United States v. Marchena-Silvestre , 802 F.3d 196 ( 2015 )

United States Court of Appeals
For the First Circuit
No. 14-1404
UNITED STATES OF AMERICA,
Appellee,
v.
DAN CARLOS MARCHENA-SILVESTRE,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. José Antonio Fusté, U.S. District Judge]
Before
Kayatta, Selya, and Dyk,*
Circuit Judges.
Juan Carlos Reyes-Ramos, Assistant United States Attorney,
with whom Rosa Emilia Rodríguez-Vélez, United States Attorney, and
Nelson Pérez-Sosa, Assistant United States Attorney, Chief,
Appellate Division, were on brief, for appellee.
Linda J. Thompson, with whom Robert F. Hennessy and Thompson
& Thompson, PC, were on brief, for appellant.
October 6, 2015
____________________
*Of the Federal Circuit, sitting by designation.
KAYATTA, Circuit Judge. Dan Carlos Marchena-Silvestre
("Marchena-Silvestre") appeals his seventy-two month sentence
following his guilty plea to a charge of unlawfully possessing
automatic weapons. After careful review of the record, we
conclude that the district court's sentencing determination was
infected by plain error.
I. Background
Since Marchena-Silvestre's sentence followed a guilty
plea, we draw the facts from the plea agreement, the change-of-
plea colloquy, the presentence investigation report (PSR), and the
sentencing hearing transcript. See United States v. Almonte-
Nuñez, 771 F.3d 84, 86 (1st Cir. 2014). We rehearse only the
facts necessary to form a basis for our analysis.
A. The Offense and Indictment
On October 24, 2013, Puerto Rico law enforcement agents
searched Marchena-Silvestre's apartment pursuant to a search
warrant. The agents discovered and seized the following arsenal
of firearms and ammunition: (1) an AR-15 assault rifle, unlawfully
modified to fire in full automatic mode, equipped with an unlawful
short barrel, and loaded with one round in the chamber and thirty-
seven rounds in the magazine; (2) a Glock pistol, unlawfully
modified to fire in full automatic mode, loaded with one round in
the chamber and twelve rounds in the magazine; and (3) an
additional 127 rounds of ammunition for the two firearms.
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After waiving his Miranda rights, Marchena-Silvestre
admitted that the firearms and ammunition belonged to him, that he
purchased both firearms, and that he also purchased and installed
a metal chip that enabled the Glock pistol to fire in full
automatic mode. The investigating agents also discovered that the
Glock pistol had been stolen from its registered owner. Less than
a week after the seizure, a federal grand jury returned an
indictment charging Marchena-Silvestre with possessing a machine
gun in violation of 18 U.S.C. § 922(o) and possessing a stolen
firearm in violation of 18 U.S.C. § 922(j).
B. The Plea Agreement
Pursuant to a written plea agreement (the Agreement)
with the government, Marchena-Silvestre agreed to plead guilty to
possessing the machine gun. In turn, the government agreed to
dismiss the charge that he possessed a stolen firearm, so long as
Marchena-Silvestre complied with the Agreement's terms.
Paragraph 7 of the Agreement, entitled "Applicability of
United States Sentencing Guidelines," contained a chart of
"Sentencing Guidelines Calculations" for 18 U.S.C. § 922(o) that
Marchena-Silvestre and the government agreed to "submit" to the
court. The chart included a base offense level of 18, see U.S.S.G.
§ 2K2.1(a)(5), a two-point upward enhancement for a stolen
firearm, see U.S.S.G. § 2K2.1(b)(4)(A), and a three-point
reduction for acceptance of responsibility, see U.S.S.G. § 3E1.1,
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to arrive at a total adjusted offense level of 17. Since the
parties did not agree to a criminal history category, the chart
then set out the applicable guideline sentencing ranges for
criminal history categories I (24–30 months) through VI (51–63
months). Paragraph 9, entitled "Sentence Recommendation,"
provided that "the government reserves the right to request a term
of imprisonment equal to the higher end of the applicable
guidelines range and the defendant will request a term of
imprisonment equal to the lower end of the applicable guidelines
range," and that "any recommendation by either party for a term of
imprisonment above or below the stipulated sentence recommendation
constitutes a material breach of the . . . Agreement." The
stipulated sentencing recommendations did not bind the district
court, and Marchena-Silvestre only retained the right to appeal in
the event that the district court did not sentence him within the
stipulated guideline sentencing range.
