United States Court of Appeals
For the First Circuit
No. 19-1815
UNITED STATES OF AMERICA,
Appellee,
v.
ALEJANDRO CARRIÓN-MELÉNDEZ,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Jay A. García-Gregory, U.S. District Judge]
Before
Barron, Selya, and Lipez, Circuit Judges.
Samuel P. Carrión, Assistant Federal Public Defender, with
whom Eric Alexander Vos, Federal Public Defender, Franco L. Pérez-
Redondo, Assistant Federal Public Defender, Supervisor, Appeals
Division, and Alejandra Bird López, Research & Writing Specialist,
were on brief, for appellant.
Gregory B. Conner, Assistant United States Attorney, with
whom W. Stephen Muldrow, United States Attorney, Mariana E. Bauzá-
Almonte, Assistant United States Attorney, Chief, Appellate
Division, and Julia M. Meconiates, Assistant United States
Attorney, were on brief, for appellee.
February 22, 2022
BARRON, Circuit Judge. Alejandro Carrión-Meléndez
("Carrión") challenges his sentence of ninety months of
imprisonment and three years of supervised release for his
conviction on a firearms offense charge under 18 U.S.C. § 922(g).
He contends that the sentence cannot stand because it was
predicated on the application of a four-level enhancement under
the United States Sentencing Guidelines ("U.S.S.G.") that the
record does not support. We vacate the sentence and remand for
resentencing.
I.
We draw the following facts from the portions of the
presentence report to which neither party objected. See United
States v. Rogers, 17 F.4th 229, 232 (1st Cir. 2021) (citing United
States v. Benoit, 975 F.3d 20, 21 (1st Cir. 2020)). A confidential
informant told the Puerto Rico Police Department ("PRPD") on May
3, 2018, that a probationer was illegally armed. The informant
also told the PRPD at that time that the probationer visited a
certain gas station in Manatí, Puerto Rico every day and that the
probationer had been seen at the Villa Evangelina Public Housing
Project ("PHP") in the same city. The informant also provided the
police with the license plate number, make, model, and color of
the car that the probationer drove.
The PRPD subsequently both discovered that the car
described by the informant had been reported stolen six months
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prior and corroborated that the driver of the car, Carrión, was on
probation for a state narcotics conviction. Then, on May 16, 2018,
PRPD officers observed Carrión, a lifelong resident of Villa
Evangelina, driving the car that the informant had described at
the gas station that the informant had mentioned.
The officers observed Carrión exit the car carrying a
sports bag. They also observed him enter the gas station, followed
by another man who had arrived ten minutes prior and who had waited
outside the gas station with a fanny pack in hand. The officers
had previously observed that man place what appeared to be a
firearm in the fanny pack. The officers immediately arrested both
that man and Carrión and, incident to Carrión's arrest, conducted
a search of the sports bag that Carrión had been carrying.
The officers seized from the sports bag a Glock pistol
that was fully loaded with eight rounds of ammunition, four small
plastic containers holding marijuana, and two magazines fully
charged with twenty-two rounds each. The officers also seized
from Carrión's pants pockets $2,177 in cash. Moreover, the
officers seized from inside the car that Carrión was driving a
revolver, a fully loaded pistol, and six additional magazines,
five of which were fully loaded. Carrión later admitted to law
enforcement that he owned the three firearms and that he was under
local probation.
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The same day, Carrión was charged in a criminal complaint
with one count of possession of a firearm by a prohibited person
in violation of 18 U.S.C. § 922(g)(1). A week later, a grand jury
indicted him on that charge. The indictment also contained a
firearms forfeiture allegation. Carrión pleaded guilty to the §
922(g)(1) count on December 18, 2018.
The U.S. Probation Officer filed a Presentence
Investigation Report ("PSR") on March 11, 2019. The parties
subsequently filed sentencing memoranda. The government's
memorandum objected to the PSR because it "fail[ed] to take into
account Defendant's possession of extended magazines, as well as
Defendant's possession of the firearms in connection with a felony
offense." The government contended that, as a result, Carrión's
"Base Offense Level" ("BOL") should be calculated as 22 instead of
20, and that "an additional 4 points should be added for possessing
the firearms in connection with drug trafficking -- a felony
offense." After other adjustments already included in the PSR,
that would bring Carrión's "Total Offense Level" ("TOL") to 27.
