United States v. Castillo-Torres

United States Court of Appeals
For the First Circuit

No. 21-1243

UNITED STATES OF AMERICA,

Appellee,

v.

SANTOS CASTILLO-TORRES,

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

Kayatta and Barron, Circuit Judges,
and Saris, District Judge.

Alejandra Bird López, Research & Writing Specialist, with
whom Eric Alexander Vos, Federal Public Defender, and Franco L.
Pérez-Redondo, Assistant Federal Public Defender, Supervisor,
Appeals Division, were on brief, for appellant.
Gregory Bennett 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 Thomas F. Klumper, Assistant United States Attorney,
Senior Appellate Counsel, were on brief, for appellee.

 Of the District of Massachusetts, sitting by designation.
August 11, 2021
 KAYATTA, Circuit Judge. Santos Castillo-Torres pled

guilty to unlawful reentry in violation of 8 U.S.C. § 1326(a).

His sentencing range under the United States Sentencing Guidelines

was eight to fourteen months. Both Castillo and the government

urged the district court to issue a below-Guidelines sentence,

with Castillo seeking time served or "some nominal sentence at

most" and the government recommending six months' imprisonment.

Castillo sought leniency on the grounds that unlawful reentry is

a non-violent, victimless crime; that he at one point attempted to

normalize his status based on a lawful marriage to a U.S. citizen;

and that his incarceration on an unrelated state crime and the

likelihood of ongoing detention pending removal were sufficient to

deter him from reoffending in the future. The district court

sentenced Castillo to eight months' imprisonment. In doing so,

and over Castillo's objection, the district court relied on

allegations in a Puerto Rico criminal complaint to find that

Castillo had previously used a weapon to cut another person.

Agreeing with Castillo that the bare criminal complaint provided

no reliable evidence to support the district court's finding, we

vacate the sentence and remand for resentencing. Our reasoning

follows.

I.

At sentencing, Castillo's prior Puerto Rico criminal

conviction appropriately became a subject of the district court's

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focus. As originally presented, the Presentence Report (PSR)

stated that "on September 9, 2020 at approximately 3:04pm,"

Castillo "illegally and with criminal intent, brandished and used

a knife (silver in color, with a brown end) against Francisco

Sanchez." The PSR further stated that Castillo "used a knife and

made a cut in the victim's left arm," sending Sanchez to the

hospital, and threatened that he was "going to kill [Sanchez]."

Castillo objected to any contention that he used the

knife to cut or threaten Sanchez, arguing:

Mr. Castillo categorically denies the
accuracy of this description. The paragraph
describes conduct for which Mr. Castillo was
not convicted and with respect to which the
Puerto Rico court did not make findings. A
criminal charge alone does not prove criminal
guilt of the charged conduct.

He asserted that he had pled guilty in Puerto Rico court only to

felony possession of a bladed weapon, and pointed out that the

misdemeanor assault and threat charges had been dropped.

Acknowledging the objection, Probation amended the PSR

to make clear that the "circumstances depicted in these paragraphs

were described in the criminal complaints pertaining to said cases.

However, these depictions do not imply the Probation Officer's

position regarding the defendant's behavior at the time."

The district court nevertheless relied upon the charges

in the criminal complaint to find that Castillo actually used the

weapon to cut Sanchez, stating that "based on [the] relevant

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circumstances and the description of the offense, there were

threats; there was the use of a weapon; there was a cut." In part

for this reason, the district court imposed a sentence of eight

months' imprisonment, at the low end of Castillo's Guidelines

sentencing range but above what the parties were requesting.

II.

Factual findings made at sentencing must be supported by

a preponderance of the evidence. See United States v. Morgan, 384

F.3d 1, 5 (1st Cir. 2004). Whether they were so supported is a

question we review for clear error. See United States v. Luciano,

414 F.3d 174, 180 (1st Cir. 2005). We have made clear that findings

based solely on unreliable evidence cannot be established by a

preponderance and are therefore clearly erroneous. See United

States v. Colón-Maldonado, 953 F.3d 1, 9–10 (1st Cir. 2020).

Determinations of reliability are reviewed for abuse of

discretion. See Luciano, 414 F.3d at 180.

We have previously warned district courts not to base

sentencing determinations upon mere charges unsupported by any

admission or some other evidence, "even when the defendant offers

no rebuttal evidence." Colón-Maldonado, 953 F.3d at 9 (explaining

that a sentencing judge may not "rely[] on mere charges to 'infer

unlawful behavior unless there is proof by a preponderance of the

evidence of the conduct initiating [those] arrests and charges'"

(quoting United States v. Rondón-García, 886 F.3d 14, 25–26 (1st

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Cir. 2018))); United States v. Díaz-Lugo, 963 F.3d 145, 153 (1st

Cir. 2020) (stating that a sentencing court may not "rely on an

arrest record as evidence of a defendant's conduct in the absence

of some reliable indication that the underlying conduct actually

occurred"); United States v. Marrero-Pérez, 914 F.3d 20, 22 (1st

Cir. 2019) ("[N]o weight should be given in sentencing to arrests

not buttressed by convictions or independent proof of conduct.").