C. The Presentence Investigation Report
The district court accepted Marchena-Silvestre's guilty
plea at the plea colloquy, and instructed the probation department
to submit a PSR. The PSR departed from the Agreement by
recommending a base offense level of 20 rather than 18, due to the
added consideration that the defendant's unlawful use of
controlled substances made him a "prohibited person" under the
guidelines. See U.S.S.G. § 2K2.1(a)(4)(B). The PSR applied the
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same two base level adjustments as recommended by the Agreement,
resulting in a total offense level of 19 (rather than 17 as
calculated in the Agreement).
The PSR also detailed Marchena-Silvestre's criminal
history: In 2009, he was convicted of carrying a firearm in
violation of Puerto Rico's Weapons Law (a misdemeanor for which he
was fined $300); and in 2013 he was convicted of illegally
occupying property owned by the Puerto Rico Housing Department,
resulting in a $50 fine. The two convictions resulted in a
criminal history category of I. Cross-referencing that category
with the total offense level of 19, the PSR recommended a guideline
sentencing range of 30 to 37 months. See U.S.S.G. ch. 5 pt. A
(Sentencing Table). In his sentencing memorandum, Marchena-
Silvestre stated that he had "no objections" to the PSR.
D. The Sentencing Hearing
The sentencing hearing began with the government
informing the court that it would request a sentence at the "high
end range of the guideline sentence." The court proceeded to
summarize the facts of the case based on the PSR, noting the
serious and illegal arsenal at the heart of the case. The court
then moved to reviewing Marchena-Silvestre's criminal history,
noting that a combination of prior offenses without serious
penalties "is what really strikes you when you see this kind of
thing." The court noted what it thought were two prior firearms
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charges: one a misdemeanor conviction for carrying a firearm
without a license, the other an arrest for carrying what the court
described as a "nine millimeter nickel plated pistol." In fact,
the second charge as described in the PSR was for carrying a
"nickel magazine loaded with three rounds of .9 caliber
ammunition," a charge dropped for lack of probable cause. No one
corrected the court's misreading.
Given a turn to speak again before the court calculated
a guideline sentencing range, the prosecutor claimed that he stood
by the terms of the Agreement, yet he recommended a 37-month
sentence, equaling the high end of the PSR's recommended range
(rather than the 30-month high end as specified in the Agreement's
chart for a criminal history category of I).
During the ensuing discussion, the district court
inexplicably announced that Marchena-Silvestre "has a base offense
level of 19," which was both wrong and contrary to any information
that was before the court. The court also neglected to calculate
any total offense level. The court made clear that it did not
regard the case as a guidelines "heartland" case, and that it felt
a lengthier sentence was needed because of the high incidence of
criminal violence in the Commonwealth for which there was too
little accountability. It recited the "factors to be considered
in imposing a sentence" listed in 18 U.S.C. § 3553(a), and made
clear that it felt that a "variance is in order under [the] 3553(a)
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factors." The court then announced its sentence by beginning with
a guideline sentencing range, as follows:
Range is 31 to 41 months. The fine range
is 6,000 to 60 thousand, which means nothing
in [this] case. Plus supervised release of
one to three years. Statutory maximum, ten
years. I think that this case, because of the
kind of gun, ammunition involved, his prior
experiences before the law with guns, requires
a sentence of at least 72 months is the
sentence I'm imposing.
