United States Court of Appeals For the First Circuit
No. 22-1116
UNITED STATES OF AMERICA,
Appellee,
v.
WESLEY PORTELL-MÁRQUEZ,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF PUERTO RICO
[Hon. Francisco A. Besosa, U.S. District Judge]
Before
Kayatta, Howard, and Thompson, Circuit Judges.
Héctor Sueiro Álvarez, with whom Eric Alexander Vos, Federal Public Defender, and Franco L. Pérez-Redondo, Assistant Federal Public Defender, were on brief, for appellant.
David C. Bornstein, 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.
February 10, 2023 HOWARD, Circuit Judge. Having received the same
incarcerative sentence on remand that had been imposed prior to
his previous sentencing appeal, Wesley Portell-Márquez ("Portell")
challenges the imposition of his sentence of twenty-four months'
imprisonment for violating the terms of his supervised release.
Concluding that the sentence is both procedurally and
substantively reasonable, we affirm.
I. BACKGROUND
On October 1, 2019, Portell completed a thirty-seven-
month term of imprisonment for possession of a firearm following
a felony conviction, see 18 U.S.C. § 922(g)(1), and began a three-
year term of supervised release. Fifteen months into his term of
supervised release, Puerto Rico police officers intervened in a
domestic dispute between Portell and his pregnant consensual
partner. Portell was charged with two counts of aggravated abuse
pursuant to Article 3.2 of Puerto Rico's Domestic Violence law.1
Portell's probation officer subsequently informed the district
court that Portell had violated two separate conditions of his
supervised release that prohibited his commission of any federal,
state, or local crimes during the period of supervised release.
The probation officer's motion summarized the allegations
1Prior to Portell's revocation hearing in federal court, the state-court complaint against Portell was dismissed pursuant to Puerto Rico's speedy trial requirements.
- 2 - contained in the state criminal complaint against Portell,
including that Portell had pushed and punched his partner and had
broken her cell phone.
The district court held a revocation hearing on May 14,
2021. At the hearing, Portell admitted to violating the two
conditions of his supervised release, informing the court that "he
[wa]s not contesting the violations to the mandatory conditions
one and two, which were that he must not commit another crime, in
this case Article 3.2 of the Puerto Rico Domestic Violence Law,"
and that he was not contesting "docket entry 70, the motion filed
by the probation officer."
The hearing thus focused primarily on the issue of an
appropriate sentence. As to this, Portell argued that, properly
categorized, his conduct constituted a grade B violation, that the
appropriate guidelines range was eight to fourteen months'
imprisonment, and that a sentence of fourteen months was
appropriate given "the seriousness of the allegations" which
warranted a sentence at "the higher end of the guidelines."
Portell further represented to the court that this was his first
domestic violence incident and that he was willing to attend
couples therapy or anger management courses if the court deemed
those necessary to his rehabilitation. On the question of the
violation grade, the government deferred to the probation officer,
who contended that the violation was a grade A violation. The
- 3 - government then focused on "the gravity" of Portell's violation,
noting that he broke the victim's cell phone; forcefully pushed
her with both hands; and punched her in the face, which broke her
lip and required her to receive medical attention. The government
also stressed that the victim obtained an ex parte protection order
based on her fear for her security and indeed her life.
Acknowledging that Portell had "accepted that he committed the
violations," and weighing that against their seriousness, the
government argued for a sentence of eighteen months' imprisonment.
Given an opportunity to respond, Portell did not object to the
government's discussion or characterization of the facts alleged
in the complaint; instead, Portell reiterated that he believed his
conduct was a grade B violation and that the seriousness of the
offense warranted a sentence at the higher end of the guidelines.
The court determined that Portell's was a grade A
violation and calculated his Guidelines incarcerative range to be
eighteen to twenty-four months. The court then imposed a sentence
of twenty-four months' imprisonment, explaining that the sentence
was warranted "[t]o reflect the seriousness of the offense, promote
respect for the law, provide just punishment for the offense,
afford adequate deterrence, and to protect the public from further
crimes by Mr. Portell." In doing so, the court specifically noted
that "the State Court documents reflect that Mr. Portell physically
assaulted his pregnant consensual partner by punching her with his
- 4 - fist -- punching her mouth with his fist, breaking her cell phone,
and pushing her." Following the announcement of the sentence,
Portell objected "to the finding of a grade A violation,"
reiterated his argument that he had committed only a grade B
violation, and, on that sole basis, objected to the substantive
and procedural reasonableness of the sentence.
