United States Court of Appeals For the First Circuit
Nos. 22-1195 22-1218
UNITED STATES,
Appellee,
v.
REYNALDO ROSA-BORGES,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF PUERTO RICO
[Hon. Francisco A. Besosa, U.S. District Judge]
Before
Montecalvo, Hamilton,* and Rikelman, Circuit Judges.
Kevin E. Lerman, Research & Writing Attorney, with whom Eric Alexander Vos, Federal Public Defender, District of Puerto Rico, Héctor L. Ramos-Vega, Interim Federal Public Defender, District of Puerto Rico, and Franco L. Pérez-Redondo, Assistant Federal Public Defender, Supervisor, Appeals Section, were on brief, for appellant.
David C. Bornstein, Assistant United States Attorney, with whom W. Stephen Muldrow, United States Attorney, and Mariana E. Bauzá-Almonte, Assistant United States Attorney, Chief, Appellate Division, were on brief, for appellee.
* Of the Seventh Circuit, sitting by designation. April 26, 2024 RIKELMAN, Circuit Judge. In this set of appeals,
Reynaldo Rosa-Borges challenges two sentencing decisions by the
district court: a seventy-two-month sentence following his guilty
plea for unlawful firearm possession under 18 U.S.C. § 922(g)(1)
and a thirty-six-month sentence for violating the terms of his
supervised release for a previous conviction with this new unlawful
conduct.1 Because the district court imposed both sentences based
on factual findings derived from unreliable hearsay, we vacate and
remand for Rosa's resentencing.
I. BACKGROUND
We begin with the critical facts, drawn from "the
uncontested parts of the probation officer's presentence
investigation report (PSR), the plea agreement, and the
transcript[s] of the sentencing [and revocation] hearing[s]."
United States v. Colón-Cordero, 91 F.4th 41, 45 (1st Cir. 2024).
A. Rosa's Arrests in 2014 and 2021
In December 2014, Puerto Rico police officers observed
Rosa "engaging in what appeared to be a drug transaction." The
officers searched Rosa and found a Glock pistol, marijuana, and
various controlled medications. Rosa was subsequently charged
with, and pleaded guilty to, carrying a firearm in furtherance of
1 We refer to the appellant as "Rosa," consistent with his brief and "Spanish naming customs." United States v. Torres-Meléndez, 28 F.4th 339, 340 (1st Cir. 2022).
- 3 - a drug trafficking crime in violation of 18 U.S.C. § 924(c). The
district court sentenced him to five years' imprisonment and five
years' supervised release. Rosa was released from prison in May
2019, at which point his five-year term of supervised release began
to run.
On March 29, 2021, while Rosa was still on supervised
release, he had another run-in with the police. Police officers
were patrolling a beach in Yabucoa, Puerto Rico, after learning
about a drug shipment scheduled to land that evening. The officers
saw Rosa sitting in the back of a sports utility vehicle ("SUV")
alongside another man, Ángel Luis Santiago-Dávila ("Santiago").
The SUV, which belonged to Santiago, was parked on the beach with
the trunk facing the ocean. The two men sat beneath the open trunk
door.
The officers approached Rosa and Santiago. During a
conversation in which Santiago explained that he and Rosa had come
to the beach to snorkel, the officers saw a firearm in the SUV's
trunk. They subsequently detained both men and seized from the
car a loaded "7.62 caliber Norinco AK-47 type rifle-style pistol,"
"an ammunition magazine containing 30 rounds of 7.62 caliber
ammunition," two bags of marijuana, and three cellular phones.
The following day, March 30, officers searched Rosa's
aunt's home, where Rosa lived. The search yielded two rifle
magazines loaded with fifty-nine rounds of 7.62 caliber
- 4 - ammunition, collectively, and forty-one loose rounds of identical
ammunition (100 rounds total). Rosa's brother, Naim, was at the
property when the agents arrived to execute the search warrant.
