United States Court of Appeals For the First Circuit
No. 21-1916
UNITED STATES OF AMERICA,
Appellee,
v.
ERICK DE JESÚS-TORRES,
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, Selya and Kayatta, Circuit Judges.
Raúl S. Mariani Franco on brief for appellant. 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, on brief for appellee.
March 31, 2023 SELYA, Circuit Judge. Uber is a ride-hail company,
through which prospective riders summon drivers electronically (by
means of a specially designed app). Defendant-appellant Erick De
Jesús-Torres and his two accomplices devised a way to use the Uber
app as a latchkey to open the doors for serial carjackings. After
these antics came to an inglorious end, the defendant entered a
guilty plea to a number of charges and was sentenced to serve a
seventy-eight-month prison sentence. In this appeal, he
challenges both his sentence and the concomitant restitution
order. After careful consideration, we reject his claims of
sentencing error. As to the restitution order, we find merit in
one — but only one — of his claims. Consequently, we affirm the
defendant's sentence; direct modification of the restitution order
as specified herein; and affirm the modified restitution order.
I
We briefly rehearse the relevant facts and travel of the
case. Where, as here, a sentencing appeal follows a guilty plea,
"we draw the facts from the non-binding plea agreement . . . , the
change-of-plea colloquy, the undisputed portions of the [amended]
presentence investigation report (PSI Report), and the transcript
of the disposition hearing." United States v. Bermúdez-Meléndez,
827 F.3d 160, 162 (1st Cir. 2016).
- 2 - A
This case arises from a carjacking spree that occurred
during a time frame that extended from late 2019 into early 2020.
The first three carjackings (which took place on December 20,
December 23, and December 31) each followed the same pattern: the
defendant and his two accomplices requested an Uber; when the Uber
arrived, the defendant sat in the front passenger seat and the
accomplices sat in the back seat; upon reaching their designated
destination, the defendant switched off the ignition; one of the
accomplices ordered the driver out of the vehicle; and once the
driver had complied, the trio drove the vehicle away. In each
instance, one of the accomplices brandished a pellet gun. These
three carjackings went according to plan.
The carjackers, however, came a cropper on their fourth
try. During the evening of January 2, the Uber driver who had
responded to their request refused to exit the vehicle when the
defendant's accomplice pointed the pellet gun at her. She
continued to balk despite being struck several times. Exasperated,
the three miscreants robbed the driver but fled without the vehicle
once the driver began sounding the horn.
The carjackers' work on that evening was not done. They
repaired to a nearby bowling alley, where an acquaintance requested
another Uber for them. Employing their signature method, the trio
- 3 - carjacked that vehicle. Later that same evening, they carjacked
yet another Uber.
The carjackers' spree ended the next morning (around
12:30 a.m.), when an off-duty police officer — with the assistance
of the Uber driver who had refused to capitulate to the carjackers
— apprehended them. What happened next is disputed. According to
the amended PSI Report,1 the off-duty officer seized the defendant
and, during the ensuing scuffle, the defendant "grabbed [the
officer]'s firearm, which fired a round that struck [the defendant]
in his torso." The defendant, however, claimed that he had no way
of knowing that the man wielding a firearm was a police officer.
He also claimed that the man shot him in the back as he fled. In
any event, the defendant was arrested soon after the shooting.
B
As relevant here, a federal grand jury sitting in the
District of Puerto Rico returned a superseding indictment charging
the defendant with five counts of carjacking and one count of
attempted carjacking. See 18 U.S.C. § 2119. The defendant pleaded
guilty to all six counts pursuant to a plea agreement that forecast
a total offense level (TOL) of twenty-four but left open the
1 For present purposes, the amended PSI Report is the operative version of the presentence investigation report. Although the probation office later filed a second amended PSI Report, that report is identical to the amended PSI Report except for the presence of an addendum (which we have duly considered).
