Dominguez-Rivera v. Hazelwood

• Court: Court of Appeals for the First Circuit
• Decided: December 1, 2022
• Docket: 21-1474P
• Status: Published

Opinion

United States Court of Appeals For the First Circuit

No. 21-1747

UNITED STATES,

Appellee,

v.

ÁNGEL RAMOS-CARRERAS,

Appellant, Defendant.

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF PUERTO RICO

[Hon. Francisco A. Besosa, U.S. District Judge]

Before

Kayatta, Howard, and Thompson, Circuit Judges.

José D. Rodríguez, with whom Eric Alexander Vos, Federal Public Defender, and Franco L. Pérez-Redondo, Assistant Federal Public Defender, were on brief, for appellant.

Gregory B. Conner, Assistant United States Attorney, with whom W. Stephen Muldrow, United States Attorney, and Mariana E. Bauzá-Almonte, Assistant United States Attorney, were on brief, for appellee.

December 1, 2022 THOMPSON, Circuit Judge. The defendant Ángel Ramos-

Carreras ("Ramos") challenges the sentence the district court

judge imposed after revoking his term of supervised release.

Finding plain error, we reverse and remand for resentencing.

BACKGROUND

First, some background to set the context: In 2011,

pursuant to a plea agreement, Ramos received a five-year prison

sentence and eight years of supervised release for violating 21

U.S.C. §§ 841(a)(1), 846, 860, conspiracy to distribute narcotics

(here, cocaine). Fast forward to 2020, when Ramos was serving his

term of supervised release. In October, local authorities arrested

him "for an investigation on lewd acts," and charged him with

violating Article 133 of the Puerto Rico Penal Code.1 While those

proceedings were underway in the Commonwealth court, the U.S.

Probation Office filed a motion in the federal district court to

notify it about the Commonwealth's prosecution and to allege Ramos

1 Article 133 of the Puerto Rico Penal Code classifies the following conduct as a third-degree felony: "Any person who without the intention to consummate the crime of sexual assault [by penetration] submits another person to an act that tends to awaken, excite or satisfy the sexual passion or desire of the accused, under any [one of six enumerated] circumstances," including the age of the victim as less than 16 years. United States v. Cordero-Rosario, Crim. No. 11-556, 2018 WL 8798610, at *2 & n.5 (D.P.R. Nov. 8, 2018), report and recommendation adopted, 2019 WL 3137453 (D.P.R. July 15, 2019) (quoting P.R. Laws Ann. Tit. 33, § 4772).

- 2 - had violated the "shall not commit another federal, state, or local

crime" condition of his supervised release.

Ramos waived the preliminary hearing and a magistrate

judge found probable cause that Ramos had violated this condition

of release as alleged in the probation officer's motion. At

sentencing -- now before a district court judge -- all agreed the

guideline sentencing range for this supervised-release-condition

violation was four to ten months. Ramos requested nine months,

arguing the initial charge had been ultimately reduced to an

attempt for "one incident with a 15-year-old step-daughter,

touching over her clothes." The government requested three years

(which reflected the maximum sentence allowed pursuant to 18 U.S.C.

§ 3583(e)(3)) based on Ramos' perpetration of a "crime . . .

against nature" and because Ramos had been given "a break" for an

earlier revocation of supervised release for a "minor violation"

(when he'd failed to report to probation in the early days of the

COVID-19 pandemic). The district judge revoked Ramos' term of

supervised release and imposed a three-year term of imprisonment

to be followed by a three-year term of supervised release.

Before announcing the sentence, the district judge

acknowledged that Ramos had signed a plea agreement in the

Commonwealth court for attempting to commit lewd acts in violation

of Article 133 and that Ramos had been sentenced by the

Commonwealth court to five years imprisonment to be served

- 3 - consecutively to any other sentence. The district judge commented

that the Commonwealth's sentence "was with aggravating factors but

the minority of the victim was eliminated" and that "[t]he attempt

was against his own 15-year-old-daughter whom he had registered as

his daughter when she was born. He touched and sucked on her left

breast and then touched and squeezed her vagina over her clothing."

