United States Court of Appeals For the First Circuit
No. 20-1245
UNITED STATES OF AMERICA,
Appellee,
v.
JOSUÉ XAVIER CHEVERES-MORALES,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF PUERTO RICO
[Hon. Francisco A. Besosa, U.S. District Judge]
Before
Montecalvo, Selya, and Thompson, Circuit Judges.
John E. Mudd, with whom Law Offices of John E. Mudd was on brief, for appellant. David C. Bornstein, Assistant United States Attorney, with whom W. Stephen Muldrow, United States Attorney, Mariana E. Bauzá- Almonte, Assistant United States Attorney, Chief, Appellate Division, and Gregory B. Conner, Assistant United States Attorney, were on brief, for appellee.
September 29, 2023 SELYA, Circuit Judge. In this appeal, we train the lens
of our inquiry on a claim of error not timely raised by defendant-
appellant Josué Xavier Cheveres-Morales. Because this unpreserved
claim involves a violation of the mandate rule and because the
equities encourage a departure from the party presentation
principle, we hold that we may consider the claim sua sponte.
Undertaking that consideration, we conclude that the district
court's use, at resentencing, of convictions and sentences
occurring after the defendant's original sentencing to increase
his guideline sentencing range was contrary to our holding in
United States v. Ticchiarelli, 171 F.3d 24, 35 (1st Cir. 1999).
Finding this error to be plain, we vacate the defendant's new
sentence and remand for resentencing consistent with this opinion.
I
We briefly rehearse the background and travel of the
case. Inasmuch as this appeal follows a guilty plea, we would
typically "glean the relevant facts from the change-of-plea
colloquy, the unchallenged portions of the presentence
investigation report (PSI Report), and the record of the
disposition hearing." United States v. Vargas, 560 F.3d 45, 47
(1st Cir. 2009). Here, however, we add facts gleaned from the
record of the defendant's first appeal (which was cut short
following the government's motion to remand). In February of 2017, a federal grand jury sitting in the
District of Puerto Rico returned a superseding indictment, which
— as relevant here — charged the defendant with one count of
attempted carjacking, see 18 U.S.C. § 2119(1); one count of
carjacking, see id.; and two counts of using, carrying, and
brandishing a firearm during and in relation to a crime of
violence, see 18 U.S.C. § 924(c)(1)(A)(ii). Although the
defendant initially maintained his innocence, he later pleaded
guilty to three of the charged counts.1
After accepting the defendant's guilty plea, the
district court ordered the preparation of a PSI Report. Of
particular pertinence for present purposes, the probation office
listed two arrests within the portion of the PSI Report chronicling
the defendant's criminal history. The first was a 2011 arrest
for, inter alia, possession of a firearm without a license. The
defendant was a juvenile at the time, and he completed a diversion
program. The second was a 2017 arrest for, inter alia, aggravated
robbery and possession of a firearm without a license. This arrest
resulted in six charges — all of which were subsequently dismissed
(without a merits adjudication) pursuant to Puerto Rico Rule of
Criminal Procedure 64. Neither the 2011 arrest nor the 2017 arrest
resulted in any criminal history points, leaving the defendant
1 Consistent with the plea agreement, the remaining count was later dismissed by the district court. with a clean slate and a placement in criminal history category
(CHC) I.
The PSI Report grouped the two carjacking counts. See
USSG §3D1.1. Based on a total offense level of twenty-six and a
CHC of I, the guideline sentencing range for those two counts of
conviction was sixty-three to seventy-eight months' imprisonment.
The guideline sentencing range for the firearm count was eighty-
four months' imprisonment. See 18 U.S.C. § 924(c)(1)(A)(ii); USSG
§2K2.4(b). The statute of conviction, though, called for that
sentence to run consecutive to any sentence imposed on the
carjacking counts. See 18 U.S.C. § 924(c)(1)(D)(ii).
