United States Court of Appeals For the First Circuit
No. 25-1607
UNITED STATES,
Appellee,
v.
HÉCTOR MALDONADO-MALDONADO,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF PUERTO RICO
[Hon. María Antongiorgi-Jordán, U.S. District Judge]
Before
Barron, Chief Judge, Lipez and Rikelman, Circuit Judges.
José David Rodríguez, Assistant Federal Public Defender, with whom Rachel Brill, Federal Public Defender, and Franco L. Pérez-Redondo, Assistant Federal Public Defender, Supervisor, Appellate Unit, were on brief, for appellant. Maarja T. Luhtaru, with whom W. Stephen Muldrow, United States Attorney, Juan Carlos Reyes-Ramos, Assistant United States Attorney, Chief, Appellate Division, and Julia M. Meconiates, Assistant United States Attorney, were on brief, for appellee.
June 8, 2026 RIKELMAN, Circuit Judge. For the second time, Héctor
Maldonado-Maldonado ("Maldonado") appeals his sentence for
assaulting a corrections officer. He lodges several procedural
challenges to his revised sentence. We agree with Maldonado that
the district court legally erred when it relied on information
outside the record, without any notice to him, in determining his
sentence. Thus, we vacate the judgment and remand for
resentencing.
I. BACKGROUND1
A. Relevant Facts
In August 2020, while he was incarcerated at the
Metropolitan Detention Center in Guaynabo, Maldonado assaulted a
senior corrections officer (SCO). See United States v.
Maldonado-Maldonado (Maldonado I), 134 F.4th 32, 33-34 (1st Cir.
2025). During the assault, Maldonado punched the SCO multiple
times and placed him in a headlock, all with the help of his
cellmate, Miguel Santana-Aviles ("Santana"). See id. at 34. The
SCO suffered injuries to his head and neck and experienced
headaches for months after the attack. See id. A grand jury
eventually charged both Maldonado and Santana with assaulting,
1Because this appeal follows a guilty plea, we draw the relevant facts from the plea agreement, the unobjected-to portions of the Presentence Investigation Report, and the transcript of the sentencing hearing. See United States v. Colón-Cordero, 91 F.4th 41, 45 (1st Cir. 2024).
- 2 - resisting, or impeding a federal officer. See 18 U.S.C.
§ 111(a)(1), (b).
B. Procedural History
1. The Initial Sentencing and Appeal
Although Santana proceeded to trial, Maldonado
eventually pleaded guilty to the charge against him. See
Maldonado I, 134 F.4th at 34. As part of his plea deal, Maldonado
and the government agreed to propose to the district court a
sentencing calculation that hinged on applying the "[o]bstructing
or [i]mpeding [o]fficers" guideline in the United States
Sentencing Guidelines. See U.S. Sent'g Guidelines Manual
("U.S.S.G.") § 2A2.4 (U.S. Sent'g Comm'n 2021).2 Given Maldonado's
criminal history category and various adjustments, the agreed-upon
calculation would have yielded a sentencing range of 18 to 24
months in prison.
Separately, the U.S. Probation Office submitted a
Presentence Investigation Report (PSR) that recommended a
different, higher guidelines calculation, resulting in a
guidelines sentencing range of 63 to 78 months in prison. In
preparing the PSR, the probation officer relied on evidence about
the assault that the government introduced at Santana's March 2022
2 Throughout this opinion, we refer to the version of the U.S. Sentencing Guidelines that was in effect at the time of the relevant sentencing proceeding.
- 3 - trial but that was not included in the plea agreement's stipulation
of facts. This evidence led her to recommend that the district
court apply a different guideline, the "aggravated assault"
guideline, in determining Maldonado's sentence. See U.S.S.G.
§ 2A2.2. The probation officer also recommended several
additional sentencing enhancements that were available under the
"aggravated assault" guideline but not the "impeding officers"
guideline contemplated by the plea agreement. See Maldonado I,
134 F.4th at 35.
Before and during Maldonado's August 2022 sentencing
hearing, the government made recommendations to the district court
that deviated from the plea agreement it had signed. See id. at
36. In particular, the government argued during the hearing that
the court should apply an enhancement that was available only under
the "aggravated assault" guideline. See id. It also characterized
Maldonado's assault on the SCO as especially serious, using
language like "extraordinary," and described Maldonado himself as
"inherent[ly] dangerous[]." Id. (alterations in original).