On Portell's appeal to this court, the government
conceded that the grading analysis conducted in the district court
was erroneous. We agreed, and in an order of judgment, vacated
and remanded to the district court on the grounds that the district
court's violation-grading process and conclusion were inconsistent
with our circuit's precedent. United States v. Portell-Márquez,
No. 21-1447, 2021 WL 5458605 at *1-2 (1st Cir. Nov. 22, 2021). In
that decision, we specifically noted that "[a]t the final
revocation hearing, [Portell] did not challenge the contents of
the operative violation report, but he did argue that the
violations should be treated as grade B violations for sentencing
purposes." Id. at *1.
On remand, the district court concluded that Portell's
was indeed a grade B violation and calculated his guidelines range
to be eight to fourteen months. Portell again argued that a
fourteen-month sentence was appropriate and informed the court
that he would be receiving treatment for his anger management
issues. The court then explained that it had "taken into
- 5 - consideration the factors set forth in [18 U.S.C. § 3553(a)], and
the seriousness of Mr. Portell's violations" and that it found his
violations to "reflect[] his complete lack of respect for the law,
the supervision process, and conditions of supervised release
imposed by this [c]ourt" and that "his original sentence [for the
original firearms offense] did not serve the objective of
punishment or deterrence." The court then imposed an upwardly-
variant sentence of twenty-four months of imprisonment, the same
length it had imposed after the original revocation hearing (and
the court also included an additional eighteen month term of
supervised release). In doing so, the court reiterated that "the
state court documents reflect that Mr. Portell physically
assaulted his pregnant consensual partner by pushing her and
punching in the mouth with his fist and breaking her cell phone."
Portell once again objected to the procedural and substantive
reasonableness of the sentence, arguing that it was improper for
the court to consider the state-court complaint and that, without
the complaint, there was no evidence or basis on which the court
could justify the above-guidelines sentence.
II. DISCUSSION
A.
We review the sentence imposed following the revocation
of supervised release for abuse of discretion. United States v.
Wright, 812 F.3d 27, 30 (1st Cir. 2016). Within this abuse of
- 6 - discretion review, "[w]e review factual findings for clear error,
arguments that the sentencing court erred in interpreting or
applying the guidelines de novo, and judgment calls for abuse of
discretion simpliciter." United States v. Laureano-Pérez, 797
F.3d 45, 80 (1st Cir. 2015) (quoting United States v. Serunjogi,
767 F.3d 132, 142 (1st Cir. 2014)).
B.
Portell appeals the sentence imposed by the district
court as both procedurally and substantively unreasonable, arguing
that the court lacked a sufficient basis on which to justify its
upwardly-variant sentence. According to Portell, the record was
devoid of specific information regarding the conduct underlying
his arrest, and thus the sentencing judge necessarily obtained
that information from, and premised the variance on, the Spanish-
language state-court criminal complaint in violation of the Jones
Act. See 48 U.S.C. § 864 ("All pleadings and proceedings in the
United States District Court for the District of Puerto Rico shall
be conducted in the English language."); United States v. Millán-
Isaac, 749 F.3d 57, 64 (1st Cir. 2014) ("As a consequence [of the
Jones Act], federal judges must not consider any untranslated
documents placed before them."). Portell's challenge fails,
however, because the district court did not rely on the Spanish-
language complaint to justify its sentence. The district court
instead relied on the probation officer's motion, and, critically,
- 7 - Portell's admission to the conduct described in that motion which
provided a sufficient basis on which the district court justified
its sentence.
i.
At sentencing, a "court may 'consider evidence including
letters, affidavits, and other material that would not be
admissible in an adversary criminal trial.'" United States v.
Colón-Maldonado, 953 F.3d 1, 3 (1st Cir. 2020) (quoting Morrissey
v. Brewer, 408 U.S. 471, 489 (1972)). However, the evidence
considered by the district court in determining an appropriate
sentence must be reliable. Id. (citing United States v. Portalla,
985 F.2d 621, 622 (1st Cir. 1993)); see also United States v.
Mills, 710 F.3d 5, 15 (1st Cir. 2013) ("[T]he court can consider
all kinds of relevant information regardless of admissibility at
trial (including hearsay that has never been tested by cross-
examination), provided it has 'sufficient indicia of reliability
to support its probable accuracy.'" (quoting U.S.S.G. § 6A1.3)).