- 4 - defendant's criminal history category (CHC). Both sides agreed to
recommend a sentence at the lower end of the guideline sentencing
range (GSR) to be determined by the district court.
In the first iteration of the PSI Report, the probation
office calculated a TOL of thirty, noting that the plea-agreement
calculation had not taken into account, among other things,
applicable enhancements for bodily injury and the use of a
dangerous weapon. See USSG §2B3.1(b)(2)(D), (b)(3)(A). The report
also provided a restitution recommendation, which included — as
expense items incident to the carjackings — the cost of replacing
a cellphone belonging to one of the victims ($1,170.74), the cost
of auto-body work for damage to a carjacked vehicle ($4,209.77),
and the cost of transmission repairs to the same vehicle
($3,914.52). The probation office based these loss calculations
on receipts for the cellphone and transmission repairs, an estimate
for the body work, and a victim-impact statement.
The defendant interposed several objections to the PSI
Report (objections which, as we discuss below, were untimely). In
response, the probation office filed an amended PSI Report. The
probation office did not change the restitution calculations, but
the probation office sent defense counsel copies of receipts for
some cost items and a copy of the estimate for the auto-body work.
Moreover, the amended PSI Report deleted the proposed bodily injury
enhancement but retained the recommended dangerous weapon
- 5 - enhancement, resulting in a TOL of twenty-eight. That TOL, coupled
with the defendant's placement in CHC I, yielded a GSR of seventy-
eight to ninety-seven months.
The district court convened the disposition hearing on
October 18, 2021. Both sides argued for a fifty-one-month
incarcerative sentence (based on the plea agreement and the
defendant's mitigating circumstances, including the fact that he
had just turned eighteen at the time of the carjacking spree).
The district court demurred. It adopted the guideline calculations
limned in the amended PSI Report. Then, the court found that the
parties' recommended sentence did not "reflect the seriousness of
the offenses, . . . promote respect for the law, . . . protect the
public from . . . additional crimes by Mr. De Jesus, [or] address
the issues of deterrence and punishment," particularly considering
the "violent nature of the six carjacking crimes in which victims
were led to believe that their life was threatened by a firearm."
Having laid this foundation, the court proceeded to impose a
within-the-range term of immurement of seventy-eight months.
Finally, the court adopted the amended PSI Report's restitution
calculations and ordered the defendant to pay $9,295.03 in
restitution (comprising the aggregate cost of a new cellphone, the
auto-body work, and the transmission repairs).
- 6 - The defendant unsuccessfully sought reconsideration of
both the sentence and the restitution award. This timely appeal
followed.
II
The defendant argues that his sentence is both
procedurally infirm and substantively unreasonable. In addition,
he argues that the restitution order is lacking in evidentiary
support.
Our "review of a criminal defendant's claims of
sentencing error involves a two-step pavane." United States v.
Miranda-Díaz, 942 F.3d 33, 39 (1st Cir. 2019). Under this
framework, "we first determine whether the sentence imposed is
procedurally reasonable and then determine whether it is
substantively reasonable." United States v. Clogston, 662 F.3d
588, 590 (1st Cir. 2011). At both steps of this pavane, "our
review of preserved claims of error is for abuse of discretion."
United States v. Díaz-Lugo, 963 F.3d 145, 151 (1st Cir. 2020).
Within the abuse of discretion rubric, we review findings of fact
for clear error and questions of law de novo. See United States
v. Carrasquillo-Vilches, 33 F.4th 36, 41 (1st Cir. 2022).
Against this backdrop, we turn first to the defendant's
claims of sentencing error. Restitution is a separate matter —
and we discuss it separately. See infra Part II(D). That
discussion incorporates the applicable standards of review.
- 7 - A
There is a threshold question as to the timeliness of
the defendant's objections to the amended PSI Report's version of
the relevant events. We start there.
Under Federal Rule of Criminal Procedure 32(f)(1), a
defendant has fourteen days to object to inaccuracies in a
presentence investigation report.2 Here, the defendant's
objections were not submitted until twenty-four days after the PSI
Report issued. Typically, an untimely objection would work a
forfeiture, limiting the objecting party to plain error review.