In a sworn statement obtained by the police later that day, Naim
said:
[O]n March 30, 2021, [I] received a telephone call at around midnight from my brother Reynaldo Rosa telling me that if anything happens to him to go to the house, since I don't live there, to take out a green bucket from the bedroom[.] After that, I received a call from him at around 3AM telling me that he was under arrest at the Las Piedras command. I went to his residence to look for the bucket with no knowledge of what was inside. I picked it up and went to my home. When I got home, I opened the bucket to see what was inside and in it I found a black bag with what seemed to be a firearm. I didn't proceed to open the bag[.] I put everything away, bag and all, in a small safe with some boxes of ammo that were inside the bucket. I proceeded to put it away in the safe with the boxes of ammo and some individual pouches of marihuana, since I was nervous and didn't know what to do with it. Inside the green bucket there was also an open bag full of marihuana. Nervous, I went to his house to leave the bucket over there so I don't have that in my house. There was a lot of marihuana and I'm not [the type of] person that deals with these things, since I don't have anything to do with this, I don't consume it or anything. When I got to the house, without getting out of the vehicle, the agents arrived and read me the warnings to proceed in getting out of the vehicle. Nervous because of what was happening I got out and they gave me the search warrant. I told the agents that I don't live in that residence. I also let them know what I have in the vehicle and in my house without any fear since I know, and I let them know
- 5 - that it isn't mine and that I had no knowledge of what was in the house and that I don't live there. They proceeded with the search in my presence. I also told them that I was in the residence during morning hours. I want to be clear that none of this nor whatever was seized in the house. It's not mine. It belongs to the one who resides in the house, Reynaldo Rosa[-]Borges. I have nothing to do with what was seized over there since I'm a responsible person dedicated to my studies and work. I also state that I'm willing to cooperate in anything that's necessary.
In short order, Rosa's probation officer notified the
court that Rosa had violated the conditions of his supervised
release by possessing the gun and ammunition on March 29 and 30.
In May, Rosa appeared before a magistrate judge for a preliminary
revocation hearing to determine whether there was probable cause
to believe that he had violated the conditions of his supervised
release. See Fed. R. Crim. P. 32.1(b)(1)(A).
Rosa argued at the preliminary revocation hearing that
Naim's statement attributing possession of the 100 rounds of
ammunition to him was unreliable, hinting that Naim was seeking to
avoid his own criminal liability. He also pointed to
inconsistencies between Naim's statement and the government's
account. For example, the government insisted that Naim's bucket
had been "empty" when he returned to Rosa's residence, which
contradicted Naim's own sworn statement that he returned to the
house with the bucket because it contained an "open bag full of
marihuana" that he did not want in his own home. Separately, the
- 6 - government suggested that Naim consented to a search of his own
house and directed the police toward the firearm and ammunition in
his safe. But the government did not provide any documentation to
support this assertion, and it was ultimately never explained if
the items in Naim's safe were counted as part of what was seized
"at" Rosa's aunt's house. Although the magistrate judge expressed
confusion about these competing accounts of the March 30 search,
she nonetheless found probable cause to believe that Rosa had
violated the conditions of his supervised release and referred him
to a final revocation hearing.
One month later, on June 3, 2021, a grand jury indicted
Rosa for being a felon in possession of a gun in violation of 18
U.S.C. § 922(g)(1).
B. The Plea Agreement
Rosa pleaded guilty to Count Two of the indictment, which
charged that:
On or about March 29 and 30, 2021, in the District of Puerto Rico and within the jurisdiction of this Court, the defendant, REYNALDO ROSA-BORGES, knowing he had been convicted of a crime punishable by imprisonment for a term exceeding one year, did knowingly possess a firearm and ammunition -- to wit: a 7.62 caliber Norinco rifle-style pistol . . . loaded with a bullet in the chamber and an ammunition magazine containing 30 rounds of 7.62 caliber ammunition, an ammunition magazine loaded with 25 rounds of 7.62 caliber ammunition, an ammunition magazine loaded with 34 rounds of 7.62 caliber ammunition, and 41 rounds of 7.62
- 7 - caliber ammunition -- said firearm having been shipped and transported in interstate and foreign commerce.
The plea agreement included this charge in full. Under its terms,
the government and Rosa agreed to "recommend imprisonment within
the low to middle of the applicable [United States Sentencing]
Guidelines range." The parties also agreed that a recommendation
above or below this range would constitute a material breach of
the plea agreement.
The plea agreement also incorporated a stipulation of
facts, which both parties agreed were "accurate in every respect."
The stipulation described the events of March 29, 2021, when Rosa
and Santiago were spotted by officers on the beach. Rosa admitted
to "knowingly possess[ing]" the rifle-style pistol in the trunk
and the magazine that contained thirty rounds of ammunition.