The district court adopted the PSR's sentencing
guidelines calculation, which depended on application of the
"aggravated assault" guideline. It then sentenced Maldonado to
the upper end of the resulting guidelines range -- 78 months in
prison.
- 4 - Maldonado appealed his initial sentence on multiple
grounds, including that the government had breached the plea
agreement. In response, the government conceded its breach. It
forthrightly admitted that it had violated the plea agreement by
advocating for the application of guidelines and enhancements
inconsistent with that agreement. See id. at 37-38. We concurred,
vacated Maldonado's sentence on that ground, and remanded for
resentencing. See id. at 38-39.
Consistent with our standard practice in plea-breach
cases, we remanded the case to a different district court judge.
See id. at 39 (citing United States v. Mojica-Ramos, 103 F.4th
844, 854 (1st Cir. 2024)). But we declined Maldonado's request to
instruct the district court, on remand, to impose a sentence of
time served. See id. at 38-39.
2. The Resentencing Hearing
The district court resentenced Maldonado on
May 28, 2025. Before the resentencing hearing, the government did
not submit a revised sentencing memorandum, and the probation
officer did not submit a revised PSR.3 In his own sentencing
memorandum, Maldonado requested a sentence of time served, based
on the guidelines calculation set forth in the plea agreement.
3 The probation officer submitted a revised PSR a few days after the resentencing hearing but only to reflect a change in Maldonado's criminal history category.
- 5 - At the resentencing hearing, the government scrupulously
fulfilled its obligations under the plea agreement. It began the
hearing by asking the district court to apply the sentencing range
contemplated by the plea agreement, not the PSR. It then went on
to explain that, because Maldonado had already served 48 months in
prison as of that date, it was requesting a sentence of time
served.
The government also supported Maldonado's request for an
adjustment to his criminal history category, in light of a 2023
amendment to the Sentencing Guidelines. See U.S.S.G. supp. app.
C, amend. 821, pt. A (U.S. Sent'g Comm'n 2023). That adjustment
would place Maldonado into a lower category -- Category II, as
opposed to Category III.
As for Maldonado, he reiterated his request for a
sentence of time served at the hearing. In arguing for that
sentence, he objected to the guidelines calculations in the PSR,
contending that the probation officer relied on evidence
introduced at Santana's trial that was not part of the record in
his case and was inconsistent with the facts set out in his plea
agreement.
After the parties finished their arguments, the district
court imposed its sentence. It began by stating its view that
"[t]he guidelines agreed [to] by the parties do not reflect the
seriousness of the offense." The court reached that conclusion,
- 6 - it explained, after "review[ing]" and "tak[ing] . . . into
consideration" "not only [Maldonado's] original sentencing hearing
but the trial transcript of the co-[d]efendant [Santana]."
Although Maldonado objected to the court relying on testimony from
Santana's trial, the court pointed out that Maldonado had "plenty
of notice" about that testimony because it was discussed in his
initial sentencing hearing and appeared in the PSR. Thus, the
court overruled Maldonado's objection and noted that it "agree[d]
with the findings made" in the initial sentencing hearing that
supported the application of the "aggravated assault" guideline.
Ultimately, the court adopted the PSR's guidelines calculations
(except for the criminal history category), resulting in a
guidelines sentencing range of 57 to 71 months in prison.
The district court then turned to the sentencing factors
set forth in 18 U.S.C. § 3553(a). Among other details from
Maldonado's background, the court highlighted Maldonado's history
of disciplinary violations while incarcerated. It described the
seven violations that Maldonado incurred even before he assaulted
the SCO in August 2020, and the additional five violations between
the date of the assault and Maldonado's initial sentencing in
August 2022.
In recounting Maldonado's background, the district court
also referred to five recent disciplinary violations that were not
- 7 - included in the PSR.4 Those violations involved conduct such as
refusing to obey an order, assault without serious injury, lying,
and refusing a drug test. The dates of these incidents ranged
from October 2022 (just after Maldonado's initial sentencing) to
March 2025 (three months before his resentencing). After listing
these five most recent disciplinary violations, the court remarked
that "Maldonado's pattern of conduct while incarcerated
demonstrates that this [d]efendant has yet to make steps towards
his rehabilitation and has no regard for rules or lawful behavior."