The government's memorandum also argued for a sentence
at the high end of the guidelines range. The government relied on
the PSR to argue that Carrión "was working as an armed enforcer
for the drug trade organization at the Villa Evangelina PHP in
Manatí, Puerto Rico" while he was "on probation" for previous drug
trafficking offenses. The government included with its memorandum
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nearly fifty pictures that it alleged showed Carrión "packaging
mari[j]uana, and what appears to be cocaine, for distribution,"
and his "disturbing penchant for high-capacity firearms and
drugs."
The only context given for the pictures was that they
were "images extracted from . . . cellphones" that Carrión had in
his possession when he was arrested. The government argued that
the pictures, together with the other evidence seized left "no
doubt that Defendant is engaged in drug trafficking."
Carrión also objected to the PSR. As relevant here, he
asked for "copies of supporting documents" regarding the "armed
enforcer" allegations. His counsel stated that he "believe[d]
there was no finding of fact on behalf of the local judge as to a
revocation based on the events mentioned by [the U.S. Probation
Officer] in her motion rather than a revocation for the new federal
case." The U.S. Probation Officer claimed that the "information
regarding the defendant's revocation of probation at the local
level was verified with the local probation officer who attended
said final revocation hearing on December 20, 2018."
Thereafter, on May 3, 2019, the U.S. Probation Officer
disclosed an amended PSR and filed an addendum to the PSR. The
amended PSR included the heightened BOL and the four-level
enhancement pursuant to U.S.S.G. § 2K2.1(b)(6)(B) based on
Carrión's possession of firearms "in connection with drug
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trafficking, a felony offense." Carrión's recalculated TOL was,
as the government requested, placed at 27. The amended PSR
restated the allegations regarding Carrión's work as an "armed
enforcer for [a] drug trade organization." It stated that state
law enforcement officers had reported this activity, and that
Carrión's "P.R. Probation Officer (PRPO) . . . confirmed the
allegations with neighbors from said PHP." It further stated that
Carrión's probation on prior drug trafficking charges had been
revoked on December 20, 2018, and that he had been sentenced to a
term of imprisonment of five years, after "PRPO submitted a motion
notifying violation of conditions of probation."
Based on the recalculated TOL and Carrión's uncontested
criminal history category of III, the PSR calculated the guideline
imprisonment range as 87 to 108 months. Without the enhancement,
the TOL would have been 23 and the guideline imprisonment range
would have been 57 to 71 months. See U.S.S.G. ch. 5, pt. A.
Carrión filed four objections to the amended PSR. Two
are relevant to this appeal.
The first concerns Carrión's objection to the inclusion
in the PSR of claims regarding his status as an "armed enforcer
for [a] drug trade organization" and the revocation of his
probation. He argued that "there is no basis in fact to determine
that the facts alleged by the PRPO occurred nor that the reason
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for the revocation was anything other than the conviction [in] the
present case."
Carrión also objected to the inclusion of the four-level
enhancement. He did so on the ground that there was "no evidence
that he 'used or possessed any firearm or ammunition in connection
with any other felony offense.'"
The District Court issued a minute order overruling
Carrión's objections. It explained that "the record contains
sufficient supporting evidence justifying the inclusion of [the
armed enforcer] language in the PSR," and that "the government has
shown, by a preponderance of the evidence, that U.S.S.G.
§ 2K2.1(b)(6)([B]) is applicable."
At Carrión's sentencing hearing, he reiterated the
objections that he had made to the amended PSR. In response to
his arguments, the District Court expressed "doubts concerning the
four-point enhancement." The government argued that the
photographs that it had submitted with its sentencing memorandum
supported application of the enhancement. Carrión then objected
to the consideration of the photographs the government had
submitted because they were not "presented correctly in a
sufficient manner for the Court to determine the reliability" of
them. The District Court again overruled Carrión's objection to
the enhancement.