Unfortunately, the announced guideline sentencing range
corresponded to nothing in the PSR nor, for that matter, to any
offense level in the sentencing guidelines. See U.S.S.G. ch. 5
pt. A (Sentencing Table). Had the court adopted the PSR's
recommendation, the range should have been 30 to 37 months. Even
more unfortunately, no one in the courtroom--including even
defense counsel--corrected the court.
Piling error on top of errors, when the district court
submitted its written statement of reasons, it wrote that the total
offense level was 19, that the criminal history category was I,
and that the guideline sentencing range was 33 to 41 months (not
31 to 41 months as it had stated earlier, or 30 to 37 months as
recommended by the PSR). A guideline sentencing range of 33 to
41 months, however, applies to either a total offense level of 20
with a criminal history category of I, or a total offense level of
19 with a criminal history category of II. See U.S.S.G. ch. 5 pt.
A (Sentencing Table). And, of course, that guideline sentencing
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range includes a higher floor than the (also incorrect) range
announced at the hearing.1
II. Analysis
On appeal, Marchena-Silvestre says that he is entitled
to resentencing for three reasons: (1) his sentencing hearing was
procedurally flawed, (2) his above-guideline 72-month imprisonment
term is substantively unreasonable, and (3) the government
materially breached the plea agreement. Because Marchena-
Silvestre did not raise these objections in the district court, we
review only for plain error. See United States v. Dávila-
González, 595 F.3d 42, 47 (1st Cir. 2010); see also United States
v. Ruiz-Huertas, 792 F.3d 223, 228 (1st Cir. 2015). The plain
error standard of review places the burden on Marchena-Silvestre
to make four showings in order to justify reversal: "(1) that an
error occurred (2) which was clear or obvious and which not only
(3) affected the defendant's substantial rights, but also (4)
seriously impaired the fairness, integrity, or public reputation
1
Our court has generally given controlling weight to the
district court's oral explanation of a sentence when it differs
from its written explanation. See United States v. Flemmi, 402
F.3d 79, 96 n.26 (1st Cir. 2005); United States v. Muniz, 49 F.3d
36, 42 n.5 (1st Cir. 1995). Here, since both the oral and written
guidelines calculations contain clear and obvious error, we need
not choose which controls. We simply note that the written
explanation only compounds the confusion arising from the
incorrect calculation at the sentencing hearing.
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of judicial proceedings." United States v. Duarte, 246 F.3d 56,
60 (1st Cir. 2001).
A. Failure to Calculate the Guideline Sentencing Range
"'[F]ailing to calculate (or improperly calculating) the
Guidelines range' is a 'significant procedural error.'" United
States v. Tavares, 705 F.3d 4, 25 (1st Cir. 2013) (alteration in
original) (quoting Gall v. United States, 552 U.S. 38, 51 (2007)).
The court's calculation failures in this case were obvious and
several. It neglected to calculate a total offense level,
misstated the base offense level, and settled on a non-existent
guideline sentencing range extending four months longer than the
upper end of the range recommended by the PSR.
These errors and their obviousness easily satisfy the
first two requirements for a successful plain error challenge.
The closer question is whether Marchena-Silvestre also satisfies
the requirement that he show that the obvious errors "affected
[his] substantial rights." Duarte, 246 F.3d at 60. In the
sentencing context, we construe this requirement as imposing a
"burden of showing a reasonable likelihood 'that, but for the
error, the district court would have imposed a different, more
favorable sentence.'" United States v. Ortiz, 741 F.3d 288, 293-
94 (1st Cir. 2014) (quoting United States v. Turbides-Leonardo,
468 F.3d 34, 39 (1st Cir. 2006)). For the following reasons, we
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think that Marchena-Silvestre has shown such a reasonable
likelihood.
We begin with the role of the guidelines calculation
itself. We need tread no new ground in pointing out what precedent
already makes clear about the required nature of that calculation:
Although the Sentencing Guidelines are
now advisory rather than mandatory, district
courts are still required to 'begin all
sentencing proceedings by correctly
calculating the applicable Guidelines range.'