The district court then detailed Maldonado and Santana's
assault of the SCO, noting that the assault was part of Maldonado's
"demonstrated pattern of hostile behavior." The court continued:
While the [d]efendant allocuted that he has learned his lesson and that he has now control of his emotions, the truth of the matter is that the record proves him wrong, because after he was sentenced in this case, he has committed [five] other violations [while incarcerated]. He has no respect . . . for the law. And as I said, the risk of recidivism is high.
In light of these factors, the district court rejected
the parties' requested sentence of time served. Instead, it
There is some ambiguity in the record and briefing about 4
whether there were four or five such violations. We refer to five violations throughout this opinion, but the precise number is immaterial to our analysis.
- 8 - sentenced Maldonado to the "upper end of the amended guideline
range" -- 71 months.5
Maldonado promptly objected to the district court's
decision to rely on disciplinary violations not discussed in the
PSR (and thus unknown to his counsel) in determining his sentence.
The court responded, "I did not make a ruling . . . based on
[Maldonado's] violations at the correctional institution. I just
stated that this is an indication of [Maldonado's] poor prognosis
of his rehabilitation and the fact that it speaks as to his
possibilities of recidivism." The court continued that the
"sentence is based solely on the facts of [Maldonado's] case," but
then added, "I want to leave the record clear that . . . the
administrative charges . . . were mentioned solely for the
purposes of prognosis of rehabilitation." When Maldonado
reasserted his objection to any consideration of violations not
listed in the PSR, the court repeated, "[T]hey were not. The
sentence was imposed based on the Criminal History Category of II
and a base offense level of 24, based strictly on the facts of
this case. Of course, the [c]ourt takes into consideration the
prognosis of rehabilitation of this [d]efendant."
Maldonado timely appealed.
5 Maldonado is currently scheduled to be released on October 19, 2026.
- 9 - II. DISCUSSION
Maldonado contends that the district court procedurally
erred by violating our mandate in Maldonado I and by considering
extra-record facts in determining his sentence. We reject his
first challenge but find merit in the second.
A. Compliance with the Mandate
According to Maldonado, the district court violated
"both the letter and the spirit" of our decision in Maldonado I by
considering materials infected by the government's initial breach
of his plea agreement. As we explain, we disagree.
Because Maldonado acknowledges that he did not
articulate this objection below, our review is for plain error.
See United States v. Rosa-Borges, 174 F.4th 281, 287 (1st Cir.
2026). To pass the "demanding plain error test," Maldonado must
show "(1) that an error occurred (2) which was clear or obvious
and which not only (3) affected [his] substantial rights but also
(4) seriously impaired the fairness, integrity, or public
reputation of judicial proceedings." Id. (alteration in original)
(quoting United States v. Cheveres-Morales, 83 F.4th 34, 42-43
(1st Cir. 2023)). For an error to be "clear or obvious," it "must
be 'indisputable' in light of controlling law." United States v.
Muñoz-Gonzalez, 145 F.4th 21, 26 (1st Cir. 2025) (quoting United
States v. Rabb, 5 F.4th 95, 101 (1st Cir. 2021)).
- 10 - The mandate rule requires a district court to "follow
the decision of an appeals court and conform with its direction on
remand." Rosa-Borges, 174 F.4th at 287 (citation modified). This
obligation encompasses "both the letter and the spirit of the
mandate, taking into account our opinion and the circumstances it
embraced." Id. (citation modified). The mandate rule thus avoids
"relitigation in the trial court of matters that were explicitly
or implicitly decided by an earlier appellate decision in the same
case." Cheveres-Morales, 83 F.4th at 40 (quoting United States v.
Moran, 393 F.3d 1, 7 (1st Cir. 2004)).
Maldonado claims that the district court violated the
letter of the mandate by reviewing two documents -- the
government's sentencing memorandum and the initial sentencing
hearing transcript -- "the very materials this Court had already
determined were tainted by breach." And he is, of course, correct
that we held that the government breached the plea agreement
through its advocacy at the initial sentencing hearing.6
But Maldonado does not identify any language from
Maldonado I that explicitly or implicitly prohibited the district
court from reviewing materials associated with that hearing.
