United States Court of Appeals For the First Circuit
Nos. 22-1204 22-1205
UNITED STATES OF AMERICA,
Appellee,
v.
YAVIER MOJICA-RAMOS,
Defendant, Appellant.
APPEALS FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF PUERTO RICO
[Hon. Francisco A. Besosa, U.S. District Judge]
Before
Montecalvo, Hamilton,* and Rikelman Circuit Judges.
Kevin E. Lerman, Research & Writing Attorney, with whom Héctor L. Ramos-Vega, Interim Federal Public Defender, Eric Alexander Vos, Federal Public Defender, and Franco L. Pérez-Redondo were on brief, for appellant. E. Giovannie Mercado, Assistant United States Attorney, with whom W. Stephen Muldrow, United States Attorney, Mariana E. Bauzá-Almonte, Assistant United States Attorney, Chief, Appellate Division, and Julia M. Meconiates, Assistant United States Attorney, were on brief, for appellee.
* Of the Seventh Circuit, sitting by designation. June 6, 2024 MONTECALVO, Circuit Judge. In July 2021,
defendant-appellant Yavier Mojica-Ramos ("Mojica") entered into a
plea agreement under which he promised to plead guilty to
unlawfully possessing two machineguns in violation of 18 U.S.C.
§ 922(o) while he was serving a five-year term of federal
supervised release. For its part, the government agreed to
recommend a within-guidelines sentence for the § 922(o) charge.
Despite the parties' recommendations, the district court
ultimately imposed two upwardly variant sentences: (1) a
seventy-two-month sentence for Mojica's § 922(o) charge and (2) a
sixty-month statutory maximum revocation sentence to run
consecutively to Mojica's § 922(o) sentence.
For the reasons below, we find that the prosecutor's
sentencing advocacy did not conform to the most meticulous
standards of performance required by Mojica's entrance into the
plea agreement. To remedy the prosecutorial breach, we must vacate
Mojica's § 922(o) and revocation sentences, and we remand the
underlying cases for resentencing before a different judge.
- 3 - I. Background1
In May 2018, Mojica began a five-year term of supervised
release after serving a five-year sentence for possession of a
firearm in furtherance of drug trafficking, a felony under 18
U.S.C. § 924(c)(1).
On October 23, 2020, undercover Puerto Rico Police
Bureau officers were monitoring for violations of a COVID-19
executive order that required wearing facemasks in public places.
The officers saw Mojica walk into a hair salon without donning a
facemask and called for backup. Multiple officers and a
firearm-sniffing dog arrived at the salon, and the dog positively
alerted to a shoulder bag that the officers saw Mojica carrying.
The officers searched the bag and discovered two Glock pistols
that had been modified to be machineguns, sixty-two rounds of
ammunition, a plastic bag containing marijuana, and a white oval
pill.
On July 28, 2021, Mojica signed a plea agreement under
which he promised to plead guilty to unlawful possession of the
two modified machineguns in violation of 18 U.S.C. § 922(o). The
plea agreement required the parties to request a sentence within
1 Our recitation of facts is derived from the undisputed portions of the presentence report, the plea agreement, and the transcripts of the § 922(o) and revocation sentencing hearings. See United States v. Colón-Cordero, 91 F.4th 41, 45 (1st Cir. 2024).
- 4 - the guidelines range after Mojica's criminal history category
("CHC") was confirmed. The guidelines range for the § 922(o)
charge was later calculated without dispute as thirty-seven to
forty-six months based on Mojica's CHC category of III. One week
later, on August 5, 2021, Mojica pled guilty to the § 922(o)
charge.
A. The Government's Sentencing Memorandum
Before Mojica's sentencing for the § 922(o) charge, the
government filed its sentencing memorandum requesting an upper-end
guidelines sentence of forty-six months. Notably, the government
attached approximately 250 photos and a video extracted from
Mojica's cellphone as support for its sentencing request. The
photos depicted numerous firearms and large quantities of drugs,
and the video allegedly showed "an individual resembling [Mojica]
. . . recklessly brandishing an assault-style rifle by repeatedly
pointing the barrel at the individual who is recording the video."
The government summarized that these photos and the
video "are additional evidence that [Mojica] has an interest in,
and likely participates in, other criminal behavior beyond the
machinegun count charged." Relying on this "alarming content,"
the government called Mojica "an individual with a penchant for
high-capacity firearms, drugs, and criminal activity." Likewise,
it labeled Mojica as having an "affinity for high-capacity
firearms" and an "apparent infatuation with firearms." The
- 5 - government then urged the court to consider the cellphone content
as "additional information" on Mojica's criminal tendencies at
sentencing.