See United States v. Carbajal-Váldez, 874 F.3d 778, 783 (1st Cir.
2017). But when — as in this case — neither the government nor
the district court questioned the timeliness of belated objections
to a presentence investigation report, "a colorable argument can
be made that the objections sufficed to preserve the claim of
error." Id. Thus, we assume — favorably to the defendant — that
his objections to the PSI Report were preserved.
The defendant's claim of procedural error is bound up in
his contention that the district court erred by relying on disputed
facts within the amended PSI Report regarding his struggle with
2 This fourteen-day period is mirrored in a local rule promulgated by the United States District Court for the District of Puerto Rico. See D.P.R. Crim. R. 132(b)(3)(A).
- 8 - the off-duty police officer. When a fact in the PSI Report is
disputed, a district court must resolve the dispute so long as the
fact may affect the court's sentencing determinations. See Fed.
R. Crim. P. 32(i)(3)(B). In such an event, we ordinarily would
review the district court's finding on the disputed fact for clear
error. See Carbajal-Váldez, 874 F.3d at 783.
The case at hand, though, does not fit that mold. When
the defendant objected during the disposition hearing to the
amended PSI Report's description of his interaction with the off-
duty police officer (urging that the district court "should not
give any weight to those facts"), the court responded that it had
not considered the encounter for sentencing purposes. We have no
reason to doubt that the district court meant what it said, and
its statement disposes of any need for us to resolve the
defendant's claim of error. We have held before — and today
reaffirm — that when a sentencing court determines that a disputed
fact will not be considered for sentencing purposes, a ruling on
that disputed fact becomes unnecessary. See United States v.
Pinet-Fuentes, 888 F.3d 557, 560 (1st Cir. 2018); see also Fed. R.
Crim. P. 32(i)(3)(B).
To be sure, the district court — earlier in the
disposition hearing — mentioned the defendant's encounter with the
off-duty police officer. But we conclude that the district court's
later disavowal of any reliance on the disputed encounter was
- 9 - sufficient to render the defendant's claim of procedural error
moot. When a sentencing court specifically disavows any reliance
on a particular circumstance, a reviewing court should give
credence to that disavowal absent some contradictory indication in
the record. See, e.g., United States v. García-Mojica, 955 F.3d
187, 194 (1st Cir. 2020) (rejecting claim of procedural error when
district court "expressly disavowed any reliance on facts" not
properly before it); cf. United States v. Londono-Quintero, 289
F.3d 147, 155 (1st Cir. 2002) (giving credence to district court's
disavowal of any reliance on police report when it made aggravated-
felony determination). There is no such contradictory indication
in the record here.
C
We next turn to the defendant's contention that his
sentence is substantively unreasonable. Our review is for abuse
of discretion. See Holguin-Hernandez v. United States, 140 S. Ct.
762, 766 (2020); Carrasquillo-Vilches, 33 F.4th at 44.
When evaluating the substantive reasonableness of a
challenged sentence, "the key inquiry is whether the sentencing
court has articulated a plausible rationale and reached a
defensible result." United States v. Coombs, 857 F.3d 439, 452
(1st Cir. 2017). In undertaking this inquiry, we remain mindful
that "reasonableness is a protean concept." United States v.
Martin, 520 F.3d 87, 92 (1st Cir. 2008). "There is no one
- 10 - reasonable sentence in any given case but, rather, a universe of
reasonable sentencing outcomes." Clogston, 662 F.3d at 592.
In this instance, the district court adopted the
guideline calculations recommended in the amended PSI Report
(including the recommended GSR). On appeal, the defendant has not
mounted any viable challenge to the GSR. Where, as here, a
sentence is within a properly calculated guideline range,
challenging its substantive reasonableness involves a "heavy
lift." United States v. Cortés-Medina, 819 F.3d 566, 572 (1st
Cir. 2016).
