United States Court of Appeals For the First Circuit
No. 21-1599
UNITED STATES OF AMERICA,
Appellee,
v.
MARIO RAFAEL CASTILLO,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF PUERTO RICO
[Hon. Francisco A. Besosa, U.S. District Judge]
Before
Barron, Chief Judge, Montecalvo and Aframe, Circuit Judges.
Alejandra Bird-López, Research and Writing Specialist, with whom Eric Alexander Vos, Federal Public Defender, and Franco L. Pérez-Redondo, Assistant Federal Public Defender, were on brief, for appellant. Natasha K. Harnwell-Davis, Attorney, Appellate Section, Criminal Division, United States Department of Justice, with whom W. Stephen Muldrow, United States Attorney, Mariana E. Bauzá-Almonte, Assistant United States Attorney, Austin Berry, Trial Attorney, Child Exploitation and Obscenity Section, Kenneth A. Polite, Jr., Assistant Attorney General, and Lisa H. Miller, Deputy Assistant Attorney General, were on brief, for appellee.
January 28, 2025 AFRAME, Circuit Judge. For the second time,
defendant-appellant Mario Rafael Castillo appeals a 235-month
sentence imposed for engaging in abusive sexual conduct towards a
minor under the age of twelve. See 18 U.S.C. § 2244(a)(5). In
the earlier appeal, we vacated the sentence because the district
court committed a procedural error by incorrectly applying a
sentencing guidelines cross-reference, U.S.S.G. § 2A3.4(c)(1),
which increased the bottom of the advisory guideline range from 63
months to 235 months of imprisonment. See United States v.
Castillo, 981 F.3d 94 (1st Cir. 2020).
On remand, the district court acknowledged the
applicable lower guideline range but nevertheless imposed the same
235-month sentence. In this appeal, Castillo argues that we should
again vacate the sentence because the prosecutor breached the plea
agreement by giving only "lip service" to the government's promise
to recommend up to a 180-month sentence. We agree and thus vacate
the sentence and remand for further proceedings.
I.
We begin with an overview of the factual and procedural
backdrop, which we source from the "Joint Factual Basis" filed by
the parties in connection with the plea agreement, the plea
agreement itself, and the transcripts from the two sentencing
hearings. See United States v. Brown, 31 F.4th 39, 42 (1st Cir.
2022).
- 2 - From August 2011 through August 2014, Castillo lived
with his son, daughter-in-law, and two granddaughters, both of
whom were under twelve years old, on a United States military base
in Germany where his son was stationed. While residing with his
son and his son's family, Castillo sexually abused his
granddaughters. On one occasion, Castillo pulled down his older
granddaughter's pants and underwear and "licked the outside" of
her genitalia. On two other occasions, Castillo tried to pull
down this same granddaughter's pants but could not do so because
the granddaughter began wearing tight belts after the
just-described incident. Castillo also abused his younger
granddaughter during the same period by touching her inner thigh
in a sexual manner.
Castillo was charged with one count of aggravated sexual
abuse of a child under the age of twelve for his actions towards
his older granddaughter, see 18 U.S.C. §§ 2241(c), 3261(a)(1), and
one count of abusive sexual contact of a child under the age of
twelve for his actions towards his younger granddaughter, see 18
U.S.C. §§ 2244(a)(5), 3261(a)(1). Despite admitting to facts
pertaining to both granddaughters, Castillo pleaded guilty only to
the second count relating to his younger granddaughter.1 That
1 The government dismissed the count charging the conduct relating to the older granddaughter.
- 3 - offense was punishable by "any term of years [of imprisonment] or
for life." 18 U.S.C. § 2244(a)(5).
The plea agreement included two separate advisory
guideline calculations. The first, proposed by the government,
applied the criminal sexual abuse cross-reference that was the
subject of the defendant's first appeal, see Castillo, 981 F.3d at
97-98, to arrive at a total offense level of thirty-eight.
Applying a criminal history category of I, this calculation yielded
a guideline range of 235 to 293 months of imprisonment. The
second, offered by Castillo, did not apply the contested
cross-reference and thus proposed a lower guideline range of
sixty-three to seventy-eight months based on a total offense level
of twenty-six and a criminal history category of I. Though the
parties disputed the applicable guideline range, they stipulated
in the plea agreement that Castillo could seek a sentence of 78
months, and the government could argue for a sentence of "up to
180 months."