The stipulation did not include, however, any reference
to the search of Rosa's residence on March 30 nor to the additional
100 rounds of ammunition seized that day. The government agreed
to this omission at Rosa's request but emailed Rosa to note that
"accommodating [his] request . . . should not be taken as a
concession from the government that the [information] was
incorrect." "Moreover," the government explained via email, "in
sentencing the defendant, the [d]istrict [c]ourt could consider
the events of March 30, 2021."
- 8 - At the change-of-plea hearing, the district court read
the charge in the plea agreement to Rosa. Rosa interjected to
explain that although he "ha[d] no contest . . . as to that being
the charge as to which he pleaded guilty," the stipulation of facts
was "more limited" regarding "the ammunitions that were
mentioned." The court responded that it would "get to the version
of facts later on" and asked Rosa whether he was pleading guilty
to the charge as read. After Rosa answered in the affirmative,
the district court accepted his guilty plea.
C. The Presentence Report
Before sentencing, the probation officer submitted a PSR
noting that Rosa had been charged with and pleaded guilty to
unlawful possession of a rifle-style pistol and 130 rounds of
ammunition but omitting reference to the search in which the extra
100 rounds of ammunition were found. The government informally
objected to this omission but, at Rosa's request, withdrew its
objection. On December 8, 2021, the government emailed Rosa to
explain that it agreed to withdraw its request to add information
about March 30 because "the facts in the current version of the
[PSR] [were] sufficient to support the government's sentencing
recommendation under the [p]lea [a]greement," but its actions
should not "be interpreted as a suggestion that the government
would be in breach of the [p]lea [a]greement if it were to argue
those facts in support of its sentencing recommendation."
- 9 - Nonetheless, the following day, the probation officer
submitted to the court an amended PSR that included the following
paragraph ("paragraph 13"):
13. [O]n March 30, 2021, a search was conducted at Mr. Rosa[-]Borges['s] address of record which yielded the seizure of one rifle magazine . . . loaded with 25 ammunitions of Caliber 7.62 x 39, one rifle magazine . . . loaded with 34 ammunitions of caliber 7.62 x 39, and 40 ammunitions of Caliber 7.62 x 39. During the search a family member reported that the items seized belonged to Mr. Rosa[-]Borges.2
Rosa objected by email to the inclusion of this paragraph on the
ground that "other person[s] lived and had access to the property
including the 'family member' -- his brother Naim -- who avoided
responsibility by laying responsibility at Mr. Rosa-Borges'[s]
feet." The probation officer declined to remove it, however,
because the count to which Rosa had pleaded guilty charged him
with possessing the ammunition seized during the March 30 search,
and thus "[t]he information [i]n paragraph 13 relate[d] to the
[c]ount of conviction."
The PSR indicated that Rosa had a total offense level of
nineteen and a criminal history category of III, which resulted in
2 Paragraph 13 suggests that only ninety-nine rounds of ammunition were seized in the search. The government insists that the "correct amount is 100 rounds." We use 100 throughout this opinion because it makes the math simpler. In doing so, we express no opinion on this factual dispute because it does not impact our decision.
- 10 - a guideline imprisonment range of thirty-seven to forty-six
months. Rosa filed a sentencing memorandum in which he requested
that the district court sentence him to thirty-seven months (the
lowest end of this range). Rosa explained that he had gone to the
beach to smoke marijuana with Santiago and only "became aware of
a firearm laying beneath clothing and other articles in the [SUV]'s
rear area" "[a]s the agents approached" the two men.
Separately, Rosa filed a formal objection to paragraph
13's inclusion in the PSR. He argued that the information was
"derive[d] from unreliable sources" because "[t]he
items . . . were found in a vacant bedroom," "others had access to
[the premises]," and "[t]he information as to the alleged ownership
of the items found was provided by . . . Naim . . . who had access
to the property . . . and wanted to avoid his own criminal
exposure." Although Rosa pleaded guilty to the firearm charge
alleging that he possessed 130 total rounds of ammunition, Rosa
argued that this did not "operate as a blanket admission of all
facts." Rosa specifically emphasized that he negotiated for the
plea agreement's stipulated facts to include only the 30 rounds
found with the gun at the beach on March 29 because he would not
have entered into a plea agreement that stipulated to his
possession of the additional 100 rounds found on March 30.