The government's sentencing memorandum also elaborated
on the dangerousness of machineguns and its belief that the images
from Mojica's phone "suggest" his "participat[ion] in other
criminal activity involving high-capacity, high-powered weapons of
war." The government specifically stated that "[t]he danger to
the community and the serious nature of the offense should be
considered exceptional in this case." Furthermore, the government
highlighted high rates of gun violence in Puerto Rico, the
purported deterrent effect of lengthy sentences for gun offenders,
and the "particularly strong" need to protect the public from
Mojica.
B. Mojica's Motion to Compel Specific Performance
In response to the government's sentencing memorandum,
Mojica filed a motion to compel specific performance of the plea
agreement. Mojica alleged that the government breached the plea
agreement by impliedly advocating for an upwardly variant sentence
through its sentencing memorandum, and he requested that the court
order specific performance and transfer the case to another judge
for sentencing. The government opposed the motion to compel,
arguing that it was required "to share with the [c]ourt information
relevant to the imposition of a sentence," and highlighted the
- 6 - need to "contextualize[] the offense to which [Mojica] recently
pleaded guilty."
After the motion to compel was fully briefed, the
district court issued an opinion and order denying Mojica's motion.
The court rejected Mojica's contention that the government had "no
. . . obligation" to provide the court with his cellphone content.
The court also agreed with the government that the photos and video
demonstrated Mojica's "affinity for the unlawful possession of
firearms and controlled substances," which "suggests a lack of
respect for the law and a threat to public safety." Furthermore,
the court concluded that the government had no duty to authenticate
the images before submitting them as part of its sentencing
memorandum. Lastly, the court did not find the government's
references to the case being "exceptional" to be violative of the
plea agreement.
Mojica filed a motion for reconsideration, which the
court denied on largely the same grounds. But unlike in its
initial order denying the motion to compel, the court's order on
reconsideration suggested its acceptance of the cellphone images
as bearing sufficient indicia of reliability. The court validated
the "inference" that Mojica saved the images on his phone, as
"[t]his evidence did not spontaneously appear on his device," and
concluded that he "does, indeed, have an affinity for firearms."
Moreover, because Mojica pled guilty to the machinegun possession
- 7 - charge, the court adopted the government's position that "it
logically follows that the nature of Mojica's affinity for firearms
is insidious."
C. The § 922(o) Sentencing Hearing
On February 28, 2022, the court held a sentencing hearing
for the § 922(o) charge. Mojica's counsel detailed the pertinent
mitigating factors and requested a thirty-seven-month sentence,
the bottom of the guidelines range.
After Mojica's counsel advocated for a
thirty-seven-month sentence, the government stated that it
"stand[s] by its recommendation made in the plea agreement," and
noted that it "is entitled to request a sentence at the upper end"
of the guidelines range. The government then formally requested
a top-of-guidelines sentence of forty-six months. Immediately
thereafter, the government discussed how Mojica's offense was
"part of a broader problem here in Puerto Rico where, frankly
speaking, armed violent crime is a disease." The government cited
statistics of exceptionally high murder rates in Puerto Rico, and
it specifically commented that Mojica's recidivism and "possession
of loaded machine guns" constituted "an even bigger part of the
problem" than the possession of firearms generally. The government
concluded its argument by reiterating its request for a
forty-six-month sentence.
- 8 - In issuing the sentence, the court rejected the parties'
recommendations for a guidelines sentence and imposed an upwardly
variant seventy-two-month sentence.2 Mojica's counsel objected to
the sentence as procedurally and substantively unreasonable. And
in particular, he incorporated by reference Mojica's prior
objection to prosecutorial breach raised in his motion to compel
specific performance.
D. The Revocation Sentencing
Immediately following the § 922(o) sentencing, the
district court held a supervised release revocation hearing and
issued Mojica's revocation sentence. The guidelines range for the
revocation sentence was calculated without dispute as twenty-four
2 As part of its sentencing explanation, the court described machineguns as "dangerous and unusual weapons." The court then invoked the Supreme Court's decision in Kimbrough v. United States, 552 U.S. 85 (2007), and stated its disagreement "with the Sentencing Commission's low guideline range in machine gun cases" before asserting that the guidelines "do not take into account the amount of ammunition or high-capacity magazines possessed by a defendant" in a § 922(o) case. In addition, the court noted its consideration of "the serious and acute problem of gun violence in Puerto Rico," and statistics purportedly demonstrating that "firearms offenders recidivate at a higher rate and more quickly than non-firearms offenders." Along with summarizing Mojica's background and the offense conduct, the court referenced Mojica's prior offense (which also involved possession of firearms and ammunition), his "total disregard for the law," and lack of rehabilitation as warranting an upwardly variant seventy-two-month sentence. Because we focus on Mojica's prosecutorial breach claim as the primary basis for his challenge to the § 922(o) sentence, we do not address the propriety or sufficiency of the court's explanation for issuing its upwardly variant sentence.