6 The government suggests that its sentencing memorandum was not part of the advocacy that breached the plea agreement, whereas Maldonado contends that the memorandum implied the use of an enhancement that was inconsistent with that agreement. The outcome of this dispute would not impact our decision, so we need not resolve it.
- 11 - Indeed, we expressly declined to cabin the resentencing court's
broad discretion on remand. See Maldonado I, 134 F.4th at 38-39.
We explained that "[t]he obligation of specific performance of the
plea agreement runs against the government, not the district
court," and that "the plea agreement did not bind the district
court to adopt the parties' recommended sentencing range." Id. at
38. Thus, our decision enforcing that agreement placed limits
only on the government. And given the "broad discretion" a
sentencing court has to "consider information pertaining to the
defendant" and his case, we could not possibly prohibit the court
from reviewing materials on its own docket. United States v.
Ramos-Carreras, 59 F.4th 1, 5 (1st Cir. 2023) (quoting United
States v. Millán-Isaac, 749 F.3d 57, 69 (1st Cir. 2014)); see 18
U.S.C. § 3661.
We are also unpersuaded by Maldonado's separate argument
about the "spirit" of our mandate. He submits that the district
court's review of the breaching materials undermined our ruling
reassigning the case to a different judge. In Maldonado's view,
the resentencing court's exposure to and reliance on the
government's advocacy in the initial hearing deprived him of a
"clean slate" on remand.
To be sure, the district court could have proceeded on
remand without reviewing the transcript of Maldonado's initial
sentencing hearing, which our opinion concluded was rife with
- 12 - advocacy by the government that breached the plea agreement. See
Maldonado I, 134 F.4th at 37-38. As the government points out,
however, the district court would have learned about most of the
details of the government's breach from reading our opinion.7
(Citing United States v. Castillo-Torres, 8 F.4th 68, 73 (1st Cir.
2021).)
On remand, Maldonado received the benefit of a
resentencing in which the government scrupulously adhered to its
promises in the plea agreement and advocated for the agreed-upon
sentencing range before a new judge. See United States v. Clark,
55 F.3d 9, 14 (1st Cir. 1995) ("[The defendant] offers that [plea]
not in exchange for the actual sentence or impact on the judge,
but for the prosecutor's statements in court." (quoting Correale
v. United States, 479 F.2d 944, 949 (1st Cir. 1973))). That was
the "clean slate" to which he was entitled.
In arguing otherwise, Maldonado cites only to our
decisions describing our practice of remanding to a different
district court judge when we have determined that the government
has breached a plea agreement. See, e.g., Mojica-Ramos, 103 F.4th
7 At oral argument, Maldonado contended that Maldonado I "describ[ed] the nature of the breach" in a single sentence. That is incorrect. We described the nature of the government's breach over the course of several paragraphs, detailing both its proposed guidelines calculations that were inconsistent with the plea agreement and the provocative language that it used to describe Maldonado and his conduct. See Maldonado I, 134 F.4th at 36-38.
- 13 - at 854. But he offers no clear authority for the proposition that,
once we do so, the court cannot review earlier filings and
proceedings in that case. Considering the "demanding" standard
for plain error, we discern no clear or obvious error in the
court's implementation of our mandate from Maldonado I and must
reject Maldonado's bid for vacatur on this ground. Rosa-Borges,
174 F.4th at 287.
B. Consideration of Extra-Record Materials
Maldonado next argues that the district court erred by
considering information from outside the record in determining his
sentence. On this point, we agree.
Maldonado contends that the district court referenced
and relied on two sets of extra-record materials during the
resentencing hearing: testimony from Santana's trial and the five
disciplinary violations that postdated his initial sentencing.
Because Maldonado preserved his objections to the court's
consideration of these materials, our review is for abuse of
discretion. See United States v. Coplin-Benjamin, 79 F.4th 36, 42
(1st Cir. 2023).
We begin and end our analysis with the district court's
consideration of Maldonado's latest disciplinary violations,
without any notice to the defense, which we conclude amounted to
- 14 - procedural error.8 According to Maldonado, the district court must
have learned about the newer violations during an ex parte
communication with the probation officer. The government does not
dispute that account.