At the initial sentencing, the district court agreed
with the government's guideline calculation. It then declined to
adopt either the 78-month sentence requested by Castillo or the
180-month sentence requested by the government, reasoning that,
based on the 18 U.S.C. § 3553(a) sentencing factors, including the
need to promote respect for the law and public protection, "neither
sentence recommendation [was] . . . just and not greater than
- 4 - necessary in this case." Instead, the court imposed a 235-month
sentence.
As noted, Castillo appealed the sentence, and we held
that the sexual abuse cross-reference did not apply. Castillo,
981 F.3d at 106-07. Following remand, Castillo again requested a
seventy-eight-month sentence. This request was consistent with
the terms of the plea agreement and at the top of the
now-undisputed guideline range of sixty-three to seventy-eight
months.
Acknowledging the seriousness of the offense and the
district court's authority to sentence him above the guideline
range, Castillo asked for a more lenient sentence given (1) his
advanced age (he was seventy-two years old at the time of his
second sentencing); (2) his previous struggles in prison; (3) his
low likelihood of recidivism given his age and minimal criminal
history; and (4) the fact that he would be deported after
completing his sentence. Castillo argued that, given his age, 235
months of imprisonment would be "potentially a life sentence" and
"excessively harsh."
The prosecutor first responded to Castillo's age-related
arguments. Then, without any inquiries from the district court
about the relevant facts, the applicable law, or Castillo's
sentencing argument, he stated that he wanted to "make clear" that
he was "bound by the plea agreement" to refrain from "ask[ing] for
- 5 - more than 180 months." The prosecutor stressed, however, that the
plea agreement "did not bind the [district c]ourt," which was "free
to sentence anywhere it want[ed]." He also emphasized that there
was no limit on the sentence that could be requested by the victim
and her family.
The prosecutor later reminded the district court that it
had rejected as too lenient the parties' recommendations at the
earlier sentencing. And he stated that the "[c]ourt['s] sentence,
whatever it is, can aptly be supported by the facts and arguments
that the United States made in its sentencing memorandum filed in
2018."
The prosecutor also cast Castillo as a near-certain
recidivist for whom a long sentence -- if not effectively a life
sentence -- was necessary to protect the public. The prosecutor
first made such comments in response to Castillo's request for
leniency on the ground that he would be deported after completing
his sentence. The prosecutor stated that he was
a little bit worried about the idea of a sentence where [Castillo] could get out of prison and get deported, because, yes . . . [in] America, we don't have to deal with him anymore, but as a person of the world, as a citizen of the world, as Your Honor is, . . . I don't take any comfort in the idea of us offloading a guy with a severe sexual interest in children to a country like the Dominican Republic. I am very fearful for the children in that country.
- 6 - Later, the prosecutor stated that "[w]hen [Castillo] has the
opportunity, . . . it does not matter what his age is, he will
sexually offend against children. He is attracted to [children],
and he is going to act on his attraction whenever the opportunities
appear."
Castillo objected to the prosecutor's sentencing
argument on the ground that it amounted to a breach of the plea
agreement. He contended that the prosecutor was attempting "an
end run" around the government's formal recommendation of 180
months, explaining: "[The prosecutor] says 180, but then he is
basically playing [sic] lip service to it because he is telling
you [that] your original sentence is fine, you can do whatever
you want, . . . and all of the evidence justifies [the
previously-imposed] sentence . . . ."
In response, the prosecutor did not endorse the
180-month sentence as required by the plea agreement; rather, he
reiterated that he was only "permitted" to argue for a sentence
of 180 months. And he stated that the district court remained
"free and legally unimpeded to sentence [Castillo] to whatever
[the court] wants between probation and life." The prosecutor
observed that this "was true [at the prior sentencing], [and] it
is true today." To that end, he noted that this Court "did not
reprimand" the district court by stating that the 235-month
sentence "was an unreasonable sentence. . . [or] too harsh a
- 7 - sentence" but rather vacated the first sentence because of a
"procedural error that has nothing to do with the running room
that [the district court] has to sentence." The district court
then heard testimony from the victims. Only then, after the court
directly asked the prosecutor for his sentencing recommendation,
did the prosecutor affirmatively state that the "United States
recommends a sentence of 180 months."
The district court ultimately reimposed the 235-month
sentence, a 157-month upward variance from the top of the advisory
guideline range. It stated that the sentence was warranted
because "[t]he lifelong impact that [Castillo's] acts have
caused [his] granddaughter cannot possibly be measured." The
court continued: "The abuse is traumatic and is greatly
compounded by the fact that it was at the hands [of the victim's]
own grandfather who was with [his granddaughters] to take care of
them." Castillo again appealed.