One day before Rosa's consolidated sentencing and
revocation hearings were to be held, the government submitted
- 11 - evidence to the court to support the facts laid out in paragraph
13, including Naim's statement and an inventory of the evidence
seized during the search. It did so "for the sake of completeness"
and "[b]ecause [Rosa] ha[d] challenged those findings." After
Rosa requested a continuance to respond to this motion, the court
rescheduled the hearings for February 24, 2022.
D. The Hearings
At the § 922(g)(1) sentencing hearing for the new
unlawful conduct, Rosa renewed his objection to paragraph 13's
inclusion in the PSR. After consulting with the probation officer
present at the hearing, the court denied the objection and
proceeded to sentencing. Rosa reiterated his request for a
thirty-seven-month sentence. For its part, the government
"st[ood] by the [p]lea [a]greement, and, accordingly,
recommend[ed] a sentence of [forty-two] months of imprisonment."
But it added that, "[c]onsidering the totality of the facts in
this case," it "[did] not credit the defendant's story," advanced
in his sentencing memorandum, "that he first saw the firearm
shortly before the police arrived and that his possession was very
brief."
Rosa responded that the government had breached the plea
agreement by introducing evidence related to the March 30 search
and alleging those facts at the hearing, which he contended the
government did to "induce" the court to pronounce a
- 12 - higher-than-agreed-upon sentence. The government characterized
this accusation as "frivolous" and pointed to the email exchanges
in which it retained the right to argue those facts "in support of
the recommended sentence."
After the court denied the breach-of-plea-agreement
claim, it pronounced Rosa's sentence for the § 922(g)(1)
conviction. It agreed with the PSR's calculated guidelines range
of thirty-seven to forty-six months. But, citing the Supreme
Court's decision in Kimbrough v. United States, 552 U.S. 85 (2007),
the court explained that it found an above-guideline sentence
necessary to "reflect[] the seriousness of the offense, promote[]
respect for the law, protect[] the public from additional crimes
by Mr. Rosa, and address[] the issues of deterrence and
punishment." In particular, it justified an upward variance based
on the fact that the guidelines do not account for the amount or
caliber of ammunition involved in an offense.3 Thus, taking into
account the ammunition possessed by Rosa and "the serious and acute
problem of gun violence in Puerto Rico," the court sentenced Rosa
to seventy-two months' imprisonment. Rosa objected to the sentence
as procedurally and substantively unreasonable.
3 Because we resolve this case on other grounds, we need not address Kimbrough's applicability nor the propriety of the district court's reliance on it.
- 13 - At the supervised release revocation hearing that took
place later that same afternoon, Rosa "restate[d] the objections
made at the sentencing phase." But he also argued that relying on
Naim's statement to revoke Rosa's supervised release without
presenting the witness violated his limited confrontation right
under Federal Rule of Criminal Procedure 32.1, which governs
revocation proceedings. The government responded that Rosa had no
such right at the revocation stage.
While the court was pronouncing Rosa's revocation
sentence, the government interrupted to let the court know that
Rule 32.1 does in fact provide a limited confrontation right to
defendants in revocation proceedings. Thus, to "avoid any issues
on appeal," the government asked the court "not [to] consider[]
the March 30 events" in formulating Rosa's sentence. The court
denied the request and sentenced Rosa to a consecutive term of
thirty-six months' imprisonment for the supervised release
violation.
Rosa immediately objected to the sentence as both
procedurally and substantively unreasonable. The government then
added that it understood that the court "ha[d] determined that the
interests of justice [did] not require [any] witnesses to appear."
The court responded only that the government "may have to argue"
that issue on appeal.
- 14 - II. DISCUSSION
Before us, Rosa raises a host of challenges to his
new-conduct and revocation sentences. His primary argument is
that the government breached the plea agreement by introducing
evidence regarding the March 30 search prior to sentencing and
failing to argue persuasively for a mid-range sentence at the
§ 922(g)(1) sentencing hearing. He also challenges both sentences
as procedurally and substantively unreasonable. After careful
consideration, we find no breach of the plea agreement, but we
conclude that procedural errors nonetheless warrant remand.