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The government thereafter "request[ed] a sentence at the
high end of the guideline range." In doing so, the government, in
addition to restating the allegations already discussed, played
for the District Court a video that it said was taken on May 11,
2018, at the Villa Evangelina PHP. The government argued that the
video showed that Carrión "associates with individuals carrying
the same type of weaponry that were [sic] found on his phone in"
that housing project.
The defense objected to this video and the government's
narrative description of what it contained. Before the video was
played, the District Court responded to Carrión's objection by
saying "I'm not going to take [the video] into consideration," yet
it later stated that it would allow the government to show the
video but "I may not take it into consideration" (emphasis added).
The District Court did not mention the video again after it was
played.
The District Court, without substantial explanation of
its reasoning, applied the four-level enhancement for possessing
firearms in connection with drug trafficking and imposed a sentence
of ninety months of imprisonment and three years of supervised
release.1 In imposing its sentence, it stated that Carrión
The District Court applied the four-level enhancement
1
based on Carrión's purported drug trafficking, and not based on
his possession of marijuana. The government does not contend on
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"decided to continue working as an armed enforcer for the drug
trafficking organization at the Villa Evangelina PHP."
Carrión timely appealed.
II.
Carrión argues that the District Court erred in applying
the enhancement in question because it improperly relied on the
allegation in the PSR that Carrión "was working as an armed
enforcer for the drug trade organization at the Villa Evangelina
PHP," which the PSR claimed had been confirmed by Carrión's PRPO
"with neighbors from said PHP." The District Court's reliance on
the allegation was improper, Carrión argues, because it was
unsupported by a preponderance of the evidence. He contends in
that regard that the allegation was conclusory, unsworn, and
multiple-level hearsay from an unidentified source that was
lacking in any details to support it. Cf. United States v. Torres-
Landrúa, 783 F.3d 58, 64 (1st Cir. 2015) (holding that a district
court "did not abuse its discretion in concluding that" statements
that were "basically rumors . . . were unreliable and excluding
them"). In reviewing this properly preserved challenge to the
procedural reasonableness of the sentence, "we afford de novo
review to the sentencing court's interpretation and application of
the sentencing guidelines, assay the court's factfinding for clear
appeal that the enhancement is supportable on the ground of mere
possession.
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error, and evaluate its judgment calls for abuse of discretion."
United States v. Stinson, 978 F.3d 824, 826 (1st Cir. 2020)
(quoting United States v. Ruiz-Huertas, 792 F.3d 223, 226 (1st
Cir. 2015)).
We recognize that a PSR generally "bears sufficient
indicia of reliability to permit the district court to rely on it
at sentencing." United States v. Miranda-Díaz, 942 F.3d 33, 40
(1st Cir. 2019) (quoting United States v. González-Rodríguez, 859
F.3d 134, 137 (1st Cir. 2017)). But, where an objection has been
raised, the "mere inclusion in the PSR" of factual allegations
"does not convert facts lacking an adequate evidentiary basis with
sufficient indicia of reliability into facts a district court may
rely upon at sentencing." United States v. Harris, 702 F.3d 226,
230 n.2 (5th Cir. 2012). And, the objected-to allegation in the
PSR that Carrión was an "armed enforcer for [a] drug trade
organization" does lack the indicia of reliability that we have
found sufficient in prior cases. See, e.g., United States v. Lee,
892 F.3d 488, 492 (1st Cir. 2018); United States v. Mills, 710
F.3d 5, 16 (1st Cir. 2013); United States v. Green, 426 F.3d 64,
67 (1st Cir. 2005). Instead, as Carrión contends, the armed-
enforcer allegation is multiple-level hearsay that does not fall
into a recognized exception, is made by an unnamed source, is not
detailed, and is uncorroborated. Thus, we agree with Carrión that,
insofar as the District Court did rely on this allegation in the
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PSR in applying the enhancement, it abused its discretion in doing
so.
Notably, the government does not contend in its briefing
to us -- though it switched course at oral argument -- that the
allegation in question in the PSR does bear sufficient indicia of
reliability to provide a supportable basis for finding Carrión to
be an "armed enforcer for [a] drug trade organization." It
contends instead only that the District Court did not rely on the
allegation when applying the four-level enhancement. As to that
contention, however, we cannot agree.