II.
Castillo argues in this Court, as he did below, that we
should vacate the sentence because the prosecutor breached the
plea agreement. He contends that the prosecutor's statements were
"not made in response to any question posed or comment made by
the court," and "constitute[d] an invitation to impose a 235-month
sentence," which was "higher than [the government] agreed to
recommend per the plea agreement." Because Castillo objected in
- 8 - the district court on this same basis, we review his claim de
novo. Brown, 31 F.4th at 50.
Pleading guilty requires a defendant to waive
fundamental constitutional rights associated with a trial. United
States v. Clark, 55 F.3d 9, 12 (1st Cir. 1995). Waiving these
rights is "a weighty decision for [any] defendant." United States
v. Acevedo-Osorio, 118 F.4th 117, 127 (1st Cir. 2024). "[T]o
protect defendants from forsaking their fundamental trial rights
in exchange for empty promises" and to encourage "faith in the
plea-bargaining process, 'we "hold prosecutors to the most
meticulous standards of promise and performance"'" in the
execution of plea agreements. Id. (quoting Brown, 31 F.4th at
50).
In evaluating whether a prosecutor acted in accord with
a plea agreement, we are guided by "[t]raditional principles of
contract law." Brown, 31 F.4th at 50. Accordingly, "technical
compliance" with a plea agreement's terms does not suffice where
"the prosecutor's actions may implicitly 'undercut' the deal."
Acevedo-Osorio, 118 F.4th at 128 (quoting United States v.
Almonte-Nuñez, 771 F.3d 84, 89, 90 (1st Cir. 2014)). Such conduct
does not accord with the "implied obligation of good faith and
fair dealing" that accompanies all contracts. Id. (quoting United
States v. Frazier, 340 F.3d 5, 11 (1st Cir. 2003)). For this
reason, prosecutors breach a plea agreement when they pay only
- 9 - "lip service" to essential terms by "reaffirm[ing] a promise to
the defendant out of one side of [the] mouth" while simultaneously
"tr[ying] to subvert it out of the other side." Almonte-Nuñez,
771 F.3d at 91.
There is "[n]o magic formula" to determine whether a
prosecutor engaged in impermissible "lip service" or permissible
sentencing advocacy. United States v. Gonczy, 357 F.3d 50, 54
(1st Cir. 2004). We examine "the totality of the circumstances"
to ascertain whether "the net effect of the government's behavior"
was to "undermine[] the benefit of the bargain." United States
v. Cortés-López, 101 F.4th 120, 128 (1st Cir. 2024) (quoting
Frazier, 340 F.3d at 10). In conducting this examination, we
recognize that the government "is not obliged to present an
agreed[-upon] recommendation . . . with ruffles and flourishes."
Id. (quoting United States v. Montañez-Quiñones, 911 F.3d 59, 65
(1st Cir. 2018)). Nor do we require "any particular degree of
enthusiasm" for the recommendation. Id. (quoting United States
v. Canada, 960 F.2d 263, 270 (1st Cir. 1992)). We have been
clear, however, that it is impermissible for the prosecutor "to
inject material reservations" about the government's promise or
otherwise make "end-runs around" the agreement. Id. at 128-29
(first quoting Canada, 960 F.2d at 270; and then quoting Frazier,
340 F.3d at 10).
- 10 - While, as just mentioned, we have no "magic formula"
for determining when a prosecutor improperly provides only lip
service to a plea-agreement promise, identifying the context in
which the prosecutor made the contested argument is an essential
ingredient to the analysis. Because context is key, we have
declined to find breach where a prosecutor's comments come at the
"court's urging" or "in direct response to defense counsel's
attempt to put an innocent gloss" on relevant facts. United
States v. Saxena, 229 F.3d 1, 7 (1st Cir. 2000). But we have
cautioned that when a prosecutor "gratuitously offers added detail
garbed in implicit advocacy, a court might well find that the
prosecutor is actually seeking a result in a manner that breaches
the agreement." United States v. Miranda-Martinez, 790 F.3d 270,
275 (1st Cir. 2015); see also Cortés-López, 101 F.4th at 129, 132
(finding breach based on "the government's unsolicited statement"
made "sua sponte").