In general, a district court may engage in ex parte
communications with a probation officer. See United States v.
Bramley, 847 F.3d 1, 6 (1st Cir. 2017). But "a convicted defendant
has the right to be sentenced on the basis of accurate and reliable
information, and . . . implicit in this right is the opportunity
to rebut the evidence and the information to be considered by the
court." Ramos-Carreras, 59 F.4th at 5 (citation modified). So we
have consistently held that, even when it comes from a probation
officer, "factual information relevant to sentencing must be
disclosed to the defendant." Bramley, 847 F.3d at 7; see
Ramos-Carreras, 59 F.4th at 6. Further, in determining a sentence,
a district court cannot rely on information shared by a probation
officer during an ex parte communication if that information is
both "new," "meaning information not already found in the district
court's record," and "significant" or "material[]."
Ramos-Carreras, 59 F.4th at 5 (quoting United States v.
Rivera-Rodríguez, 489 F.3d 48, 54 (1st Cir. 2007)).
We therefore do not reach Maldonado's argument about the 8
district court's consideration of evidence from Santana's trial. See Colón-Cordero, 91 F.4th at 58.
- 15 - The government acknowledges that the "district court
should have provided notice that it would consider an updated
disciplinary report at Maldonado's resentencing hearing." And it
concedes that the five newest disciplinary violations were not
included in the PSR and that defense counsel had no notice that
they might come up at that hearing. But it argues that there is
no reversible error here because the court did not "materially
rel[y] on" those violations in determining Maldonado's sentence.
Ramos-Carreras, 59 F.4th at 5 (quoting Rivera-Rodríguez, 489 F.3d
at 55).
The transcript of the resentencing hearing, however,
contradicts the government's argument and indicates that the
district court did rely on the extra-record information.
Immediately after listing the five new violations, the court
remarked that Maldonado's "pattern of conduct" showed he was not
rehabilitated and had "no regard for . . . lawful behavior." And
in explaining why it viewed Maldonado's "risk of recidivism [a]s
high," and why it doubted his claim during his allocution that he
had "learned his lesson," the court pointed to the disciplinary
violations he had committed "after he was sentenced in this case."
Almost immediately after this particular comment, the court
pronounced its sentence.
We have previously interpreted the proximity between a
sentencing court's reference to a fact and its announcement of the
- 16 - sentence as supporting the conclusion that the court relied on
that fact. See Ramos-Carreras, 59 F.4th at 7; United States v.
Navarro-Santisteban, 83 F.4th 44, 58 (1st Cir. 2023). Maldonado's
resentencing transcript supports that same inference.
What is more, when Maldonado objected to the district
court's reliance on the extra-record violations later in the
hearing, the court responded that they "were mentioned solely for
the purposes of prognosis of rehabilitation." The court even added
that, in determining the sentence, it "t[ook] into consideration
the prognosis of rehabilitation of this [d]efendant." Granted,
the court at other points used language that could be understood
to have disclaimed any reliance on the five violations. But we
cannot ignore its explicit statement that it factored the
violations into its analysis of Maldanado's "prognosis of
rehabilitation," along with its statement that his "prognosis of
rehabilitation" itself informed the sentence.
Indeed, considerations of a defendant's risk of
recidivism and potential for rehabilitation fit comfortably into
several of § 3553(a)'s factors for "determining the particular
sentence to be imposed." 18 U.S.C. § 3553(a). Those factors
include, for example, "promot[ion of] respect for the law" and
"protect[ing] the public from further crimes of the defendant."
Id. § 3553(a)(2)(A), (C). So the district court was correct to
include these factors in its analysis. But by explicitly
- 17 - connecting the extra-record disciplinary violations to core
sentencing considerations, the court indicated that they were
significant to its sentence.
The government responds that the district court was
focused on the forest, not the trees. According to the government,
it was not those five violations in particular but Maldonado's
"pattern of conduct" while incarcerated, in general, that cast a
shadow on his potential for rehabilitation. Stacked against dozens
of prior violations, the government claims, the five newer ones
were "duplicative and pale in significance."
This argument falls short for several reasons. First,
although the district court did emphasize a "pattern" of conduct,
it also described the five newest disciplinary violations one by
one and later referenced them specifically as undermining
Maldonado's claim of rehabilitation. That makes sense, given that
the court was analyzing his status at the time of the resentencing.