The government does not dispute that the District Court
cited to and stated the "armed enforcer" allegation as if it were
a fact in setting forth the reasons for choosing Carrión's
sentence. It instead contends that the District Court did so only
in reference to the balancing of the sentencing factors set out in
18 U.S.C. § 3553(a) and not to support the application of the four-
level enhancement to which Carrión objects.
To be sure, at the sentencing hearing, most immediately
before denying Carrión's objection to the four-level enhancement,
the District Court noted Carrión's unexplained possession of a
large amount of cash, and not the "armed enforcer" allegation.
The record reveals, however, that the allegation was made
persistently at each stage of the sentencing proceedings, starting
when the original PSR was filed. It further reveals that by the
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end of the sentencing proceedings the District Court had the
allegation in mind and found it sufficiently reliable to use in
crafting the sentence. And, while the government may have tried
to maintain a wall between the evidence that it used in addressing
the § 3553(a) factors and the evidence on which it relied to argue
for application of the four-level enhancement under the
Guidelines, the District Court denied Carrión's objections to the
application of the four-level enhancement, first in a minute order
and then in a short statement from the bench, without clearly
stating in either that the allegation played no role in its
determination that the enhancement applied.
We thus conclude that it is prudent to give the District
Court the opportunity to clarify and, if appropriate, reconsider
the precise basis for applying the enhancement. See United States
v. Gilman, 478 F.3d 440, 446-47 (1st Cir. 2007) ("[I]f we are in
fact unable to discern from the record the reasoning behind the
district court's sentence, appellate review is frustrated and 'it
is incumbent upon us to vacate, though not necessarily to reverse'
the decision below to provide the district court an opportunity to
explain its reasoning at resentencing." (quoting United States v.
Feliz, 453 F.3d 33, 36 (1st Cir. 2006)) (citing United States v.
McDowell, 918 F.2d 1004, 1012 (1st Cir. 1990))). A review of the
evidence in the record that is independent of the challenged
allegation supports our following this course.
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There is a surfeit of support in the record for a finding
regarding Carrión's involvement with firearms. But, the
enhancement as applied here, see supra note 1, also requires that
the possession of firearms be in connection with drug trafficking.
There is evidence in the record that supportably shows
that at least one of the people depicted in the video is involved
in the drug trade, but the District Court appears to have indicated
that it was inclined not to rely on the video, in part due to
questions about the video's probative value with respect to Carrión
himself. Moreover, the record does not show that the person who
was found with Carrión and arrested at the gas station is involved
in drug trafficking.
Carrión was found with more than $2,000 in cash along
with drugs, and he had a prior drug conviction. But, the quantity
of those drugs was relatively small and arguably consistent with
personal use, and the conviction was from 2010, which was eight
years before his arrest in this case. In addition, the record
does not show when the photographs that the government included in
its sentencing memorandum and that appear to show Carrión with
large quantities of drugs were taken.
The government emphasizes that a firearm was found with
the small amount of drugs in Carrión's sports bag and that "in a
situation in which the additional felony [underlying the four-
point enhancement] is drug trafficking, the guideline means that
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the enhancement is appropriate whenever the firearm is in close
proximity to drugs." United States v. Paneto, 661 F.3d 709, 717
(1st Cir. 2011). And, we recognize that we have upheld on clear
error review the express application of the four-level enhancement
at issue here based on certain inferences made from factual
predicates that bear some similarities to this one. See United
States v. Reyes-Torres, 979 F.3d 1, 8-9 (1st Cir. 2020); United
States v. Matthews, 749 F.3d 99, 105-06 (1st Cir. 2014); United
States v. Cannon, 589 F.3d 514, 515, 518-19 (1st Cir. 2009).
But, the District Court here, as we have explained, made
no clear factual finding that the evidence independent of the armed
enforcer allegation supported the conclusion that Carrión was
involved with drug trafficking such that his possession of the
firearms was in connection with such trafficking and thus that
that evidence supported the sentencing enhancement's application.
We thus have no finding here to scrutinize that is akin to those
that had been made in the cases that the government invokes in
asking us to affirm the application of the enhancement here.
III.
We vacate the sentence and remand for resentencing.
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United States v. Carrion-Melendez
Combined Opinion