A. Breach-of-Plea-Agreement Claim
Although Rosa recognizes that the government technically
complied with its duty under the plea agreement to request a
low- to mid-range sentence on the § 922(g)(1) violation, he argues
that the government undermined its recommendation through implicit
support of an upward variance. Rosa contends, for example, that
the government encouraged the court to vary upward by filing the
pre-hearing motion introducing evidence related to the March 30
search and indicating at the hearing that it "did not credit"
Rosa's account of his brief possession of the gun, which he
advanced in his sentencing memorandum.
Before reaching the merits of this claim, we address a
few preliminary matters. First, as we previewed above, procedural
errors alone warrant vacating and reversing Rosa's consolidated
- 15 - sentence. Nevertheless, we conclude that we need to address Rosa's
plea-breach argument because, if it were successful, he would be
entitled to be resentenced by a different judge. See United States
v. Clark, 55 F.3d 9, 14 (1st Cir. 1995). And that is precisely
the remedy Rosa requests here. But our practice is to remand to
a new judge "only in very unusual cases." United States v.
Vásquez-Méndez, 915 F.3d 85, 88 (1st Cir. 2019). Thus, we address
Rosa's plea-breach claim to determine whether Rosa is entitled to
resentencing by a different judge, as he requests.
Second, the parties dispute the appropriate standard of
review. The government contends that Rosa did not preserve certain
aspects of his plea-breach claim. It points out that Rosa argued
at the sentencing hearing that the government had breached the
plea agreement by filing a pre-hearing motion to prove facts beyond
those in the stipulation. Thus, the government asserts, only that
particular claim is preserved and subject to de novo review. See
United States v. Almonte-Nuñez, 771 F.3d 84, 89 (1st Cir. 2014).
Relying on United States v. Davis, 923 F.3d 228 (1st Cir. 2019),
it urges us to apply plain-error review, at best, to Rosa's
remaining plea-breach arguments.
We decline to do so because this case is not like United
States v. Davis. The defendant in Davis objected to certain
conduct by the government at the sentencing hearing but did not
raise the general objection that the government had breached the
- 16 - plea agreement. Id. at 236-37. Here, by contrast, Rosa objected
at the sentencing hearing that the government was "making a
runaround around the [p]lea [a]greement" and pointed to the
government's conduct both before and during the hearing in support.
The district court immediately denied the objection and expressed
frustration that the Federal Public Defender's office was making
this allegation a "third time."4 Given that the court was aware
of the general nature of Rosa's plea-breach objection and already
had forcefully denied it, we conclude that Rosa was not required
to object throughout the hearing in order to preserve every aspect
of his claim. See Davis, 923 F.3d at 236 ("The point of a timely
objection is to bring a 'live' issue to the district court's
attention at a time when the court can effectively address any
error."). Thus, our review is de novo. See id.
As to the merits, we have previously found no breach
when the government introduced facts outside the stipulation in
the plea agreement in direct response to the defendant's argument
that "his 'transgressions' were 'isolated'" and "to support its
[sentencing] recommendation." United States v. Rivera-Ruiz, 43
4 Rosa's argument at the sentencing hearing was the first time he claimed that the government breached the plea agreement. Per the government's brief to us on appeal, "[t]he court was referring to other cases in which the Federal Public Defender had argued that other prosecutors had breached a plea agreement by submitting additional facts to the court." See United States v. Mojica- Ramos, Nos. 22-1204, 22-1205 (1st Cir. argued Mar. 6, 2024); United States v. Aponte-Colón, No. 22-1422 (1st Cir. argued Mar. 6, 2024).
- 17 - F.4th 172, 180 (1st Cir. 2022); see also United States v.
Rivera-Rodríguez, 489 F.3d 48, 58 (1st Cir. 2007). Here, the
government introduced additional evidence about the March 30
search only after Rosa claimed that his possession of the gun on
March 29 was a fleeting, isolated incident. At sentencing, the
government noted that it did not credit this account in explaining
why it did not support Rosa's request for a low-end guidelines
sentence. Thus, we construe the government's introduction of the
March 30 evidence as an effort to support its own mid-range
sentencing recommendation in direct response to Rosa's
characterization of his conduct.