Gall, 552 U.S. at 49. Only after a court has
correctly calculated the applicable
[guideline sentencing range] and evaluated the
factors set out in 18 U.S.C. § 3553(a) can it
properly exercise its discretion to sentence
a defendant within or outside the applicable
Guidelines range. Far from a meaningless
exercise, the requirement that the district
court begin by correctly calculating the
[guideline sentencing range] serves an
important function; it provides 'a framework
or starting point' to guide the exercise of
the court's discretion. Freeman v. United
States, 131 S. Ct. 2685, 2692 (2011).
Starting with such a framework gives the
sentencing judge 'an idea of the sentences
imposed on equivalent offenders elsewhere,'
which in turn 'promote[s] uniformity and
fairness' in sentencing. United States v.
Rodríguez, 630 F.3d 39, 41 (1st Cir. 2010).
Thus, even though sentencing judges are free
to impose non-Guidelines sentences in
appropriate cases, 'district courts must still
give respectful consideration to the now-
advisory Guidelines (and their accompanying
policy statements).' Pepper v. United
States, 131 S. Ct. 1229, 1247 (2011).
United States v. Millán-Isaac, 749 F.3d 57, 66-67 (1st Cir. 2014).
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It is therefore fair to presume in the ordinary case
that there is a reasonable likelihood that any variance added onto
that starting point moves the end point beyond where it would have
been but for the error in the starting point. See Ortiz, 741 F.3d
at 294 ("[T]here is every reason to believe that the court used
the [guideline sentencing range] as an anchoring point from which
to vary."); Rodríguez, 630 F.3d at 41 (explaining that the
sentencing judge must "start out by calculating the proper
Guidelines range--a step so critical that a calculation error will
usually require resentencing").
This is not to say that every error in calculating the
guideline sentencing range calls for reversal under plain error
analysis, or even under harmless error analysis. See United
States v. Marsh, 561 F.3d 81, 86 (1st Cir. 2009) (declining to
resolve a dispute over whether the court erroneously applied an
upward departure under the guidelines because "the district court
stated that it would have reached the same result in a non-
Guideline setting"); United States v. Gerhard, 615 F.3d 7, 35 (1st
Cir. 2010) (similar); cf. Williams v. United States, 503 U.S. 193,
202-03 (1992) (explaining that remand is required under harmless
error analysis "only if the sentence was imposed as a result of an
incorrect application of the Guidelines" (internal quotation marks
omitted)). A sentencing court might, for example, make it clear
that it was aware of a possible flaw in its calculation of a
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guideline sentencing range, and explain that its sentence would
nevertheless be the same under an alternative analysis pressed by
the party that ultimately appealed. See, e.g, Tavares, 705 F.3d
at 24-28 (deeming district court's error in not conclusively
choosing between the parties' proposed sentencing ranges harmless
because the court indicated its understanding of the competing
calculations and then stated it would elect a sentence above either
range). Here, though, there is no such explanation by the court.
Instead the government asks us to infer such a view, relying on
the small number of months by which the court erred, the relatively
much greater size of the variance, and the round year nature of
the sentence, all on top of a fair description of the
section 3553(a) factors and a clear intent to issue a variant
sentence.
While the case for such an inference is certainly
plausible, we think it falls short of serving as an adequate
substitute for a "clear statement by the court" that would be
sufficient to "diminish the potential of the [guideline sentencing
range] to influence the sentence actually imposed." Ortiz, 741
F.3d at 294 (citing United States v. McGhee, 651 F.3d 153, 159
(1st Cir. 2011)). Here, the district court attempted to calculate
a guideline sentencing range, described this case by reference to
its differences from the "heartland of cases" within that range,
and, throughout the hearing, recited a litany of justifications
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under section 3553(a) for varying upward from that range given the
specific characteristics of the defendant and the crime. There
is nothing wrong with this approach--unless one starts at the wrong
yard marker.
It is, of course, true that the district court declared
before hearing any argument that this was "not a guideline case."