The district court convened the disposition hearing on
July 27, 2018. The defendant sought sentences at "the lower end
of the guidelines." The government — in line with its commitment
under the plea agreement — entreated the district court to impose
concurrent sentences of sixty-three months on the two carjacking
counts and a consecutive sentence of eighty-four months on the
firearm count.
After the defendant allocuted, the district court noted
the defendant's criminal history, describing the two arrests
mentioned above and a case purportedly pending in a Puerto Rico
court involving two aggravated robberies and two firearm violations.2 The court declared that the defendant "ha[d] shown a
pattern of committing the same type of violent crime for which he
has been arrested several times." Because "[i]t [was] evident
that [the defendant] ha[d] a complete disregard for the law," the
court varied upward and imposed concurrent sentences of eighty-
seven months on the two carjacking counts and a consecutive
sentence of 108 months on the firearm count.
The defendant appealed his sentence. Following
submission of the defendant's opening brief in this court, the
government filed an unopposed motion to remand the case to the
district court for resentencing. Citing our decision in United
States v. Marrero-Pérez, 914 F.3d 20 (1st Cir. 2019),3 the
government conceded that the sentencing court had erred when it
"considered the mere fact that [the defendant] had prior arrests
in order to impose an upward[ly] variant sentence." At the same
time, the government conceded that the sentencing court had erred
when it "considered alleged pending state charges which were never
included in the [PSI Report] . . . or any motions." Taking account
of these confessed errors, we granted the motion to remand in an
2 That case was not mentioned in the PSI Report and its dimensions are unclear. 3 In Marrero-Pérez, we held that a sentencing court should give "no weight . . . to arrests not buttressed by convictions or independent proof of conduct." 914 F.3d at 22; see United States v. Vélez-Andino, 12 F.4th 105, 113 n.1 (1st Cir. 2021); United States v. Díaz-Lugo, 963 F.3d 145, 153 (1st Cir. 2020). unpublished judgment. We henceforth refer to that judgment as
"Cheveres I."
Prior to resentencing, the probation office prepared a
second PSI Report. The second PSI Report — like the first — listed
the defendant's two prior arrests under his criminal history. By
this time, though, the Commonwealth of Puerto Rico had successfully
appealed the dismissal of the six counts related to the 2017
arrest, secured their reinstatement, and convicted the defendant
on two of the six counts. On this basis, the second PSI Report
added three points to the defendant's criminal history score,
placing him in CHC II and elevating his guideline sentencing range
on the two carjacking counts to seventy to eighty-seven months'
imprisonment. The defendant did not object to any aspect of the
second PSI Report.
The district court convened a second disposition hearing
on February 11, 2020. Both the defendant and the government sought
sentences at "the lower end of the guidelines" for the two
carjacking counts and an eighty-four month sentence for the firearm
count.
The district court did not oblige. It observed that
"[s]ome of the State charges, which were pending at the time of
the original sentence, resulted in convictions of a violent
offense. Consequently, they can be relied upon for this resentence." The court thus adopted the guideline calculations
limned in the second PSI Report.
When all was said and done, the court determined that
the defendant "began to commit serious violent crimes when he was
16 years old. He had been given the opportunity to benefit from
a diversion program but continued with his criminal activities."
An upwardly variant sentence, the court concluded, was "a sentence
sufficient but not greater than necessary." The court proceeded
to impose concurrent sentences of 132 months' imprisonment on the
two carjacking counts and a consecutive sentence of 108 months'
imprisonment on the firearm count. The defendant did not lodge
any specific objection either to the court's use of intervening,
post-sentencing convictions and sentences or to the elevated
guideline sentencing range.
This timely appeal followed.