To be sure, when coupled with the government's attack on
Rosa's credibility immediately following its sentencing
recommendation, we find somewhat troubling the government's
repeated attempts to draw the court's attention to the 100
additional rounds of ammunition. But the government's conduct was
ultimately consistent with both the text and the "spirit" of the
plea agreement. Rivera-Ruiz, 43 F.4th at 180. Rosa knowingly
pleaded guilty to a charge of possessing 130 rounds of ammunition,
so the court was already on notice of this conduct. The government
acquiesced to Rosa's requests to omit information about the March
30 search from the plea agreement and PSR but, in doing so, advised
Rosa that it retained the right to rely on those facts to support
its sentencing recommendation. It was the probation officer's
- 18 - decision to add paragraph 13 to the PSR, even after the government
had withdrawn its request to add the information regarding the
events of March 30. And the government was under no obligation to
support the version of events advanced in Rosa's sentencing
memorandum. Under these circumstances, we find that the government
did not breach the plea agreement.
B. Procedural Reasonableness
Rosa argues next that the district court's sentencing
decisions were procedurally and substantively unreasonable. We
begin, as we usually do, with the procedural claims. United States
v. Leach, 89 F.4th 189, 195 (1st Cir. 2023) ("In adjudicating
sentencing appeals, we typically begin by 'examin[ing] any claims
of procedural error' and -- if no procedural error is
found -- proceed to examine any challenge to the substantive
reasonableness of the sentence." (alteration in original) (quoting
United States v. Díaz-Lugo, 963 F.3d 145, 151 (1st Cir. 2020)));
see also United States v. Díaz-Rivera, 957 F.3d 20, 25 (1st Cir.
2020).
In Rosa's view, there were multiple procedural errors
below, but we need to evaluate only two of those claimed errors to
resolve these appeals. First, Rosa argues that the district court
violated Federal Rule of Criminal Procedure 32(i)(3)(B) by failing
to rule on a disputed factual issue in the PSR -- namely, whether
Rosa had possessed the additional 100 rounds of ammunition.
- 19 - Second, by crediting Naim's statement, Rosa contends that the
district court imposed sentences based on unreliable hearsay. We
address each argument in turn.
i. Federal Rule of Criminal Procedure 32(i)(3)(B)
At sentencing, the district court "may accept any
undisputed portion of the presentence report as a finding of fact."
Fed. R. Crim. P. 32(i)(3)(A). But "for any disputed portion of
the presentence report," the court must, under Rule 32(i)(3)(B),
"rule on factual disputes or conclude that a ruling is unnecessary
because the court will not take the disputed matter into account
when sentencing." United States v. Ford, 73 F.4th 57, 61, 63 (1st
Cir. 2023) (quoting Fed. R. Crim. P. 32(i)(3)(B)). Although we
prefer that the judge make an explicit ruling under this provision,
we will not reverse "so long as the record read as a whole reliably
shows that the judge implicitly resolved the defendant's
objections." Id. at 62 (cleaned up) (citation omitted). If the
"court's statements and the sentence imposed show that the facts
were decided in a particular way," then we can infer that the
district court implicitly resolved the factual dispute at issue.
United States v. Van, 87 F.3d 1, 3 (1st Cir. 1996).
Rosa contends that the district court failed to rule on
the parties' dispute about whether he possessed the extra 100
rounds of ammunition. In response, the government argues that
"there were no disputed facts before the court" because Rosa did
- 20 - not challenge the fact that (1) a search occurred at Rosa's
residence during which 100 rounds of ammunition were seized and
(2) a family member told the officers executing the search that
the ammunition belonged to Rosa. The parties disagree, too, over
whether Rosa preserved his Rule 32(i)(3)(B) argument by objecting
on this ground to the district court.
We need not wade into these particular disagreements.
See United States v. Carbajal-Váldez, 874 F.3d 778, 783 (1st Cir.
2017) ("[C]ourts should not rush to untangle knotty legal questions
when there is no real need to do so."). Even assuming that Rosa
preserved his objection, and the factual dispute is properly
characterized as whether Rosa possessed the extra 100 rounds of
ammunition, the "court's statements and the sentence imposed,"
Van, 87 F.3d at 3, make clear that the district court implicitly
resolved this issue. At sentencing, the district court denied
Rosa's request to remove paragraph 13 from the PSR. When it
summarized Rosa's conduct, it described the ammunition seized
during the March 30 search and its attribution of that ammunition
to Rosa. And when it varied upward to seventy-two months'
imprisonment, the district court did so because the guidelines "do
not take into account the amount of ammunition . . . possessed by
a defendant charged with possession of a firearm," and "[h]ere we
have a defendant who possessed . . . 130 rounds
of . . . ammunition." Thus, because the record "makes manifest
- 21 - that the court impliedly adopted" the view that Rosa possessed an
additional 100 rounds of ammunition, Rosa's Rule 32(i)(3)(B)
challenge fails. Carbajal-Váldez, 874 F.3d at 784.