- 9 - to thirty months. Mojica's counsel requested a twenty-four-month
sentence to run concurrently with the seventy-two-month § 922(o)
sentence. The government reiterated the dangerousness of
machineguns and Mojica's "callousness for the rules," requesting
a thirty-month consecutive revocation sentence.
The court revoked Mojica's supervised release and
reexplained the offense conduct. Before issuing the sixty-month
statutory maximum revocation sentence, the court cited "the
seriousness of the violations," Mojica's lack of "respect for the
law," Mojica's failure to "perform[] pro-social activities that
could have had a positive impact on his rehabilitation," and how
"the original sentence did not serve the objective of punishment
or deterrence" as the bases for imposing a significant upward
variance. Mojica's counsel objected to the sentence as
procedurally and substantively unreasonable, specifically
referencing that Mojica opposed the court's decision to upwardly
vary.
In total, the court sentenced Mojica to eleven years of
incarceration -- seventy-two months for the § 922(o) charge,
followed by a sixty-month consecutive revocation sentence. Mojica
then filed these timely appeals.
- 10 - II. Discussion
A. Mojica's Prosecutorial Breach Claim
"If a proper objection is brought before the district
court, breaches of plea agreements present questions of law for
plenary review." United States v. Gonczy, 357 F.3d 50, 52 (1st
Cir. 2004). Mojica has preserved his prosecutorial breach claim
by raising in-depth objections in his motion to compel specific
performance and reraising the objection after the § 922(o)
sentence was issued.3 We thus review his claim de novo.
3 The government agrees that Mojica has preserved his prosecutorial breach claim to challenge his § 922(o) sentence. But Mojica insists that the government's conduct in advocating for a high-end revocation sentence should also be considered as part of its breach of the plea agreement for the § 922(o) charge. The government correctly points out that the plea agreement did not make any mention of the revocation proceedings, and Mojica has not identified any cases suggesting that the government's statements related to the revocation sentence can be imputed as prosecutorial breach of the § 922(o) plea agreement. We therefore cabin our prosecutorial breach analysis to the government's sentencing advocacy for the § 922(o) charge. Relatedly, for the first time in his reply brief, Mojica argues that the plea agreement language bound the parties to advocate for the same within-guidelines sentence for the § 922(o) charge. "[A]rguments raised for the first time in an appellate reply brief [are] ordinarily deemed waived," United States v. Casey, 825 F.3d 1, 12 (1st Cir. 2016), unless the appellant raised the argument in a reply because it was the "earliest point when it was logical to do so," Holmes v. Spencer, 685 F.3d 51, 66 (1st Cir. 2012). Mojica had every opportunity and reason to raise this argument sooner; he also never objected below to the government's repeated representations that the plea agreement allowed it to seek a high-end guidelines sentence. We see no reason to excuse waiver here, and we will not evaluate whether the plea agreement required the parties to request the same § 922(o) sentence.
- 11 - "[W]hen a plea rests in any significant degree on a
promise or agreement of the prosecutor, so that it can be said to
be part of the inducement or consideration, such promise must be
fulfilled." Santobello v. New York, 404 U.S. 257, 262 (1971).
And because "[a] defendant who enters into a plea agreement waives
a panoply of constitutional rights[,] . . . we hold prosecutors to
'the most meticulous standards of both promise and performance.'"
United States v. Almonte-Nuñez, 771 F.3d 84, 89 (1st Cir. 2014)
(quoting United States v. Riggs, 287 F.3d 221, 224 (1st Cir.
2002)). "Such standards require more than lip service to, or
technical compliance with, the terms of a plea agreement." Id.
Where a defendant alleges that a prosecutor breached a plea
agreement, "[w]e consider the totality of the circumstances in
determining whether a prosecutor engaged in impermissible
tactics." Id. at 91.