II
In his opening brief in this court, the defendant raised
two claims of error. First, he argued that the resentencing court
had repeated its earlier mistake by again considering arrests that
had not resulted in convictions. Second, he argued that the
resentencing court had imposed a substantively unreasonable
sentence. He did not, however, challenge the resentencing court's
use of intervening, post-sentencing convictions and sentences to
boost his guideline sentencing range. After the parties had filed their briefs, we ordered
supplemental briefing:
[A]ddressing . . . whether the district court erred in effectuating this court's mandate on remand by assessing criminal history points for and otherwise considering for sentencing purposes convictions and sentences that post- dated [the defendant's] initial sentencing. . . . whether any relevant claim of error is forfeited or waived and . . . whether this court can consider any such claim sua sponte.
The parties subsequently filed their supplemental briefs: the
defendant belatedly sought consideration of the putative
Ticchiarelli error, and the government contended that any such
claim of error was waived.
A
We start by grappling with the question of whether we —
as an appellate tribunal — may consider sua sponte a claim of error
that was not raised by the defendant either in the court below or
in his opening brief in this court. Because the claim of error
involves a violation of the mandate rule, we answer this question
in the affirmative.
Normally, a party waives a claim of error by failing to
raise it in the court below. See Teamsters Union, Local No. 59 v.
Superline Transp. Co., 953 F.2d 17, 21 (1st Cir. 1992). Similarly,
a party may waive a claim of error by failing to raise it in his
opening brief in this court. See Sandstrom v. ChemLawn Corp., 904 F.2d 83, 86 (1st Cir. 1990). Even so, we have excused waiver
"under exceptional circumstances . . . to forestall a miscarriage
of justice." Sindi v. El-Moslimany, 896 F.3d 1, 28 (1st Cir.
2018); see Nat'l Ass'n of Soc. Workers v. Harwood, 69 F.3d 622,
627 (1st Cir. 1995). When deciding whether to invoke this
exception, our decision almost always turns on the equities of a
given case. See Sindi, 896 F.3d at 28 (listing factors that may
be "given substantial weight" in such an analysis).
In this case, though, the circumstances are somewhat
different. The perceived error implicates the authority of this
court's earlier mandate, and we — not a party — seek to raise it
sua sponte. The question is whether we may do so.
Although this is a question of first impression in this
circuit, we have stated in dictum that "a court may raise law of
the case issues sua sponte." United States v. Matthews, 643 F.3d
9, 12 n.2 (1st Cir. 2011); see United States v. Wallace, 573 F.3d
82, 90 n.6 (1st Cir. 2009). And other courts of appeals that have
tackled this question have so held. See United States v. Anderson,
772 F.3d 662, 669 (11th Cir. 2014) (holding that "the law-of-the-
case doctrine may be raised by the court sua sponte" (emphasis in
original)); Maxfield v. Cintas Corp., No. 2, 487 F.3d 1132, 1135
(8th Cir. 2007) (same); see also DiLaura v. Power Auth. of State
of N.Y., 982 F.2d 73, 76 (2d Cir. 1992) (raising law of the case
issue sua sponte). The law of the case "doctrine posits that when a court
decides upon a rule of law, that decision should continue to govern
the same issues in subsequent stages in the same case." Arizona
v. California, 460 U.S. 605, 618 (1983). As we have repeatedly
explained, the law of the case doctrine has two branches. See,
e.g., Wallace, 573 F.3d at 88; United States v. Genao-Sánchez, 525
F.3d 67, 69 (1st Cir. 2008); United States v. Moran, 393 F.3d 1,
7 (1st Cir. 2004). The branch implicated here is the mandate
rule,4 which "prevents relitigation in the trial court of matters
that were explicitly or implicitly decided by an earlier appellate
decision in the same case." Moran, 393 F.3d at 7. Put bluntly,
"the mandate rule requires that the trial court conform with the
directions of the appellate court on remand." United States v.
Dávila-Félix, 763 F.3d 105, 109 (1st Cir. 2014). Because the
mandate rule is embedded within the law of the case doctrine, it
follows that we may raise an abridgement of the mandate rule sua
sponte.