Seizing on this declaration, the government argues that the
incorrect calculation could not have materially affected the
sentence. This argument directly conflicts with the government's
own assertions--with which we agree--that the court "did consider
the Guidelines," and then exercised its discretion to vary upward.
And we have already explained that the district court's repeated
references to the guidelines and the "heartland of cases" within
those guidelines indicate to us that the guidelines served as a
starting point from which the court imposed an upward variance.
It follows that if the district court had correctly calculated a
lower starting point, then there is at least a reasonable
likelihood that it would have landed on a sentence shorter than 72
months (even if just a few months shorter). Nothing in this record
provides any indication clear enough to overbear the probative
force of this logical presumption. See Ortiz, 741 F.3d at 294
(finding that since "the record contain[ed] no suggestion that the
court considered the dimensions of the [guideline sentencing
range] to be irrelevant," an error in calculating defendant's
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criminal history score caused plain error); United States v.
Fagans, 406 F.3d 138, 141 (2d Cir. 2005) (explaining that "an
incorrect calculation of the applicable Guidelines range will
taint not only a Guidelines sentence, . . . but also a non-
Guidelines sentence, which may have been explicitly selected with
what was thought to be the applicable Guidelines range as a frame
of reference").
Turning to the last prong of plain error review, we need
not tarry. The district court's repeated failures to calculate
the guideline sentencing range correctly, or to explain its
calculation, all in a fashion that created a higher range than was
recommended by either the PSR or the Agreement, compromised the
fairness and integrity of the proceeding. See Olano, 507 U.S. at
736. We therefore conclude that, under plain error review, we
should exercise our discretion to vacate Marchena-Silvestre's
sentence and afford him a new sentencing hearing. See United
States v. González-Castillo, 562 F.3d 80, 84 (1st Cir. 2009).2
2
Since resentencing will be required, we need not address
Marchena-Silvestre's arguments that the district court's choice of
sentence rested on a clearly erroneous fact, that its explanation
was inadequate, or that the 72-month imprisonment term is
substantively unreasonable. See Millán-Isaac, 749 F.3d at 73 n.9.
We also need not address Marchena-Silvestre's argument that an
abuse of discretion standard of review would apply had we reached
the issue of substantive reasonableness. Cf. United States v.
Ruiz-Huertas, 792 F.3d 223, 228 (1st Cir. 2015).
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B. Alleged Breach of the Plea Agreement
Our decision to remand for resentencing due to
procedural error does not end our analysis, because the parties
disagree concerning the meaning of the plea agreement that will
still apply on resentencing, and we typically grant specific
performance as a remedy where the government's breach of a plea
agreement leads to reversible error. See United States v. Clark,
55 F.3d 9, 14 (1st Cir. 1995). We therefore address the claimed
breach, reviewing once again for plain error. In so doing, we
construe the terms and conditions in plea agreements in accordance
with traditional principles of contract law, see United States v.
Murphy-Cordero, 715 F.3d 398, 400 (1st Cir. 2013) (interpreting a
waiver of appeal clause), looking outside the document only as
necessary to provide illuminating context or resolve ambiguities
in the writing, see United States v. Alegria, 192 F.3d 179, 183
(1st Cir. 1999).
The parties appear to agree--as do we--that the
existence of a breach turns on the meaning of the phrase
"applicable guidelines range" in Paragraph 9 ("Sentence
Recommendation") of the Agreement. In Marchena-Silvestre's view,
the phrase refers to the range identified by the Agreement itself,
in the chart in Paragraph 7 ("Applicability of United States
Sentencing Guidelines"), thereby requiring the government to
recommend a sentence no greater than 30 months. The words of the
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Agreement strongly support this view. One naturally presumes that
the undefined term "applicable guidelines range" would refer
precisely to the guideline settlement ranges set forth in the
immediately prior section of the Agreement called "Applicability
of United States Sentencing Guidelines." If this were not the
intended cross-reference, and one must look outside the Agreement
to figure out the applicable guideline sentencing range, one would
be left to ask: Does it refer to the ranges specified in the PSR,
or to those found by the district court?