It is true that each of those cases involved either an

upward departure or an upward variance. Some also implicated a

Guidelines provision that prohibits courts from granting upward

departures on the basis of arrest records. See, e.g., Marrero-

Pérez, 914 F.3d at 22, 24 (citing U.S.S.G. § 4A1.3(a)(3)); see

also United States v. Rodríguez-Reyes, 925 F.3d 558, 563–68 (1st

Cir. 2019); United States v. Díaz-Rivera, 957 F.3d 20, 26 (1st

Cir. 2020); United States v. Dávila-Bonilla, 968 F.3d 1, 10 n.7

(1st Cir. 2020); Colón-Maldonado, 953 F.3d at 9 n.8. So one might

argue that evidence deemed insufficiently reliable to support a

departure or variance might nevertheless be deemed reliable enough

to set a within-Guidelines sentence, as the district court did

here. But we see no reason why we should find a bare allegation

too unreliable to support a departure, yet sufficiently reliable

here. In both instances, the challenged information appears to

form the basis for a longer term of immurement than the court would

have imposed absent reliance on that information. And the

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unreliability of the information remains constant. For that

reason, we find it unsurprising that many of our admonitions

against the use of unsupported allegations in mere charges contain

no hint that they should apply only to some forms of sentence

enhancement and not others. See Colón-Maldonado, 953 F.3d at 9–

10, 9 n.8; Díaz-Lugo, 963 F.3d at 153; cf. United States v.

Amirault, 224 F.3d 9, 15 (1st Cir. 2000) (stating that "[f]rom the

standpoint of due process, a district court properly may consider

uncharged conduct at sentencing" only if "that conduct either is

admitted or reliably proved by a preponderance of the evidence").

This case involves a criminal complaint, rather than a

mere record of arrest. But the complaint, by itself, also lacks

sufficient indicia of reliability to support a finding that the

defendant more likely than not committed the charged conduct. See

Dávila-Bonilla, 968 F.3d at 9–10; cf. United States v. Juwa, 508

F.3d 694, 701 (2d Cir. 2007). As we explained in United States v.

Colón-Maldonado, a Puerto Rico criminal complaint "is just an

accusation that starts off a criminal case." 953 F.3d at 2 (citing

P.R. Laws Ann. tit. 34, Ap. II, §§ 5, 34). We recognize that

statements made in a criminal complaint can be relied upon where

there are "other 'indicia of trustworthiness'[] to permit a

reasoned conclusion that the statements are . . . reliable." Id.

at 10 (quoting Rondón-García, 886 F.3d at 21). But on this record,

we cannot conclude that the allegations contained in the complaint

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and repeated in the PSR were anything but "uncorroborated, unsworn

hearsay with no other marks of reliability." Id. at 12. The

district court abused its discretion in concluding otherwise.

Of course, statements made by a probation officer in a

PSR following his or her investigation are sometimes deemed

reliable enough by themselves to support a factual finding by the

sentencing court absent any evidence to the contrary. See United

States v. Arce-Calderon, 954 F.3d 379, 382 (1st Cir. 2020); United

States v. Cyr, 337 F.3d 96, 100 (1st Cir. 2003); United States v.

Grant, 114 F.3d 323, 328 (1st Cir. 1997). Here, though, in

agreeing to amend the PSR based on Castillo's objection, the

probation officer made clear that in reporting this criminal

charge, the probation officer was not taking any "position

regarding the defendant's behavior at the time." Thus, we are not

presented here with a fact asserted by a probation officer,

followed by silence from the defendant. Rather, we have a careful

probation officer passing along allegations made by someone else

in a criminal complaint, without vouching for them and with the

defendant challenging their accuracy and provenance.

The government insists that the district court relied

only on a finding that Castillo's Commonwealth conviction was

"violent in nature." According to the government, such a finding

was supportable because Castillo necessarily pled guilty to the

violent offense of "using" or "brandishing" a knife, not merely

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"possessing" or "displaying" it. The government points to an

unofficial translation of the Commonwealth statute underlying

Castillo's conviction, P.R. Laws Ann. tit. 25, § 466e, which states

that it is unlawful to "use[] . . . a knife . . . against another

person, or show[] it or use[] it to commit or to attempt to commit

an offense." Castillo disputes this translation and submits his

own unofficial version of the statute. Castillo's proffered

translation contains a comma after "show[] it," such that the

statute prohibits in separate clauses "us[ing] . . . a knife . . .

against another person, or show[ing] it, or us[ing] it to commit

or to attempt to commit an offense." Castillo also submits an

unofficial translation of the Commonwealth court judgment,

indicating that he was found "guilty by confession of [a violation

of section 466e] (the use is eliminated)."