At the outset, the government heavily relies on its
technical compliance with the plea agreement as assurance that it
did not breach the agreement. To be sure, the government
irrefutably abided by its obligation to ask for a sentence "within
the applicable Guidelines range" and never explicitly requested an
above-guidelines sentence.
Beyond recognizing that the government technically
complied with the agreement by recommending a within-guidelines
sentence, however, we cannot validate the government's "overall
- 12 - conduct" as "reasonably consistent with making such a
recommendation, rather than the reverse." United States v. Canada,
960 F.2d 263, 269 (1st Cir. 1992). Here, the government presented
the court with approximately 250 photos of firearms and drugs and
an unanalyzed video of an individual "resembling" Mojica to offer
"additional evidence" of his "likely" participation in "other
criminal behavior beyond the machinegun count charged." And even
more problematically, the government told the court that the
offense and Mojica's dangerousness "should be considered
exceptional."
To defend its submission of the cellphone content and
its characterization of Mojica's conduct, the government points to
its obligation to provide "relevant facts" for the court's
sentencing considerations. We have acknowledged the difficulty in
"reconcil[ing] competing centrifugal and centripetal forces: the
prosecution's solemn duty to uphold forthrightly its end of any
bargain that it makes in a plea agreement, and its equally solemn
duty to disclose information material to the court's sentencing
determinations." United States v. Saxena, 229 F.3d 1, 5 (1st Cir.
2000) (citations omitted). In that vein, we have consistently
safeguarded the prosecutor's right and obligation to "accurately
answer[] a judge's query by citing objective facts responsive to
the question, or rebut[] factual assertions made by defense
counsel." United States v. Miranda-Martinez, 790 F.3d 270, 275
- 13 - (1st Cir. 2015). Similarly, where the government becomes aware of
information that has "an easily discernible relationship to the
offense conduct," it must disclose those facts to the sentencing
court. Saxena, 229 F.3d at 6; see also United States v.
Ubiles-Rosario, 867 F.3d 277, 288 (1st Cir. 2017).
But a prosecutor is not free to present this information
to the court in ways that subvert the plea agreement's "limits
[on] the purpose of [their] remarks." Miranda-Martinez, 790 F.3d
at 275. For example, "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." Id. A prosecutor also may not discharge
their plea obligations in an "impermissibly equivocal, apologetic,
or begrudging" manner. United States v. Davis, 923 F.3d 228, 239
(1st Cir. 2019). Put differently, a prosecutor may not use their
duty of candor "as an instrument for thwarting" their plea
agreement obligations. Saxena, 229 F.3d at 6.
Even if we accept the government's contention that its
duty of candor compelled it to disclose the photos and video, it
made several serious and unacceptable missteps in presenting this
information to the court. First, the government's
characterization of the offense and Mojica's dangerousness as
"exceptional" violated the plea agreement's mandate that it
request a within-guidelines sentence. The government did not
- 14 - address its description of the case as "exceptional" in its
briefing before this court. But when asked about this conspicuous
omission at oral argument, the government responded that depicting
the conduct as "remarkable" or "really bad" by using the word
"exceptional" should not be read as implicitly recommending an
upward variance. Instead, the government insisted that calling
Mojica's conduct "exceptional" was appropriate given the
government's request for a high-end guidelines sentence.
We disagree. As the government is well aware, courts
may issue upwardly variant sentences where "the case at hand falls
outside the 'heartland' to which the Commission intends individual
Guidelines to apply." Rita v. United States, 551 U.S. 338, 351
(2007). Where the offense involves "idiosyncratic facts," United
States v. Bruno-Campos, 978 F.3d 801, 806 (1st Cir. 2020), or
"especially heinous" conduct, United States v. Rivera-Morales, 961
F.3d 1, 19 (1st Cir. 2020), a court may impose an upward variance
to account for the fact that the guidelines' "heartland" merely
contemplates a typical or "mine-run" case, see United States v.
Del Valle-Rodríguez, 761 F.3d 171, 177 (1st Cir. 2014). Calling
the offense "exceptional" -- especially in a sentencing memo that
repeatedly underscored Mojica's "penchant" for crime and
"infatuation with firearms" -- implied that the government saw
Mojica's case as falling outside the guidelines' heartland.
Similarly, during the sentencing hearing, the government referred
- 15 - to Mojica's conduct as "a big part of the problem" of violent crime
in Puerto Rico.
Although the government was permitted to explain its
rationale for a high-end guidelines sentence, see United States v.