At the end of the hearing, Ramos' counsel stated a broad

objection "to the [c]ourt imposing the absolute maximum sentence

as being substantively, procedurally unreasonable." This was the

only objection to the length of the sentence raised during the

hearing. A week or so later, Ramos filed a motion for

reconsideration on the basis that the court may have misunderstood

Ramos' relationship to the complaining witness as that of a

biological father-daughter relationship when she was not actually

biologically related to Ramos, and as a result the "violation of

trust" was "not as aggrieved as the court may have understood."2

In the motion, Ramos described "the facts of th[e Commonwealth's]

conviction [as] based on Mr. Ramos's admitted behavior of touching

a fifteen-year-old female in a sexual manner for sexual

gratification." The district judge summarily denied the motion.

2 Ramos had been dating the complaining witness' mother when she was born. He agreed to be listed as her father on the birth certificate and provided support to them during his relationship with her mother and for a period of time after they no longer lived all together.

- 4 - DISCUSSION

On appeal, Ramos asserts that his upwardly variant

sentence is procedurally and substantively unreasonable, focusing

primarily on the district judge's statement and use of graphic

allegations of the offense from the Commonwealth court's record

when these asserted details were not part of the record before

him. Before we consider this argument, however, we note that Ramos

has not properly preserved it for our review. We typically review

the reasonableness of a criminal sentence under the abuse-of-

discretion standard. United States v. Millán-Isaac, 749 F.3d 57,

66 (1st Cir. 2014) (citing Gall v. United States, 552 U.S. 38, 51

(2007)). But merely stating a broad objection to the procedural

and substantive reasonableness of a sentence at the end of a

sentencing hearing does not preserve Ramos' specific arguments

before us about the district judge's rehearsal of the factual

allegations because, during the hearing, Ramos did not raise any

objection to the court's description of the alleged conduct for

his Commonwealth court conviction. See United States v. Castillo,

981 F.3d 94, 101 (1st Cir. 2020) ("[S]uccessful preservation of a

claim of [sentencing] error for our consideration on appeal

requires that a party object with sufficient specificity such that

the district court is aware of the claimed error."); United States

v. Soto-Soto, 855 F.3d 445, 448 n.1 (1st Cir. 2017) ("A general

objection to the procedural reasonableness of a sentence is not

- 5 - sufficient to preserve a specific challenge to any of the

sentencing court's particularized findings. To preserve a claim

of error for appellate review, an objection must be sufficiently

specific to call the district court's attention to the asserted

error." (citations omitted)). We therefore find Ramos' particular

argument forfeited and proceed to review it for plain error only.

See Soto-Soto, 855 F.3d at 448. "Under the plain error standard,

the appellant must show '(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 of judicial proceedings.'" Id.

(quoting United States v. Duarte, 246 F.3d 56, 60 (1st Cir. 2001)).

"[A] district court has broad discretion at sentencing

to consider information pertaining to the defendant and the

defendant's offense conduct." Millán-Isaac, 749 F.3d at 69 (citing

United States v. Zavala–Martí, 715 F.3d 44, 54-55 (1st Cir. 2013)).

That said, it is axiomatic "that a convicted defendant has the

right to be sentenced on the basis of accurate and reliable

information, and that implicit in this right is the opportunity to

rebut the . . . evidence and the information" to be considered by

the court. United States v. Rivera-Rodríguez, 489 F.3d 48, 53

(1st Cir. 2007) (quoting United States v. Blackwell, 49 F.3d 1232,

1235 (7th Cir. 1995)). A district court's use of new information

(meaning information not already found in the district court's

- 6 - record) that is significant (meaning "materially relied on" by the

district court in determining a sentence) can be reversible error.

Id. at 54-56; see Millán-Isaac, 749 F.3d at 73; United States v.

