release. The district court described the various
violations, set forth above, and concluded:
Based on the nature and circumstances of the violations
and characteristics of Mr. Vazquez, the Court will
impose a sentence that reflects the seriousness of the
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violations, promote respect for the law and compliance
with the Court's orders, provide just punishment,
adequate deterrence, and protect our community from
further non-compliance behavior by Mr. Vazquez-Mendez.
This may assist Mr. Vazquez-Mendez to work on his
rehabilitation process and his reintegration into the
community. Mr. Vazquez will be placed in a controlled
environment where he will have the space to think,
reflect and establish new goals for himself, to continue
working on his rehabilitation plan once he is released
from prison.
On the spot Vázquez's counsel objected to the sentence
as substantively unreasonable and further objected to the judge's
mention of rehabilitation, arguing that lengthening a criminal
sentence to promote rehabilitation was impermissible. The court
rejected the objection, adding that "two times he was very
aggressive with his consensual partner to the point where she had
to submit a complaint against him."
On appeal Vázquez argues that the sentence was
unreasonable and specifically that the judge erred in citing
rehabilitation needs and unproven domestic-violence allegations,
and that the sentence was substantively unreasonable. Whether all
three objections were fully preserved could be debated, but the
two specific claimed errors are patent and here presumptively
prejudicial.
Under the Sentencing Reform Act a court may not impose
or lengthen a prison sentence in order to promote a defendant's
rehabilitation or to enable him to complete in prison a
rehabilitative program. Tapia v. United States, 564 U.S. 319, 335
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(2011). The rule applies to resentencing after a revocation of
supervised release. United States v. Molignaro, 649 F.3d 1, 5
(1st Cir. 2011).
Cases subsequent to Tapia hold that where a general
desire to rehabilitate the defendant is thrown into a blender with
myriad other factors at sentencing, there is not necessarily
reversible error. United States v. Del Valle-Rodríguez, 761 F.3d
171, 174-75 (1st Cir. 2014). Reversal follows only where "the
record indicates that rehabilitative concerns were the driving
force behind, or a dominant factor in, the length of a sentence."
Id. at 175.
But here the district court concluded its sentence by
saying that it "may assist Mr. Vazquez-Mendez to work on his
rehabilitation process and his reintegration into the community,"
and that time in prison would give him "the space to think, reflect
and establish new goals for himself, to continue working on his
rehabilitation plan once he is released from prison." When defense
counsel objected, the judge ended discussion: "I think that the
best way to try to straighten him up again is by imposing two years
of imprisonment."
The district court's statements show that it did or
likely did rely on rehabilitation in fixing the sentence in a way
that is at odds with the statute as this circuit has read Tapia.
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The defense objection removes any need to consider whether the
judge's statements alone might amount to plain error.
Whether the district court relied on the unproven
domestic-violence allegations as a basis for its upward variant
sentence is doubtful, for the reference came after the sentence
had been set, but on remand the district will know that charges
without proof are not to be considered. United States v. Marrero-
Pérez, No. 17-136, 2019 WL 324988 (1st Cir. Jan. 25, 2019).
The district court was well within its authority to
consider an upward adjustment to the guidelines sentence.
Vázquez's transgressions were multiple and that they happened near
the end of the supervised release term is hardly reassuring. The
government's agreement to a time-served sentence may suggest
merely that new felonies are properly its main priority.
This circuit once regularly remanded cases like this one
to a different judge, but this occurs now only in very unusual
cases, United States v. Bryant, 643 F.3d 28, 35 (1st Cir. 2011),
and rightly so, for a new judge every time is wasteful; and the
conduct of judges in remanded matters bears out the faith that
citizens still retain in their judiciary.
The sentence is vacated, and the matter remanded for
resentencing in accordance with this decision.
It is so ordered.
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