The government argues that the resentencing court did
not transgress this court's mandate. That mandate, the government
4 For completeness, we add that the other branch of the doctrine "contemplates that a legal decision made at one stage of a criminal or civil proceeding should remain the law of that case throughout the litigation, unless and until the decision is modified or overruled by a higher court." Moran, 393 F.3d at 7. That branch is not in issue here. suggests, was broad and did not cabin the resentencing court's
discretion. In the government's view, we merely remanded the case
"for resentencing" — and the resentencing court was free to
consider new developments (including intervening, post-sentencing
convictions and sentences).
The government's narrow focus on the words "for
resentencing" is myopic. Everything depends on context, and the
case law makes pellucid that we ordinarily do not permit de novo
resentencing on remand. See United States v. Cruzado-Laureano,
527 F.3d 231, 234 (1st Cir. 2008). In the face of this custom and
practice, "the absence of an express limitation does not a
limitless remand make." Dávila-Félix, 763 F.3d at 109.
To determine the scope of a remand, a district court
must "consider carefully 'both the letter and the spirit of the
mandate, taking into account the appellate court's opinion and the
circumstances it embraces.'" Id. (quoting Genao-Sánchez, 525 F.3d
at 70). It follows that the Cheveres I judgment and the
circumstances attendant to that judgment necessarily inform the
scope of the remand order.
In the run-up to the Cheveres I judgment, the government
moved to remand because — it conceded — the sentencing court had
violated the rule of Marrero-Pérez, 914 F.3d at 24, by
impermissibly relying on prior arrests (not yet ripened into
convictions) when determining the defendant's sentence. The government also conceded that the sentencing court erred by
"consider[ing] alleged pending state charges which were never
included in the [PSI Report] . . . or any motions." The Cheveres
I judgment described the two conceded sentencing errors and
remanded the case "for resentencing."
The remand that we ordered in Cheveres I was designed to
clear the decks by throwing overboard the arrests on which the
sentencing court had erroneously relied. The phrase "for
resentencing" was not a magic bullet that scuttled this context
and — by some mysterious alchemy — converted our remand into a
general remand, such as would "allow[] the district court to review
all sentencing matters de novo." Wallace, 573 F.3d at 88 n.5.
Both the letter and the spirit of our mandate, taken in context,
made manifest that we were issuing a limited remand: the
resentencing court was to correct the Marrero-Pérez error and to
disregard the unproven allegations about pending charges in the
Puerto Rico courts.
The record before us makes plain that the district court
did not conform its resentencing to the limitations of the remand.
Instead, the court doubled down on its error by using a prior
arrest (which by then had ripened into two convictions and
sentences) to jack up the defendant's criminal history score and
inflate his guideline sentencing range. This freewheeling
approach worked a violation of the mandate rule. 2
The government has a fallback position. It argues that
even if the remand order was limited, the district court did not
offend the mandate rule because the court was permitted to consider
the intervening, post-sentencing convictions and sentences as
relevant "'information concerning the background, character, and
conduct' of [the] defendant" and as "a critical part of [his]
'history and characteristics'" under 18 U.S.C. § 3553(a). (Quoting
Pepper v. United States, 562 U.S. 476, 490, 492 (2011)).
This argument misses the mark. In the case at hand, we
are concerned with the district court's use of the intervening,
post-sentencing convictions and sentences to increase the
defendant's guideline sentencing range. That the resentencing
court may have been able to consider the same information for an
entirely distinct purpose — a matter on which we take no view —
makes no difference.
The government's final objection to sua sponte
consideration of a claim of error not timely raised by the
defendant centers on the party presentation principle, which
teaches that, in our adversary system, courts "rely on the parties
to frame the issues for decision" while the courts assume "the
role of neutral arbiter of matters the parties present." Greenlaw
v. United States, 554 U.S. 237, 243 (2008). We agree that, "as a general rule, our system 'is designed around the premise that
[parties represented by competent counsel] know what is best for
them, and are responsible for advancing the facts and argument
entitling them to relief.'" United States v. Sineneng-Smith, 140
S. Ct. 1575, 1579 (2020) (alteration in original) (quoting Castro
v. United States, 540 U.S. 375, 386 (2003)).