The government in its brief answers this question by
insisting that the "applicable guidelines range" means "the
advisory Guidelines' range found applicable at the sentencing
hearing." But the government itself adopted as its recommendation
the range set forth in the PSR before the district court found the
applicable range. Nor did the government revise its
recommendation when it learned of the court's different (and
higher) calculation. Given this sequence of events, the
government's argument is like the thirteenth chime of a clock:
you not only know it's wrong, but it causes you to wonder about
everything you heard before.
Returning to the Agreement itself, we observe that if
the government were correct, the chart in Paragraph 7, which
occupies nearly an entire page of the Agreement, would have no
apparent purpose. Conversely, under Marchena-Silvestre's
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reading, it serves the obvious purpose of setting out the
"applicable sentencing guidelines" that limited the range of
sentences the parties could recommend at the hearing. Confronted
with this observation at oral argument, the government offered
that the chart's purpose was "transparency" for the defendant.
But if this construction of the chart as a gratuitous, unnecessary,
and non-binding educational illustration were correct, we think
the chart would only be capable of confusing the defendant and
setting an expectation that could both go unmet by the government's
recommendation later on and provide possible cause for a withdrawal
of the plea.
Marchena-Silvestre's reading also finds strong support
in the repeated reference to a stipulation between the parties in
Paragraphs 8 and 9. After Paragraph 7's chart sets out a guideline
sentencing range for each of the six criminal history categories,
all based on a total offense level of 17, Paragraph 8 states that
"[t]he parties do not stipulate as to any Criminal History Category
for Defendant." It would be entirely unnecessary to make such a
declaration unless the parties did stipulate to the other variable
in the chart's calculations, i.e., the total offense level of 17.
Paragraph 9 then goes on to state that "[t]he parties agree that
any recommendation . . . below or above the stipulated sentence
recommendation constitutes a material breach" of the Agreement.
(Emphasis supplied). From this language one naturally concludes
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that, if the district court selected a criminal history category
of I, the parties would be prohibited from arguing for a sentence
outside the range provided in the corresponding section of
Paragraph 7's chart.
We recently put the government on notice that its similar
reading of an analogous plea agreement was "anfractuous."
Almonte-Nuñez, 771 F.3d at 89. In Almonte-Nuñez, we were asked
whether "the defendant [was] foreclosed from appealing [because]
he was 'sentenced in accordance with the terms and conditions set
forth in the Sentence Recommendation provisions' of the
Agreement," pursuant to the agreement's waiver of appeal clause.
Id. at 88. Paragraph 7 ("Sentencing Guidelines Calculations") of
that agreement included a chart that calculated the total offense
level to be 25. Id. at 88. Paragraph 8 ("Sentence
Recommendation") then provided that "the defendant may argue for
the lower end of the applicable guideline range and the government
may argue for the higher end of the guideline range applicable to
defendant's Criminal History Category[.]" 3 We interpreted the
agreement to mean that "for the defendant to have been sentenced
in accordance with the terms of the sentence recommendation
provisions, he would have had to be sentenced within a [guideline
3
Although the chart only set out a sentencing range
corresponding to a criminal history category of I, the Agreement
also included a "no stipulation to criminal history category"
clause virtually identical to Marchena-Silvestre's Paragraph 9.
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sentencing range] derived from an offense level of 25." Almonte-
Nuñez, 771 F.3d at 88. Since the district court imposed a sentence
thirteen months higher than the high end of the guideline
sentencing range corresponding to a total offense level of 25 and
the highest possible criminal history category, "[i]t follow[ed],
as night follows day, that the sentences . . . were not in
conformity with the Agreement's sentence recommendation
provisions." Id. at 88.