"[T]he court has considerable leeway in deciding whether
particular evidence is reliable enough for sentencing purposes,
and we review only for abuse of discretion.'" Mills, 710 F.3d at
16.
Accordingly, while we have held that "a sentencing court
may not rely upon a bare arrest record or mere charges 'unsupported
by any admission or some other evidence' . . . [to] vary[] above
- 8 - the Guidelines based on the statutory sentencing factors
enumerated in 18 U.S.C. § 3553(a)," see United States v. Rivera-
Ruiz, 43 F.4th 172, 181-82 (1st Cir. 2022) (emphasis added)
(quoting United States v. Catillo-Torres, 8 F.4th 68, 71 (1st Cir.
2021)), we have also held that, where the allegations in an arrest
report or similar document are buttressed by some other evidence
providing the requisite sufficient indicia of reliability that the
conduct underlying the arrest occurred, a court is not precluded
from considering the arrest and conduct underlying it at
sentencing, id. at 184. We have found such indicia of reliability
to be present where the defendant either affirmatively admitted to
the conduct underlying the arrest or unproven charges, or did not
object to a presentence investigation report ("PSR") setting forth
the conduct. See id. (finding that "the district court acted
within its discretion in relying upon [an administrative]
complaint" because the defendant had not objected to the
description of events underlying the complaint in a PSR and thus
"the record supported a finding that the underlying conduct more
likely than not occurred"); see also United States v. Dávila-
Bonilla, 968 F.3d 1, 10 (1st Cir. 2020) (no error in district
court's consideration of a dismissed local charge at sentencing
because the defendant's "unobjected-to admissions to the
preparer's report provide some greater indicia of reliability that
the actions triggering the arrests occurred") (internal quotations
- 9 - and citation omitted); United States v. Rodríguez-Reyes, 925 F.3d
558, 565 (1st Cir. 2019) (finding that unobjected-to portions of
the defendants' PSR which described earlier arrests "provide[d]
'some greater indicia of reliability,' beyond the mere fact of
arrest, 'that the conduct underlying the arrest[s] took place'")
(alterations in original) (quoting United States v. Marrero-Pérez,
914 F.3d 20, 24 (1st Cir. 2019)). Further, "we have held that a
sentencing court may consider arrests not leading to convictions
where '[t]here is no reason . . . given [defendant's] failure to
contest the facts [in the PSR] and the absence of any acquittal,
to doubt that these facts occurred.'" Id. (alterations in original)
(quoting United States v. Tabares, 951 F.2d 405, 411 (1st Cir.
1991) (Breyer, J.)).
While these cases primarily dealt with a defendant's
admission, or failure to object, to conduct as described in a PSR,
we can fathom no principled reason for applying a different rule
where, as here, the defendant's admission is instead made to a
probation officer's motion identifying violations of supervised
release conditions. In such a situation, a district court may
rely on that admission as demonstrating reliably that the conduct
alleged occurred, just as we have previously held that it may do
so where the admission is made to conduct described in a PSR.
- 10 - ii.
Here, Portell admitted to the conduct alleged in the
probation officer's motion and this admission provided the
district court with a sufficiently reliable evidentiary basis to
conclude that the conduct underlying the arrest occurred and to
consider that conduct, as described in the motion and admitted by
Portell, at sentencing.
Portell argues that the district court misunderstood the
scope of his admission, claiming that while he admitted to
violating Article 3.2, and thus the conditions of his supervised
release, he did not admit to any specific conduct in violation of
Article 3.2. This argument is unavailing and contradicted by the
record.
At the revocation hearing, Portell specifically
represented to the court that he was not contesting "docket entry
70, the motion filed by the probation officer." Further, Portell's
arguments at sentencing were implicitly premised on the facts
alleged in the probation officer's motion, with Portell repeatedly
acknowledging "the seriousness of his offense" and the
appropriateness of a sentence at the high-end of the guidelines
range, representing that this was his first domestic violence
incident and demonstrating a willingness to attend anger
management courses. Portell's reliance on these facts in making
his sentencing arguments precludes him from now disclaiming their
- 11 - validity. Cf. United States v. Parrilla-Tirado, 22 F.3d 368, 373
(1st Cir. 1994) ("It is the policy of the law to hold litigants to
their assurances. . . . '[w]e will not permit a defendant to turn
his back on his own representations to the court merely because it
would suit his convenience to do so.'") (alteration in original)
(quoting United States v. Pellerito, 878 F.2d 1535, 1539 (1st Cir.