ii. Sentencing Based on Unreliable Information
The district court's implicit ruling on this disputed
factual issue, however, does not end our procedural reasonableness
inquiry. Although "a district court has broad discretion at
sentencing to consider information pertaining to the defendant and
the defendant's offense conduct," United States v. Millán-Isaac,
749 F.3d 57, 69 (1st Cir. 2014), "it is axiomatic 'that a convicted
defendant has the right to be sentenced on the basis of accurate
and reliable information.'" United States v. Ramos-Carreras, 59
F.4th 1, 5 (1st Cir. 2023) (quoting Rivera-Rodríguez, 489 F.3d at
53). Indeed, due process requires it. United States v.
Rondón-García, 886 F.3d 14, 21 (1st Cir. 2018); see also United
States v. Tucker, 404 U.S. 443, 447 (1972); Townsend v. Burke, 334
U.S. 736, 741 (1948). Thus, imposing a sentence based on factual
findings that are, in turn, "based solely on unreliable evidence"
constitutes reversible error. United States v. Castillo-Torres,
8 F.4th 68, 71 (1st Cir. 2021); see also Rivera-Ruiz, 43 F.4th at
181 (noting that we "assay the court's factfinding for clear error"
when reviewing preserved procedural claims (citation omitted)).
We review reliability determinations for abuse of discretion.
Castillo-Torres, 8 F.4th at 71.
- 22 - Here, the district court found that Rosa possessed 130
rounds of ammunition. It made this finding on the basis of Naim's
statement "indicat[ing] that the items seized belonged to [Rosa]."
And the district court relied on this statement at both
hearings -- first, to extend Rosa's new-conduct sentence and,
second, to extend his revocation sentence. Although sentencing
and revocation proceedings are subject to different legal
standards regarding evidence, we conclude that the court's
reliance on Naim's statement was nonetheless erroneous in each
proceeding based on the reliability concerns we discuss below.
We begin with a key point: Naim's statement, as an
out-of-court statement offered for its truth -- i.e., that the
seized ammunition belonged to Rosa -- constitutes hearsay.5 See
United States v. Ramos-Baez, 86 F.4th 28, 71 (1st Cir. 2023). And
although a "sentencing court has broad discretion to accept hearsay
evidence," Rondón-García, 886 F.3d at 21 (citation omitted), it
cannot do so "[r]eflexively," United States v. Colón-Maldonado,
5Puzzlingly, the government resists this characterization of Naim's statement. But it is black-letter law that any statement "(1) the declarant does not make while testifying at the current trial or hearing; and (2) a party offers in evidence to prove the truth of the matter asserted in the statement" constitutes hearsay. Fed. R. Evid. 801(c). Naim's statement was not made at the sentencing hearing. And it was offered to prove that Rosa possessed the ammunition seized on March 30; indeed, the statement would have been entirely irrelevant if not offered for its truth. Thus, we reject the government's position that the statement is not hearsay.
- 23 - 953 F.3d 1, 10 (1st Cir. 2020). Instead, hearsay evidence used at
sentencing must be supported by other "indicia of
trustworthiness." Rondón-García, 886 F.3d at 21; see also
Colón-Maldonado, 953 F.3d at 10 ("[W]hen a court extends a
defendant's sentence based on hearsay, there must be other
signs . . . to permit a reasoned conclusion that the statements
are still reliable.").
Although "conventional substitutes for live testimony,"
such as sworn statements, "ordinarily possess sufficient indicia
of reliability," the inference is not automatic. United States v.
Marino, 833 F.3d 1, 5 (1st Cir. 2016) (emphasis added) (quoting
Gagnon v. Scarpelli, 411 U.S. 778, 782 n.5 (1973)); see also
Colón-Maldonado, 953 F.3d at 11 (explaining that affidavits
"usually pass[] muster" (emphasis added)). We still must assess
whether the statement is supported by other indicia of
trustworthiness. For example, in United States v. Brewster, we
held that the district court had not abused its discretion by
relying on a notarized statement at sentencing to find that the
defendant had a history of domestic abuse. See 127 F.3d 22, 28
(1st Cir. 1997). The defendant "virtually conceded the statement's
accuracy below, and failed to dispute the statement's contents in
the face of the district judge's explicit warning that, if accepted
as true, the statement would form part of the foundation upon which
the judge would decide what sentence should be levied." Id.