We need not decide whether and to what extent we can

rely on any of these submissions. Regardless of whether Castillo

was convicted of using a weapon, nothing in the record provides

competent proof that he did what the district court concluded he

did -- cut and threatened to kill his antagonist.1

The government also suggests that the district court

could have found Castillo was arrested and convicted for violent

conduct based on his admission that he had an "antagonistic

1 We accordingly deny as moot Castillo's motion to supplement
the record as to this point.

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interaction" with Sanchez preceding his arrest. We doubt that

Castillo's words can be stretched so far. But we need not resolve

the question because the district court did not rely on a mere

finding that Castillo had been violent in some unspecified manner.

Rather, as we have explained, it emphasized and treated as true

unreliable allegations that Castillo threatened and cut Sanchez.

To that extent, it clearly erred.

We cannot say that the district court's error was

harmless, i.e., that it "did not affect the . . . selection of the

sentence imposed." United States v. Tavares, 705 F.3d 4, 26–27

(1st Cir. 2013) (quoting Williams v. United States, 503 U.S. 193,

203 (1992)). To be sure, there was ample other evidence relevant

to sentencing. Castillo offered much mitigating evidence in

support of his request for a time-served sentence, while the

government pointed to examples countering that mitigation to

justify a sentence of six months' imprisonment. Certainly the

district court remained free to reject both requests in favor of

a higher sentence, as long as it based its ultimate sentencing

decision on reliable information. However, the district court's

own statements made clear that it placed substantial weight on the

allegations underlying the dismissed misdemeanor assault and

threat charges against Castillo. And that makes sense -- if it

could be shown that Castillo struck another with a knife without

justification, one would expect such a fact to be given some

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weight. But, as explained above, that fact was not proven at

sentencing by a preponderance of the evidence.2

All that remains is Castillo's request to be resentenced

by a different judge. Requests for a new judge on remand are

granted "only in very unusual cases," United States v. Vázquez-

Méndez, 915 F.3d 85, 88 (1st Cir. 2019), such as where "there is

reason to think that a judge will base sentencing determinations

on unreliable or inaccurate information" or where "the original

judge displayed a 'deep-seated favoritism or antagonism that would

make fair judgment impossible,'" United States v. Alvira-Sanchez,

804 F.3d 488, 496 (1st Cir. 2015) (quoting Yosd v. Mukasey, 514

F.3d 74, 78 (1st Cir. 2008)); see also United States v. Zavala-

Martí, 715 F.3d 44, 56–57 (1st Cir. 2013) (remanding for

resentencing by a different judge because the defendant's original

life sentence exceeded the statutory maximum and was based in part

on ex parte information). This is not such an unusual case. While

the sentencing judge did err in relying on bare allegations against

Castillo, she correctly calculated the Guidelines sentencing

range, and she otherwise diligently and comprehensively analyzed

the section 3553(a) factors before imposing a sentence. On this

2 Because we do not think the government has shown that the
district court's error was harmless, we need not address Castillo's
argument that the government is required to meet the even more
stringent standard of showing harmlessness beyond a reasonable
doubt.

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record, we see no reason why the same judge could not entirely put

to one side the unsupported allegations just as would any other

judge to whom the case might be reassigned (and who would also be

aware of the allegations from reading this opinion).

III.

To summarize our holding: The district court exceeded

the scope of its discretion by relying on a bare allegation in the

Puerto Rico criminal complaint to justify a sentence longer than

otherwise would have been imposed, given that the allegation was

both challenged by the defendant and unsupported by any other

indicia of reliability. We therefore vacate the sentence and

remand for resentencing.3

Additionally, given that this appeal was briefed and

argued on an expedited basis, that Castillo's current sentence is

set to expire in October 2021, and that Castillo may be released

even sooner if he receives a reduced sentence on remand, we order

that the mandate shall issue within seven days of the filing of

this opinion. See Fed. R. App. P. 41(b) (providing that "[t]he

court may shorten . . . by order" the time for issuing its

3 Having found that the district court abused its discretion
in relying on bare allegations of Castillo's prior criminal
conduct, we need not address Castillo's argument that the district
court also erred in concluding that he had not availed himself of
employment. In any event, Castillo admits that he "does not really
raise [that argument] as a separate and distinct basis for
reversal."

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mandate); David G. Knibb, Federal Court of Appeals Manual § 34.12

(7th ed. 2021) ("In an expedited appeal, the court may shorten the

time for issuing its mandate, but leave the losing party enough

time to apply to the Supreme Court for a stay of mandate pending

its preparation and filing of a petition for certiorari.").

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