Irizarry-Rosario, 903 F.3d 151, 155 (1st Cir. 2018), here, the
government went beyond presenting pertinent information in an
objective manner to gratuitously framing Mojica's case as
exceptional or extraordinary. Nor was this information presented
in response to Mojica's sentencing advocacy or the court's
questioning. The government thus impermissibly signaled to the
court that Mojica should be subject to greater punishment than it
had promised in agreeing to recommend a within-guidelines
sentence. See Canada, 960 F.2d at 271 (finding breach where "the
government's efforts seemed directed at encouraging a higher
sentence than the one to which it had agreed"); United States v.
Clark, 55 F.3d 9, 12-13 (1st Cir. 1995) (finding breach where the
government "suggest[ed] that it thought no [sentencing] adjustment
was appropriate" when the plea agreement prohibited it from
opposing the adjustment); United States v. Cortés-López, 101 F.4th
120, 129, 133 (1st Cir. 2024) (finding breach where the
government's "unsolicited statement" indicating that "the plea
agreement included an inaccurate guidelines calculation" was
"tantamount to a repudiation of the agreement").
- 16 - Second, and relatedly, the government was not "merely
drawing facts and law to the court's attention," Clark, 55 F.3d at
13, when it encouraged the court to consider the photos and video
as "additional evidence" of Mojica's "likely" participation in
other unproven criminal conduct. We have repeatedly explained
that "a sentencing court may not rely upon a defendant's prior
arrests or unproven charges in fixing a sentence, unless there is
proof by a preponderance of the evidence that the defendant engaged
in the underlying conduct alleged." United States v. Rivera-Ruiz,
43 F.4th 172, 181–82 (1st Cir. 2022) (collecting cases).
But if proven by a preponderance of the evidence,
uncharged criminal conduct can be "offered to demonstrate [the
defendant's] under-represented criminal history score . . . or his
history and characteristics, under § 3553(a)," allowing the
sentencing court to "'infer unlawful behavior' from such conduct
to be factored into sentencing." Id. at 182 n.6 (quoting United
States v. Colón-Maldonado, 953 F.3d 1, 9 (1st Cir. 2020)). In
other words, when sufficient proof exists, a sentencing court may
upwardly vary from the guidelines by relying on uncharged conduct.
See, e.g., United States v. Gallardo-Ortiz, 666 F.3d 808, 815 (1st
Cir. 2012); United States v. Rodríguez-Reyes, 925 F.3d 558, 565-66
(1st Cir. 2019).
The government's duty of candor does not allow it to
goad the court into relying on uncharged conduct without providing
- 17 - any corroborating evidence that Mojica was involved in the alleged
firearm and drug crimes depicted in the cellphone content. Aside
from stating that the images were extracted from Mojica's phone,
the government did not attempt to demonstrate by a preponderance
of evidence that Mojica was involved in the purported crimes. And
none of the images definitively portrayed Mojica as a perpetrator.
In fact, the government concedes that it did "not submit[] evidence
to support" finding that "any [of the] substances depicted in the
photos" were actually illegal drugs, "any guns were used in
connection with drug trafficking or any other crimes," or that
Mojica "physically possessed" any of the pictured drugs or guns.
In addition, during oral argument, the panel pressed the
government on its failure to professionally analyze the cellphone
video to identify Mojica, and the government made no effort to
refute this concern. Rather, the government maintained that it
was proper to suggest to the court that Mojica was depicted in the
video after "multiple people" viewed the video and agreed the
person holding the gun resembled him.4
4 For purposes of assessing prosecutorial breach, we also reject the government's contention that, because the district court did not explicitly indicate its reliance on the cellphone content at sentencing, Mojica's concern over the reliability of the photos and videos is a "red herring." In reviewing a preserved prosecutorial breach claim, "[w]hether or not the sentencing judge was actually influenced by the Assistant United States Attorney's actions is not a material consideration." Canada, 960 F.2d at 271.
- 18 - Therefore, in full context of its sentencing advocacy,
the government's insistence that the court consider unproven
conduct -- seemingly under the guise of identifying public safety
and deterrence issues -- further signaled to the court that the
prosecutor did not genuinely believe the recommended guidelines
sentence was appropriate. Indeed, in so doing, the government
suggested a basis for the court to upwardly vary while neglecting
our sentencing caselaw's limitations on considering uncharged
conduct.