The violations that were not part of the record were much more
recent than the other, years-old incidents. The latest had
occurred in March 2025, just three months before the resentencing.
Those more recent violations were clearly, perhaps even
especially, relevant to the court's evaluation of Maldonado's
assertion that he had changed his ways.
Second, even if the district court had relied only on
Maldonado's overarching "pattern" of violations, a pattern cannot
- 18 - exist without its component parts. As the government itself puts
it, "Maldonado's behavior while incarcerated was at the forefront
of the proceedings." Thus, we have every reason to conclude that
the court considered the extra-record violations, which were more
recent, to be material to the durability of that "pattern."
Next, the government maintains that any procedural error
that did occur was harmless. See United States v. Negrón-Cruz,
153 F.4th 90, 103 (1st Cir. 2025) ("A procedural sentencing error
is harmless if the error did not affect the district court's
selection of the sentence imposed." (citation modified)). In
making this argument, it points to a portion of the sentencing
transcript in which it claims that the district court "clarified"
that the extra-record violations did not affect the sentence.
We read that portion of the transcript in a different
way than the government does. It is true that, after the district
court pronounced its sentence, defense counsel objected "to the
extent [the violations were] involved in any way in the calculus
of the sentence," and the court then responded, "[T]hey were not."
And our general practice is to take the sentencing court at its
word when it disclaims reliance on certain facts in fashioning a
sentence. See, e.g., Rosa-Borges, 174 F.4th at 289.
But here, the transcript reflects inconsistent
statements by the district court on this critical issue. At one
point, the court stated it was "tak[ing] into consideration" the
- 19 - extra-record violations; it also referenced the violations just
before pronouncing Maldonado's sentence. And in response to one
of Maldonado's objections, the court said that the extra-record
violations were "an indication of [Maldonado's] poor prognosis of
his rehabilitation" and noted "the fact that [they]
speak[] . . . to his possibilities of recidivism." Shortly
afterward, the court continued, "Of course, the [c]ourt takes into
consideration the prognosis of rehabilitation of this
[d]efendant." From our review, most of the court's comments on
the extra-record violations suggest that it did rely on them in
determining the sentence. Although one line of the transcript
suggests otherwise, we cannot agree that, in the broader context
of the hearing as a whole, the court "clarified" that the
extra-record materials were insignificant.9
Thus, we find prejudicial reversible error in the
resentencing proceedings and vacate Maldonado's sentence. See
Ramos-Carreras, 59 F.4th at 5.
At oral argument, the government offered one last data point 9
to support its position. In its view, the district court stated during a hearing on Maldonado's motion for bail pending appeal that it considered the extra-record violations to determine only the conditions of his supervised release, not his prison sentence. But we must conduct our analysis based on what the district court stated at the resentencing hearing, when it imposed Maldonado's prison sentence. And as we have explained, the transcript of the resentencing hearing indicates that the recent violations did impact his prison sentence.
- 20 - C. Remedy
Aside from vacating his sentence, Maldonado asks us to
remand this case to a different district court judge for
resentencing.10 The government objects to that request, noting
that we do so only in "unusual cases." (Quoting United States v.
Rodríguez, 146 F.4th 48, 59 n.20 (1st Cir. 2025).) But our
precedent makes clear that when a district court imposes a sentence
after relying on new and significant extra-record facts provided
during an ex parte communication with a probation officer, we
remand with instructions to reassign the case. See Ramos-Carreras,
59 F.4th at 7-8; United States v. Zavala-Martí, 715 F.3d 44, 54-55,
57 (1st Cir. 2013). And the government offers no argument for why
that line of precedent does not apply here. As a result, we grant
Maldonado's request and remand with instructions to assign this
case to a different district court judge.
III. CONCLUSION
For all these reasons, we vacate Maldonado's sentence
and remand for expedited resentencing before a different district
court judge.11
10 Although Maldonado asks that we remand with instructions to sentence him to time served if we find a violation of the mandate rule, he does not make that request as part of his challenge to the district court's reliance on extra-record materials. 11Maldonado's April 29, 2026 motion for bail pending appeal is therefore denied as moot.
- 21 -