Berzon, 941 F.2d 8, 10 (1st Cir. 1991). "Although revocations of

probation, parole, or supervised release are not considered part

of a criminal prosecution, they nevertheless entail a loss of

freedom and a deprivation of liberty" and as such include the same

due process and fairness considerations. United States v. Correa-

Torres, 326 F.3d 18, 22 (1st Cir. 2003).

We zero in on Ramos' contention that the district judge

procedurally erred by improperly relying on factual allegations

that were not in the record when he imposed the upwardly variant

sentence -- that Ramos "touched and sucked on [the victim's] left

breast and then touched and squeezed her vagina over her clothing."

Ramos posits these asseverations came from the initial charging

document filed in the Commonwealth court -- which would have been

written in Spanish -- and so represents a violation of the Jones

Act.3 The government suggests we can rule out the district judge's

reliance on the Spanish-language charging document because the

The district court's consideration and use of an 3

untranslated Spanish-language document at sentencing is a reversible error. United States v. Reyes-Rivas, 909 F.3d 466, 469-70 (1st Cir. 2018) (citing 48 U.S.C. § 864, which provides that "[a]ll pleadings and proceedings in the United States District Court of the District of Puerto Rico shall be conducted in the English language")).

- 7 - document is not in the record and the district judge did not

explicitly mention it during the sentencing hearing. The source

of the asserted details then, suggests the government, must be

from a conversation with the probation officer.

Because the source of the district judge's knowledge of

these purported facts is not revealed in the record, we cannot

conclude that the district court committed a Jones Act violation.

As the government suggests, the district judge could have learned

the alleged information from a conversation with the probation

officer. But this explanation has its own problem: As the

government admits, the district court may not rely on new facts

learned in its conversations with the probation officer that are

relevant to -- and indeed become part of -- the sentencing calculus

if not revealed beforehand. See United States v. Marrero-Pérez,

914 F.3d 20, 25 (1st Cir. 2019) ("Ex parte communication between

the probation officer and the court is usually permissible where

the court is merely seeking advice or analysis . . . and the

probation officer and the court may consult privately about certain

issues incident to criminal sentencing, [b]ut where the probation

officer discloses new facts that bear on the judge's sentencing

calculus, the general rule requires disclosure to the defense in

advance of the sentencing hearing and an opportunity to subject

the new material to whatever adversarial testing may be

appropriate." (internal quotation marks and citations omitted)).

- 8 - While the record does not identify the source of the

extra-record allegations about the incident between Ramos and the

minor child, the district judge had to learn the allegations from

somewhere and someone because he recited these purported details

on the record as facts related to the substantive conduct on which

the Commonwealth court conviction was based. Contrary to the

government's contention that the district judge's statement did

not reveal "new facts" because Ramos did not object or express

surprise about them, the averments were brand new to the record in

the revocation proceedings. The record at the time of sentencing

includes no indication that he admitted to more than attempted

lewd behavior, a category that includes misconduct far less

salacious than that described by the extra-record allegations on

which the district court relied. The motion notifying the court

of the alleged violation simply stated that local law enforcement

picked Ramos up "for an investigation on lewd acts" and that a

week later the probation officer confirmed the original version of

the facts with the agent in charge of the investigation. At the

hearing, the only indication of detail by Ramos' counsel about the

prosecution in the Commonwealth court was when he stated that the

"initial charge was reduced to an attempt which I understand from

talking to different State Public Defenders is fairly unusual.

There was one incident with a 15-year-old step daughter, touching

over her clothes." Moreover, Ramos had no notice that the district

- 9 - judge was in the loop on any of the purported details of the

initial charge against him in the Commonwealth court, information

about the investigation, or the conduct to which he ultimately

pled guilty. He therefore had no notice that the district judge

might take any allegations into account other than those contained

in documents from probation or admitted to in court when fashioning

the sentence for his violation of the condition that he would not

commit another crime during his term of supervised release.