The defendant strives to persuade us that he can make
this heavy lift. He first suggests that, although the dangerous
weapon enhancement may literally apply, its application here — in
circumstances in which the pellet gun was neither procured by him
nor wielded by him — is not aligned with the Sentencing
Commission's intent. In support, the defendant cites the Supreme
Court's decision in Kimbrough v. United States, 552 U.S. 85 (2007).
Fairly read, Kimbrough is of little help to the
defendant. We have described Kimbrough as holding that "district
courts have discretion to vary downwardly from a sentence on the
basis of a policy disagreement with the relevant guideline."
United States v. Lewis, 963 F.3d 16, 26 (1st Cir. 2020) (citing
Kimbrough, 552 U.S. at 109-10). Taking this description into
- 11 - account, we find the defendant's Kimbrough-based contention
unconvincing. When he raised this objection below, the district
court overruled it. The court found that the facts adumbrated in
the amended PSI Report brought this case squarely within the
purport of the enhancement. It noted that although the defendant's
accomplices held the pellet gun, the guidelines for aiding and
abetting the use of a dangerous weapon made the defendant equally
responsible for its deployment. See USSG §1B1.3(a)(1)(A).
The district court's logic seems unassailable. In
determining that the dangerous weapon enhancement should apply
equally to those who aid and abet the use of a dangerous weapon,
the Sentencing Commission took aim at the precise type of conduct
that the defendant now seeks to place on the outer periphery of
the enhancement.
We add, moreover, that Kimbrough does not require a
downward variance every time a defendant can articulate a colorable
policy disagreement with a guideline provision. See Clogston, 662
F.3d at 592 (observing that "the discretion to vary under Kimbrough
is not tantamount to an obligation to do so"); United States v.
Rodríguez, 527 F.3d 221, 231 (1st Cir. 2008) (noting that although
sentencing court may consider a Kimbrough-related argument, it is
"not obligated to deviate from the guidelines based on" that
argument). Although the Kimbrough Court affirmed a sentencing
court's discretion to vary downward in response to policy
- 12 - arguments, "the mere fact that a sentencing court has the
discretion to disagree with the guidelines on policy
grounds . . . does not mean that it is required to do so." United
States v. Ekasala, 596 F.3d 74, 76 (1st Cir. 2010). Consequently,
we reject the defendant's suggestion that a downward variance was
necessary here.
The defendant also attacks the substantive
reasonableness of his sentence from a different angle. He
complains that the district court did not give adequate weight to
certain mitigating factors that, in his view, warranted a lower
sentence. He specifically notes his youth at the time of the
carjackings, the years he spent in the foster care system, his
first-time-offender status, and his lack of any involvement with
controlled substances.
Even so, the district court did not overlook these
factors. The court commented specifically that it had considered
the defendant's "age, mental health condition, mental disability,
first time offender status, and his allocution." But the court
weighed these mitigating factors against "the violent nature of
the six carjacking crimes in which victims were led to believe
that their life was threatened by a firearm." Based on its
analysis, the court struck a different balance than the parties
had reached in the plea agreement: to the court's way of thinking,
- 13 - the proposed fifty-one-month sentence failed to "reflect the
seriousness of the offenses."
When all is said and done, this aspect of the defendant's
challenge rests mainly on the district court's alleged failure to
weigh certain mitigating factors as heavily as the defendant would
have preferred. But the mere fact "[t]hat the sentencing court
chose not to attach to certain of the mitigating factors the
significance that the [defendant] thinks they deserved does not
make the sentence unreasonable." Clogston, 662 F.3d at 593.
Of course, the district court's sentencing rationale is
not a textbook model. Much of it is boilerplate — and we have
twice remarked on its flaws in recent opinions. See United States
v. Flores-Nater, __ F.4th __, __ (1st Cir. 2023) [Nos. 21-1856,
21-1979, slip op. at 8] (concluding that similar, non-case-
specific language "scarcely constitutes a plausible rationale
sufficient to justify a steep upward variance"); United States v.