The government also argued in Almonte-Nuñez, as it does
here, that "the defendant was sentenced in conformance with the
sentence recommendation provisions because those provisions did
not lock in a particular [guideline sentencing range]." Id. at
89. We responded by stating that "the Agreement unambiguously set
the offense level at 25 and barred arguments in favor of further
adjustments." Id. at 89. We similarly rejected the notion that,
since the district court retained ultimate sentencing discretion,
the government could shift its recommendation based on what
occurred at the hearing. Id. at 88-89. And we noted that, "[w]ith
minimal effort, the government could have drafted a waiver clause
having the effect that it unrealistically ascribes to the language
actually used in the Agreement." Id. at 89 n.1 (citing United
States v. Isom, 580 F.3d 43, 51 (1st Cir. 2009) (considering an
appeal waiver provision that applied “if the sentence imposed by
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the Court is within the guideline range determined by the Court or
lower.” (emphasis supplied) (internal quotation mark omitted))).
So, the Agreement itself tilts heavily in favor of the
interpretation that Marchena-Silvestre urges we adopt. The
problem is that his own counsel--who presumably well understood
the Agreement--failed to object when the government recommended a
sentence outside the stipulated ranges. Was this an unwitting
forfeiture? Or was it instead extrinsic evidence that the
Agreement should be read as the government applied it in fact
(albeit not as the government claims on appeal)? This would seem
to be an issue on which many of the points for each side are own-
goals.
We are tempted to rely on the standard of review as the
deciding factor, given the Supreme Court's guidance that "the
second prong of plain-error review . . . will often have some
'bite' in plea-agreement cases. Not all breaches will be clear
or obvious. Plea agreements are not always models of
draftsmanship, so the scope of the Government's commitments will
on occasion be open to doubt." Puckett v. United States, 556 U.S.
129, 142 (2009). But such a reliance offers little pragmatic
sense in this case. We are remanding for a new sentencing anyhow,
at which defense counsel this time will presumably insist on a
recommendation consistent with the chart in Paragraph 7 of the
Agreement. Of course, the prosecution has common sense, too. We
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cannot imagine that it will continue to use this same form to
document new plea agreements if it wants to argue for a sentence
in a range not reflected in the form. We note, too, that in
another case before us the prosecution appears not to have pressed
for an interpretation of the agreement like that for which it
advocates here. See United States v. Cirilo, No. 14-1793, at 2–3
(1st Cir. Sept. 24, 2015). The difference between the ranges for
which the parties respectively argue in this case is not great, so
prudent counsel may well err on the safe side rather than create
a problematic, preserved issue for appeal. In short, there is a
good chance that the issue will never arise again in this case,
nor in any future case should the government abandon its awkward
plea agreement template. We therefore exercise our discretion not
to finally adjudicate the issue at this stage of this continuing
proceeding.
Finally, to leave room for the government to reassess
its position on remand, we direct that a different judge shall
preside over Marchena-Silvestre's sentencing proceedings. The
possibility that the government breached the plea agreement, see
United States v. Kurkculer, 918 F.2d 295, 300 (1st Cir. 1990)
(stating this court's "repeatedly expressed . . . preference for
. . . resentencing before a different judge" when the government
breaches a plea agreement), and the fact that the judge appeared
to have made up his mind that Marchena-Silvestre deserved a six
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year imprisonment term without knowing the correct guideline
sentencing range, see Mawson v. United States, 463 F.2d 29, 31
(1st Cir. 1972) (per curiam) (explaining that "[i]t is difficult
for a judge, having once made up his mind, to resentence a
defendant"), counsel in favor of fresh eyes, "both for the judge's
sake, and the appearance of justice," id. See also United States
v. Hanono-Surujun, 914 F.2d 15, 20 (1st Cir. 1990) (ordering that
resentencing occur before a different judge due to the district
court's failure to comply with a federal rule and its sharp upward
variance from the sentencing guidelines).
III. Conclusion
Marchena-Silvestre's sentence is vacated and this matter
is remanded for resentencing before a different judge.
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