We recognize that the government was undoubtedly
authorized to explain its rationale for a high-end guidelines
sentence without "sugarcoat[ing] the facts." Almonte-Nuñez, 771
F.3d at 91. But despite telling the court that it was requesting
a within-guidelines sentence, under the totality of circumstances
here, "the substance of the prosecutor's argument . . . can only
be understood to have emphasized [Mojica's] wrongdoing . . . ,
advocating for the imposition of a higher sentence than [an]
agreed-upon [guidelines] term." Gonczy, 357 F.3d at 53. By
effectively "urging the court to impose a lengthy sentence within
a context suggesting that [they] had in mind something greater
than" the within-guidelines sentence the parties agreed upon,
Canada, 960 F.2d at 270, the prosecutor wrongfully undermined the
plea agreement. Accordingly, we vacate Mojica's § 922(o) sentence
based on the government's plea agreement breach.
- 19 - B. Remedy for Prosecutorial Breach
Having concluded that the prosecutor breached the plea
agreement, we must consider the appropriate remedy. In addition
to vacating his § 922(o) sentence, Mojica also asks us to vacate
his revocation sentence. He further requests that we order the
district court to reduce both sentences to the low end of the
respective guidelines ranges and mandate that the sentences run
concurrently.
We begin with whether to vacate Mojica's revocation
sentence based on the government's breach. Here, the revocation
proceedings began immediately after the § 922(o) sentencing
concluded. Mojica contends that but for the government's breach
of the § 922(o) plea agreement, the district court would not have
been predisposed to believe "that [Mojica] was somehow linked to
violent crime and drug trafficking" when it commenced the
revocation proceedings. And indeed, after Mojica's counsel
reraised his objection to the reliability of the cellphone data at
the start of the revocation sentencing, the government continued
to insist on the propriety of submitting the cellphone content.
In particular, the government informed the court that it had timely
produced the extraction metadata to Mojica's counsel and the video
purporting to show Mojica brandishing the gun was taken
approximately one month before Mojica was arrested for the § 922(o)
- 20 - The government is correct that it did not agree to
recommend any particular sentence at the revocation sentencing.
We also recognize that the revocation sentencing constituted a
separate proceeding implicating different punitive concerns than
Mojica's § 922(o) sentence. But at bottom, we "really cannot
calculate how the government's error and breach may have affected
the perceptions of the sentencing judge." United States v.
Alcala-Sanchez, 666 F.3d 571, 577 (9th Cir. 2012). Here, the same
sentencing judge imposed a statutory-maximum revocation sentence
on the heels of the § 922(o) sentencing. Though we do not
"question the fairness of the sentencing judge," as "the fault
here rests on the prosecutor," we must craft a remedy that properly
corrects the government's error. Santobello, 404 U.S. at 263.
Given our broad discretion to shape remedies for prosecutorial
breach, Clark, 55 F.3d at 14, we thus vacate Mojica's revocation
sentence.
Although we have vacated and remanded a sentence "with
instructions to impose a specific sentence in order to achieve
specific performance of [a plea] agreement," we have cautioned
that such a "remedy is extraordinary, however, depriving the trial
court of its discretion in sentencing." United States v.
Kurkculer, 918 F.2d 295, 299 (1st Cir. 1990). Mojica's preferred
remedy does not bind us. See Canada, 960 F.2d at 271 ("The choice
of remedy rests with the court and not the defendant."). We
- 21 - decline to remand with orders to impose particular sentences, but
rather, "in accordance with our normal practice" upon finding
prosecutorial breach, we remand the § 922(o) and revocation
sentences for resentencing before a different judge. United States
v. Mercedes-Amparo, 980 F.2d 17, 20 (1st Cir. 1992); accord Clark,
55 F.3d at 15; United States v. Velez Carrero, 77 F.3d 11, 12 (1st
Cir. 1996); Canada, 960 F.2d at 271.
III. Conclusion
For the foregoing reasons, we vacate Mojica's § 922(o)
sentence and revocation sentence. We remand his cases for
resentencing in both matters before a different judge.5
5 At oral argument and in a Rule 28(j) letter, Mojica's counsel identified that the guidelines were recently amended, and such changes took effect on November 1, 2023. Mojica's counsel suggests that based on Amendment 821 (which the Commission has designated as applying retroactively starting on February 1, 2024, see U.S. Sent'g Guidelines Manual § 1B1.10(a), (d) (U.S. Sent'g Comm'n 2023)), Mojica's CHC should be lowered; and correspondingly, the guidelines range for the § 922(o) charge should be reduced to thirty-three to forty-one months. We do not purport to recalculate Mojica's CHC or guidelines range on appeal, but we respectfully advise the district court tasked with resentencing to consider the effect of any pertinent retroactive amendments on Mojica's guidelines ranges.
- 22 -