Here, we identify three important contextual facts
before turning to the propriety of the prosecutor's sentencing
argument. First, the prosecutor's initial argument was not in
response to any questions from the district court about the
underlying facts, the pending legal issues, or Castillo's
argument. Second, in Castillo's sentencing argument, which came
before the prosecutor's, Castillo acknowledged the court's power
to sentence him above the applicable sixty-three to
- 11 - seventy-eight-month guideline range. Thus, there was no dispute
about the district court's sentencing authority when the
prosecutor spoke. Third, the sentencing hearing occurred after
the district court had previously imposed a 235-month sentence
based on the § 3553(a) sentencing factors. Accordingly, the court
already had once imposed a sentence above the government's
promised recommendation. That fact, however, does not change the
government's obligation to honor its agreement in a way that was
"not impermissibly equivocal, apologetic, or begrudging." United
States v. Davis, 923 F.3d 228, 239 (1st Cir. 2019).
With that context in mind, we turn to the prosecutor's
argument. We acknowledge that the prosecutor complied with the
letter of the plea agreement by stating that "the United States
recommends a sentence of 180 months" and that he was "not asking
for anything above 180 months." But technical compliance is not
enough. United States v. Marín-Echeverri, 846 F.3d 473, 478 (1st
Cir. 2017) ("[I]n assessing compliance with a plea agreement, we
frown on technical compliance that undercuts the substance of the
deal."). The prosecutor undermined his formal recommendation with
several statements suggesting that he regretted the government's
promise and favored reimposition of the 235-month sentence.
In this regard, after stating that it was of "no moment"
that the sentence imposed might result in Castillo "dying in
prison," the prosecutor twice stated that he was "bound by the
- 12 - plea agreement" and therefore could not "ask for more than 180
months." He later reiterated that he was "permitted" to argue
for only 180 months. These comments, given their unprompted
nature, suggest that the prosecutor wanted the court to impose a
longer sentence but was restricted from explicitly requesting one
by the parties' prior agreement.
Throughout the hearing, the prosecutor repeatedly and
without prompting emphasized the district court's authority to
impose a harsher sentence than the government's recommendation,
the victim's right to request a higher sentence, and the
justification for such a sentence:
● "We were bound by [the plea agreement], but we did not bind the [c]ourt in any kind of agreement, and the [c]ourt is free to sentence anywhere it wants, and the victims are free to argue for anything that they want [] as well."
● "Your Honor stated [at the first sentencing] that [the court] had considered all of the other sentencing factors . . . and that neither sentence recommendation . . . was just[,] . . . [which] resulted in . . . the sentence that you imposed at that time."
● "This [c]ourt['s] sentence, whatever it is, can aptly be supported by the facts and arguments that the United States made in its sentencing memorandum filed in 2018."
● "Your Honor is still free and legally unimpeded to sentence to whatever he wants between probation and life. That was true [at the first sentencing], it is true today."
● "The First Circuit Court of Appeals did not reprimand Your Honor and say this was an
- 13 - unreasonable sentence . . . or that it was too harsh a sentence . . . ."
● "We are here on a procedural error that has nothing to do with the running room that Your Honor has to sentence."
In addition, the prosecutor made multiple statements
suggesting that public safety requires Castillo to never leave
prison. He told the court that he was "worried about the idea of
a sentence where [Castillo] could get out of prison and get
deported" because he was "very fearful for the children" in the
Dominican Republic, Castillo's home country. He also stated that,
regardless of his age, Castillo "will sexually offend against
children [because] [h]e is attracted to them, and he is going to
act on his attraction whenever the opportunities appear."
In our view, the prosecutor's sentencing presentation
constitutes a clear example of paying lip service to the plea
agreement while giving a wink and nod to the imposition of a
harsher sentence. See Gonczy, 357 F.3d at 54. Even though
Castillo had already acknowledged the district court's ability to
upwardly vary from the guideline recommendation, the prosecutor
emphasized (1) the district court's authority to sentence Castillo
more harshly than the government's formal recommendation; (2) that
regardless of the government's recommendation, the victim and her
family could lawfully request a sentence above 180 months; (3) that
in the first appeal, this Court had not criticized the initial
- 14 - 235-month sentence as being "too harsh"; and (4) that Castillo's
conduct was severe enough to support whatever sentence the district
court selected. Added to this mix, the prosecutor remarked that
he was "fearful for the children" should the defendant ever be
released from prison and that Castillo was "going to act on his
[sexual] attraction [to children] whenever the opportunities
These comments leave the unmistakable impression that
the prosecutor wanted the district court to impose a sentence
longer than 180 months. The prosecutor made clear that the court
had the power to impose such a sentence again, the victim and her
family favored such a sentence, and the court would be justified
in so sentencing. That was not the government's promise. This
case thus presents an instance of a prosecutor "reaffirm[ing] a
promise to the defendant out of one side of [his] mouth" while
simultaneously "tr[ying] to subvert it out of the other side."