Reciting extraneous non-record avowals without identifying the

source or providing notice to Ramos that these asserted details

would be considered in determining his sentence for the condition

at issue was a clear error.4 See Millán-Isaac, 749 F.3d at 73

(holding that when the defendant did not have notice of "extra-

record information," the district court's use of that information

to fashion the defendant's sentence amounted to a reversible

error); accord Berzon, 941 F.2d at 10 (remanding for clarification

when the defendant had not been provided notice of extra-record

factual details that the sentencing judge may have considered when

fashioning the sentence imposed).

4 Ramos' statement in his motion for reconsideration -- "the facts of th[e Commonwealth's] conviction [as] based on Mr. Ramos' admitted behavior of touching a fifteen-year-old female in a sexual manner for sexual gratification" -- does not affect our conclusion on this prong. The statement -- made after the sentencing hearing -- simply parrots the broad offense described in the statute of conviction. See Cordero-Rosario, 2018 WL 8798610, at *2 & n.5; P.R. Laws Ann. Tit. 33, § 4772.

- 10 - Whether this clear error affected Ramos' substantial

rights requires deciding whether the "error was prejudicial in the

sense that 'it must have affected the outcome of the district court

proceedings.'" United States v. Gilman, 478 F.3d 440, 447 (1st

Cir. 2007) (quoting United States v. Olano, 507 U.S. 725, 734

(1993)). We conclude that the inflammatory details about Ramos'

alleged conduct affected the district judge's sentencing decision

because it is clear he did not ignore this provocative, extra-

record characterization of the incident when he imposed the 26-

month upward variance from the high end of the undisputed

guidelines range. That he articulated these specific, vivid

allegations immediately before imposing the sentence shows they

were clearly at the front of his mind and indicates he was

justifying the upward variance at least in part (if not completely)

with them. See Millán-Isaac, 749 F.3d at 73 (holding the court's

"demonstrated interest" in the extra-record information indicated

a reasonable likelihood that the "erroneous consideration" of this

information affected the court's sentencing decision). Finally,

as we have noted before, the disregard for a defendant's right to

notice of the information on which the district court will base a

sentence imposed "cannot help but have a denigrating effect on the

fairness, integrity, and public reputation of judicial

proceedings." Id. (quoting United States v. Mangone, 105 F.3d 29,

36 (1st Cir. 1997)). We therefore conclude that the district

- 11 - judge's use of the alleged facts from the Commonwealth court's

prosecution of the charge against Ramos to determine Ramos'

sentence was plain error.

CONCLUSION

Ramos' sentence is vacated and remanded.5 The Clerk of

the District Court is directed to assign this case to a different

judge on remand for prompt resentencing based on the existing

factual record. See 28 U.S.C. § 2106.

5 Ramos makes other arguments about the procedural unreasonableness of his sentence but we need not weigh in on the merit of those arguments because we are already remanding for resentencing based on the extra-record allegations used by the district court. In addition, Ramos mentions that his sentence is substantively unreasonable but does not develop any argument on this front so this part of his challenge is waived. See United States v. Pérez-Vásquez, 6 F.4th 180, 204 n.18 (1st Cir. 2021), cert. denied sub nom. Enamorado v. United States, 142 S. Ct. 1211 (2022).

Ramos also briefs a second issue, arguing that the district judge plainly erred when he imposed the following three special conditions of supervised release: (1) prohibiting employment in places where he could have contact with children; (2) mandating compliance with any sex-offense-specific testing arranged by the Probation Officer; and (3) prohibiting contact with any child under the age of 18 unless specifically allowed by the Probation Officer. The parties can explore these issues on remand, assuming they remain relevant. See United States v. Torres-Meléndez, 28 F.4th 339, 340-41, 342 n.4 (1st Cir. 2022) (remanding for resentencing because the district court abused its discretion when it considered prior arrests not resulting in convictions to vary upward from the guidelines, stating "[t]he parties can pursue on remand the other issues suggested in their briefs that . . . we need not explore today (assuming those other issues remain relevant)").

- 12 -