Muñoz-Fontanez, 61 F.4th 212, 214-15 (1st Cir. 2023) (concluding
that similar, non-case-specific language was inadequate to explain
upward variance). Here, however, there are two notable
differences. First, the court went beyond the boilerplate to
single out a case-specific aggravating factor: it commented
specifically on the especially violent nature of the offenses of
conviction. See Flores-Nater, __ F.4th at __ [slip op. at 9]
(explaining that "a sentencing court's rationale need not always
- 14 - be explicit" but, in some instances, that "rationale may be teased
from the sentencing record"). Second, the sentence was within the
GSR and, as such, the burden of explanation was considerably
diminished. See United States v. Montero-Montero, 817 F.3d 35, 37
(1st Cir. 2016). After all, "when a judge decides simply to apply
the Guidelines to a particular case, doing so will not necessarily
require lengthy explanation." Rita v. United States, 551 U.S.
338, 356-57 (2007). Given this low bar, we deem the district
court's rationale to be both plausible and sufficient to support
the defendant's sentence.
Nor is the sentencing outcome in this case an outlier.
In virtually all cases, a within-guidelines sentence will be a
defensible outcome. See United States v. Torres-Landrúa, 783 F.3d
58, 69 (1st Cir. 2015) (concluding that sentence "at the very
bottom" of applicable GSR "was within the universe of reasonable
outcomes and, thus, defensible"); cf. United States v. Turbides-
Leonardo, 468 F.3d 34, 41 (1st Cir. 2006) ("It will be the rare
case in which a within-the-range sentence can be found to
transgress the parsimony principle."). This case falls within the
sweep of that general rule, not within the long-odds exception to
it. It follows that a bottom-of-the-range sentence — such as the
sentence that the defendant challenges in this case — represents
a defensible outcome.
- 15 - We add a coda. Though advisory, the sentencing
guidelines are "the initial benchmark" from which to make an
individualized assessment. Gall v. United States, 552 U.S. 38,
49-50 (2007). That the court declined to vary below the guideline
range is not an abuse of discretion and does not render the
defendant's sentence substantively unreasonable. See Clogston,
662 F.3d at 593.
D
This leaves the defendant's challenge to the restitution
order. Under the Mandatory Victims Restitution Act (MVRA),
defendants convicted of certain federal crimes — such as carjacking
— must make victims whole for their actual losses. See 18 U.S.C.
§ 3663A. For this purpose, the MVRA limits a victim's "actual
loss" to the "pecuniary harm that would not have occurred but for
the defendant's criminal activity." Carrasquillo-Vilches, 33
F.4th at 45 (quoting United States v. Simon, 12 F.4th 1, 64 (1st
Cir. 2021)); see 18 U.S.C. § 3663A(b)(1)(B).
Before us, the defendant attempts to challenge the
restitution order as to all three of its component parts (the cost
of a new cellphone, the cost of the auto-body work, and the cost
of the transmission repairs). But he has bitten off more than he
can chew. We have said that "[w]aiver typically occurs when a
party intentionally relinquishes a known right," United States v.
Alphas, 785 F.3d 775, 784 (1st Cir. 2015), and at the disposition
- 16 - hearing, the defendant expressly abandoned his previous objections
to the restitution order in so far as those objections concerned
compensation for replacement of the stolen cellphone and for the
auto-body work. His claims of error with respect to those portions
of the restitution order are, therefore, waived. See United States
v. Orsini, 907 F.3d 115, 119-20 (1st Cir. 2018); Alphas, 785 F.3d
at 784.