Almonte-Nuñez, 771 F.3d at 91; see Gonczy, 357 F.3d at 54
(concluding that the plea agreement was breached where the
prosecutor's "initial recommendation . . . was undercut, if not
eviscerated, by [her] substantive argument to the district
court").
The government contends otherwise. It says that the
prosecutor's comments about the district court's power to impose
an above-guidelines sentence were necessary to support the
- 15 - 180-month recommendation since that recommendation was itself
above the advisory guideline range of sixty-three to seventy-eight
months. But, as we have already explained, the court's power was
undisputed given Castillo's recognition that the court could
impose "an upward variance" from the guideline range.
Nevertheless, the prosecutor emphasized the court's authority to
sentence "anywhere it wants" almost every time he referenced the
180-month sentence without once mentioning the advisory guideline
range. Thus, the prosecutor's reference to the court's sentencing
authority was the proverbial wink towards a sentence exceeding 180
months, not an argument for exceeding the top of the guideline
range.
The government also defends the prosecutor's emphasis on
the fact that this Court did not rule that the 235-month sentence
was substantively unreasonable in resolving the first appeal.
Specifically, the government contends the prosecutor was only
satisfying its duty to furnish the district court with "relevant
information" since the contours of this Court's remand were
relevant to the resentencing. See Frazier, 340 F.3d at 12-13.
But the district court did not ask any questions about
this Court's earlier decision and the prosecutor mentioned the
decision only in response to Castillo's
breach-of-the-plea-agreement argument. The prosecutor emphasized
the life-sentence maximum and then highlighted that this Court had
- 16 - not "reprimand[ed]" the district court's imposition of a 235-month
sentence for being "too harsh." Given the government's agreement
to recommend a 180-month sentence, this argument was out of bounds.
The government further contends that the prosecutor's
statements regarding Castillo's likelihood of reoffending were
merely a response to Castillo's argument for age-based leniency,
and thus supported the prosecutor's 180-month recommendation. In
context, we disagree. The prosecutor expressed concern "about the
idea of a sentence where [Castillo] would get out of prison and
get deported" and stated that it was of "no moment" whether
Castillo would die in prison without reference to the 180-month
sentence the government promised to recommend. He further stated
that "if given the opportunity, it does not matter what
[Castillo's] age is, he will sexually offend against children."
Finally, the government says that the prosecutor never
endorsed a 235-month sentence. That is true. But our caselaw
permits a successful breach claim where a prosecutor pays mere
"lip service" to a plea-agreement promise. See, e.g., Gonczy, 357
F.3d at 54. For the reasons explained above, the prosecutor
suggested that the district court reimpose the same 235-month
sentence without explicitly saying so. Thus, this is a
circumstance where the "prosecutor . . . undercut a plea agreement
- 17 - while paying lip service to its covenants." Almonte-Nuñez, 771
F.3d at 90-91.2
III.
Based on the prosecutor's breach, Castillo requests that
we remand for resentencing before another judge. That is an
appropriate remedy in these circumstances. See Clark, 55 F.3d at
15. We therefore vacate the defendant's sentence and remand for
further proceedings consistent with this opinion before a
different judge.3
In reaching this result, we recognize and do not minimize
the difficulty that a second remand -- and third sentencing
hearing -- will likely impose on the victims and their family in
this case, who have now testified in two separate sentencing
proceedings. But we emphasize that it is precisely out of concern
for such hardship -- in addition to a defendant's constitutional
2 The government also tells us that the cases cited by the defendant, Canada, 960 F.2d at 269, and Gonczy, 357 F.3d at 54, are distinguishable. But that means little when the "lip-service" analysis is so context-specific. As we explain above, the record demonstrates that the prosecutor tipped his cap to the reimposition of a 235-month sentence despite the government's promise to recommend no more than 180 months. 3 Because of our disposition, we do not reach Castillo's additional claims of error, including whether the sentence imposed is otherwise procedurally or substantively reasonable.
- 18 - rights -- that prosecutors who enter into plea agreements must
fastidiously uphold their end of the bargain.
So ordered.
- 19 -