But this general rule — like most general rules — admits
of exceptions. Thus, "[t]he party presentation principle is
supple, not ironclad. There are no doubt circumstances in which
a modest initiating role for a court is appropriate." Id.
Exercising this authority, the Supreme Court has "noticed, and
ordered correction of, plain errors not raised by
defendants . . . to benefit a defendant who had himself petitioned
[it] for review on other grounds." Greenlaw, 554 U.S. at 247
(citing Silber v. United States, 370 U.S. 717 (1962) (per curiam)).
Here, the equities strongly preponderate in favor of
review. We have an institutional interest in protecting the
integrity of our mandate. See Zipfel v. Halliburton Co., 861 F.2d
565, 567 (9th Cir. 1988) (explaining that court has the "power to
protect the integrity of its own processes"); see also Sargent v.
Columbia Forest Prods., Inc., 75 F.3d 86, 89 (2d Cir. 1996)
(quoting Zipfel). What is more, the government's remand motion
would have led any reasonable defendant to anticipate a reduced
sentence. Instead, the remand — as implemented by the resentencing court — proved to be a killing ground, not only dashing the
defendant's hopes for a reduced sentence but also saddling him
with a substantially greater term of immurement. In the
circumstances of this case, a departure from the party presentation
principle is warranted both in the interest of protecting the
integrity of this court's mandate and in the interest of avoiding
a miscarriage of justice.
B
The fact that we can review a claim of error sua sponte
means that the claim of error is cognizable; it does not mean that
the claim of error carries the day. The ultimate fate of the claim
of error hinges on whether the error is reversible. As we have
said, the claim of error was not raised below. This inquiry must
proceed under a plain error standard of review. See United States
v. Duarte, 246 F.3d 56, 60 (1st Cir. 2001) (applying plain error
review to claim of error not advanced below).
"The plain error standard, though rigorous, is not
insurmountable." United States v. Ortiz, 741 F.3d 288, 293 (1st
Cir. 2014). To prevail under plain error review, an appellant
must make "four showings: (1) that an error occurred (2) which
was clear or obvious and which not only (3) affected the
[appellant's] substantial rights, but also (4) seriously impaired
the fairness, integrity, or public reputation of judicial
proceedings." Duarte, 246 F.3d at 60. We test the defendant's claim of sentencing error in the crucible of this four-part
standard.
To begin, the district court erred by relying on
intervening, post-sentencing convictions and sentences to enhance
the defendant's criminal history score and thereby boost his
guideline sentencing range. After all, "[a] defendant's guideline
sentencing range is a product of two integers: his total offense
level and his CHC." United States v. Pinkham, 896 F.3d 133, 139
(1st Cir. 2018). The latter integer — the defendant's CHC — "is
derived from [his] criminal history score." Id.
When computing a defendant's criminal history score, a
sentencing court must assess criminal history points for each
sentence that qualifies as a "prior sentence." See USSG §4A1.1.
In Ticchiarelli, we held that the phrase "prior sentence" in the
guideline means "a sentence which is prior to the original sentence
which was vacated and remanded only for resentencing." 171 F.3d
at 35; see USSG §4A1.2(a)(1). It follows inexorably, as night
follows day, that the court below transgressed Ticchiarelli by
counting the intervening, post-sentencing sentences as prior
sentences and, thus, adding three unwarranted points to the
defendant's criminal history score. The erroneously inflated
criminal history score raised the defendant's CHC from I to II and
yielded a correspondingly higher guideline sentencing range. Cf.