1989)).
Furthermore, Portell failed to raise any objection at
the initial revocation sentencing hearing when both the government
and the court specifically repeated, and extensively discussed,
the conduct alleged in the probation officer's motion. When
Portell did object at that hearing, the objection was limited to
the court's violation grading methodology and conclusion.
Accordingly, when we decided Portell's appeal on that issue we
expressed the same understanding as to the scope of Portell's
admission as the district court (which Portell now challenges):
that "[a]t the final revocation hearing, [Portell] did not
challenge the contents of the operative violation report . . ."
Portell-Márquez, 2021 WL 5458605 at *1 (emphasis added).
Portell also failed to raise an objection when the
district court once again discussed those same facts on remand in
advance of handing down its new sentence. When Portell finally
did object to the sentence, and to the court's reliance on the
conduct alleged in the probation officer's motion, he specifically
- 12 - stated that he "did not contest the allegations for sentencing
purposes" but nonetheless argued that the court could not rely on
those uncontested allegations at sentencing. The flaw in this
argument is that it would require a court to permit Portell to
admit to the conduct described in the officer's motion and to rely
on that conduct for the purposes of his own sentencing arguments,
but preclude the court from similarly considering that conduct in
crafting its sentence. Portell's challenge is thus without merit
and contradicted by the record. His admission to the conduct
alleged in the probation officer's motion provided the requisite
"indicia of reliability" that the conduct prompting his arrest
occurred and it was not an abuse of the court's discretion for the
court to consider that conduct at sentencing.
In addition to the scope of his admission, Portell's
challenge also focuses on the district court's reference to "the
state court documents" as demonstrating that the court nonetheless
improperly premised its sentence on the state-court complaint.
However, as discussed, the record reveals that the variance was
not premised on the state-court documents themselves but was
instead based on the probation officer's motion (which summarized
the allegations in the state-court documents) and, crucially,
Portell's admission to the conduct described therein. Indeed, the
court explained as much when Portell objected on these grounds at
the second sentencing hearing; the court noted that it considered
- 13 - that Portell punched his partner in the mouth and, when Portell
claimed that conduct had not been proven, responded that "that's
what's in the probation officer's motion, which [Portell] did not
contest." Accordingly, even if we were to agree with Portell and
conclude that the district court's reference to "the state court
documents" demonstrates that the court did consider Spanish-
language documents -- which we do not -- any Jones Act violation
would be harmless, and we would nonetheless affirm the sentence on
the basis that the Spanish-language information was merely
cumulative of the information to which Portell admitted and which
the district court properly considered in justifying its sentence.
See Millán-Isaac, 749 F.3d at 64-66 ("[N]ot all Jones Act
violations require reversal. . . . [I]f the untranslated evidence
is merely cumulative, any prejudice to the parties caused by this
court's inability to review untranslated evidence is
inconsequential and will not require reversal.") (citations
omitted).
Portell's claims of procedural and substantive error are
both premised on his arguments that the district court improperly
relied on the Spanish-language evidence and otherwise lacked a
sufficient basis on which it could justify the variant sentence.
Those arguments are, for the reasons discussed above, unavailing.
Further, we do not find any other error, procedural or substantive,
with the district court's sentencing methodology or the sentence
- 14 - it imposed. The district court "calculat[ed] the applicable
Guidelines Sentencing Range ('GSR'), address[ed] any objections to
the probation department's [motion], g[ave] both parties an
opportunity to argue for whatever sentence they deem[ed]
appropriate, consider[ed] the 18 U.S.C. § 3553(a) sentencing
factors, and explain[ed] the reasoning behind the chosen
sentence." Laureano-Pérez, 797 F.3d at 80 ("A sentence is
procedurally sound so long as the district court complies with
th[is] specifically delineated roadmap." (internal quotation marks
and citation omitted)). And, the court's variant sentence,
premised on the nature of Portell's violation, "reflects a
plausible sentencing rationale and a defensible result" and is
thus substantively reasonable. United States v. Soto-Soto, 855
F.3d 445, 450 (1st Cir. 2017) (internal quotation marks and
citation omitted). Affirmed.
- 15 -