United States v. Castillo-Torres ( 2021 )

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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