Pinkham, 896 F.3d at 139 (observing that "[t]he lower a defendant's CHC, the lower his guideline sentencing range ordinarily will be").
Because this error was "contrary to existing law," United States
v. Rabb, 5 F.4th 95, 101 (1st Cir. 2021), we deem it clear and
obvious.5
Moving to the third element of the plain error construct,
it is transparently clear that this error affected the defendant's
substantial rights. To satisfy this element, the defendant must
show that the error was "'prejudicial' such that it 'affected the
outcome of the district court proceedings.'" United States v.
Bramley, 847 F.3d 1, 7 (1st Cir. 2017) (quoting United States v.
Olano, 507 U.S. 725, 734 (1993)). Here, the error produced a
significantly higher guideline sentencing range. And because the
guidelines are "the starting point and the initial benchmark" in
a sentencing proceeding, Gall v. United States, 552 U.S. 38, 49
(2007), a sentencing court that improperly assigns too lofty a
guideline sentencing range infringes upon the defendant's
substantial rights, see Molina-Martinez v. United States, 578 U.S.
5 The government characterizes this court's holding in Ticchiarelli as an "outlier." This characterization lacks force. Ticchiarelli is the law of this circuit, and "[i]t is common ground that '[i]n a multi-panel circuit, newly constituted panels are . . . bound by prior panel decisions closely on point.'" United States v. Barbosa, 896 F.3d 60, 74 (1st Cir. 2018) (second alteration in original) (quoting Williams v. Ashland Eng'g Co., 45 F.3d 588, 592 (1st Cir. 1995)); see United States v. Guzmán, 419 F.3d 27, 31 (1st Cir. 2005) (noting "narrow exceptions," not relevant to this case). So it is here. 189, 204 (2016) (explaining that "a defendant sentenced under an
incorrect Guidelines range should be able to rely on that fact to
show a reasonable probability that the district court would have
imposed a different sentence under the correct range").
Last — but far from least — we think that this error
seriously impaired the fairness and integrity of a judicial
proceeding. In Cheveres I, the government beseeched us to vacate
the defendant's sentence, conceding that the sentencing court had
impermissibly relied on certain aggravating factors in fashioning
the sentence. The defendant did not object to the motion to
remand, reasonably anticipating that removing the erroneously
inserted aggravating factors from the sentencing calculus would
result in a more lenient sentence. But after we vacated the
sentence and ordered a remand, the resentencing court doubled down
on an augmented version of those aggravating factors, assigned the
defendant an elevated guideline sentencing range, and imposed an
even stiffer sentence.
Sandbagging is not in fashion in this circuit. Given
that the government and the resentencing court converted what was
meant to be a path toward a reduced sentence into a costly trap
for an unwary defendant, letting that outcome stand would put the
judicial system in a poor light.
That ends this aspect of our inquiry. "In broad strokes,
the public legitimacy of our justice system relies on procedures that are neutral, accurate, consistent, trustworthy, and fair, and
that provide opportunities for error correction." Rosales-Mireles
v. United States, 138 S. Ct. 1897, 1908 (2018) (internal quotations
omitted). As the Supreme Court asked, "what reasonable citizen
wouldn't bear a rightly diminished view of the judicial process
and its integrity if courts refused to correct obvious errors of
their own devise that threaten to require individuals to linger
longer in federal prison than the law demands?" Id. (quoting
United States v. Sabillon-Umana, 772 F.3d 1328, 1333-34 (10th Cir.
2014) (Gorsuch, J.)). Such a "diminished view of the proceedings
ordinarily will" suffice to satisfy the fourth element of the plain
error construct. Id. That is true in this case.
III
We need go no further. For the reasons elucidated above,
we hold that we may raise sua sponte an error that constitutes a
violation of the mandate rule. Because we conclude that the
resentencing court committed plain Ticchiarelli error, we vacate
the defendant's sentence and remand for resentencing consistent
with this opinion.
Vacated and Remanded.