The issue narrows, then, to the defendant's challenge to
that part of the restitution order dealing with reimbursement for
transmission repairs (totaling $3,914.52). "We review restitution
orders for abuse of discretion, examining the court's subsidiary
factual findings for clear error and its answers to abstract legal
questions de novo." United States v. Chiaradio, 684 F.3d 265, 283
(1st Cir. 2012). The government bears "the burden of demonstrating
a proximate, but-for causal nexus between the offense of conviction
and the actual loss." United States v. Padilla-Galarza, 990 F.3d
60, 92 (1st Cir. 2021). It must carry this burden by a
preponderance of the evidence. See 18 U.S.C. § 3664(e). "This
standard is relatively modest in application, as 'a modicum of
reliable evidence' may suffice both to establish the requisite
causal connection and to justify a dollar amount." Padilla-
Galarza, 990 F.3d at 92 (quoting United States v. Flete-Garcia,
925 F.3d 17, 37 (1st Cir. 2019)).
- 17 - Such reliable evidence can be derived from a presentence
investigation report, which "generally bears 'sufficient indicia
of reliability to permit the district court to rely on it at
sentencing.'" United States v. Prochner, 417 F.3d 54, 65-66 (1st
Cir. 2005) (quoting United States v. Cyr, 337 F.3d 96, 100 (1st
Cir. 2003)). A defendant may object to the PSI Report's
restitution figure, but if the objections "are merely rhetorical
and unsupported by countervailing proof, the district court is
entitled to rely on the facts in the [PSI Report]." Id. at 66
(quoting Cyr, 337 F.3d at 100).
In the case at hand, the defendant asserts that the
district court awarded restitution for the transmission repairs
notwithstanding the absence of any evidence showing either the
cost of the transmission repairs or a causal connection between
those repairs and the carjacking. As to the repair cost, his claim
is baseless. The repair cost ($3,914.52) was specified in the
amended PSI Report and (corroborated by a receipt furnished to
defense counsel).3 Without any contradictory factual showing, it
was within the district court's discretion to rely on the repair-
cost figure displayed in the amended PSI Report. See United States
v. Sánchez-Maldonado, 737 F.3d 826, 828 n.2 (1st Cir. 2013)
Although a copy of the receipt is not contained in the 3
sentencing record, defense counsel has not denied either that he received the receipt or that the receipt was in the amount that the sentencing court awarded.
- 18 - (explaining — in restitution context — that "an uncontradicted
loss amount does not give rise to a dispute"); Prochner, 417 F.3d
at 66 ("In the absence of rebuttal evidence beyond defendant's
self-serving words, we cannot say the court clearly erred in
accepting the [PSI Report's] calculation of the restitution
amount.").
But there is a fly in the ointment. To recover any item
of loss, the government must show a causal connection between the
offense of conviction and that item. See Padilla-Galarza, 990
F.3d at 92. Here, however, the record is barren of any smidgen of
evidence indicating a causal connection between the carjacking and
the transmission damage. The amended PSI Report does not speak to
causation at all, and there is not even a statement from the victim
to that effect in the record.4 What is more, the district court
did not identify any factual basis sufficient to support a finding
of causation. Causation cannot simply be assumed and — in light
of this evidentiary void — the portion of the restitution award
4 The victim-impact statement that mentions the transmission repairs is not part of the district court record and — for aught that appears — was never reviewed by the district court. In an abundance of caution, we have tracked down that statement and have learned that it was part of the probation office's file. But it is a Spanish-language document, which was never translated into English. Reliance on it in a federal court proceeding is therefore proscribed. See 48 U.S.C. § 864; see also United States v. Román- Huertas, 848 F.3d 72, 76 n.4 (1st Cir. 2017) ("The Jones Act applies with equal force to any material that a probation officer wants the district court to consider at sentencing.").
- 19 - relating to transmission repairs ($3,914.52) cannot stand. On
remand, therefore, the district court must modify the restitution
order by subtracting $3,914.52, resulting in a modified award of
$5,380.51.
III
We need go no further. For the reasons elucidated above,
we affirm the defendant's sentence; direct modification of the
restitution order as specified herein; and affirm the modified
restitution order.
So Ordered.
- 20 -