- 24 - (footnote omitted). Thus, we viewed the defendant's "refusal to
disavow the government's accusations . . . as an indicium of the
proffered information's trustworthiness," in addition to the fact
that the statement was made under penalty of perjury. Id.
Here, by contrast, Rosa has consistently challenged the
truthfulness of Naim's statement. Further, he repeatedly
characterized the statement as "unreliable" because it did not
account for the facts that the ammunition was not seized in Rosa's
room, various people had access to the residence, including Naim,
and Naim was incentivized to avoid his own criminal exposure.
Although recognizing the deference built into the abuse
of discretion standard, our review leads us to conclude that Rosa's
arguments have merit for two reasons. First, the particular
written statement at issue here, on its face, contains
inconsistencies, or at least logical gaps, and demonstrates Naim's
concern with avoiding criminal liability. Second, Naim's
statement contradicts in several respects testimony by the
government about the events of March 30. Given these gaps and
inconsistencies, the district court abused its discretion in
relying on this hearsay statement to increase Rosa's sentence.
To recap, in his statement, Naim describes responding to
his brother's request via a telephone call at 3:00 a.m. on March
30 to pick up a "bucket" from "the bedroom" of Rosa's residence
with "no knowledge of what was inside." Naim then allegedly took
- 25 - the bucket home, found a firearm and ammunition inside it, and put
those items along with several "individual pouches" of marijuana
he also found in the bucket into his safe, before returning the
bucket, which contained another "open bag full of marihuana," to
Rosa's residence. The police intercepted him outside of Rosa's
residence, where a "nervous" Naim claimed to have "no knowledge of
what was in the house" while simultaneously swearing that "whatever
was seized" belonged to Rosa.
This statement raises questions that tend to undermine
its reliability, at least without an opportunity to confront Naim
and ask about the apparent discrepancies. First, Naim claims that
he returned the bucket to Rosa's residence to avoid having
marijuana "in [his] house" because he "[does not] consume"
marijuana and is "not [the type of] person that deals with these
things." Yet Naim admitted that he had placed the "individual
pouches" of marijuana he found in the bucket into his safe. His
statement does not explain why he decided to return the bag of
marijuana but not the "individual pouches" if he did not want
marijuana "in [his] house." Second, Naim emphasized to the
officers that he "[did not] live" in the house that they searched
and "had no knowledge of what was in [there]." Thus, it is not
clear why Naim would be able to say reliably that "whatever was
seized" belonged to Rosa.
- 26 - Further, Naim's statement contradicts in several
respects the government's version of events. The government argued
at Rosa's preliminary revocation hearing that there was nothing in
the bucket that Naim had with him when officers intercepted him in
front of Rosa's residence on the morning of March 30. But Naim's
statement makes clear that he came back to Rosa's house with an
"open bag full of marihuana" in the bucket precisely to return the
marijuana to Rosa's residence because Naim did not want to store
it at his own home. And the government did not explain what reason
Naim might have had for returning an empty bucket to his brother's
house the morning of Rosa's arrest. Nor was the government
consistent in its account of where the bucket was found. During
the hearing, the prosecutor at one point seemed to suggest that it
had been seized at Naim's house. Further, although Naim stated
that he ran into the police when he pulled up to Rosa's aunt's
house to drop off the bucket purportedly containing marijuana, the
probation officer's summary of the police's inventory from the
search did not mention a bucket or marijuana and specified that
the items seized were "found to be inside" the aunt's house, not
in Naim's car.
Finally, Naim's concerns about criminal liability
reflected in the statement were legitimate: He was intercepted by
officers after he had removed contraband from the house and while
he (according to his own statement) had at least one bag of
- 27 - marijuana in his car. Statements to law enforcement against an
individual's own self-interest tend to be deemed reliable, see,
e.g., United States v. Teixeira, 62 F.4th 10, 23 (1st Cir. 2023),
but the converse is also true. An individual's highly self-serving
statement to law enforcement is less likely to be reliable. Under
these circumstances, we find that the reliability of Naim's
statement assigning ownership to Rosa is severely diminished.
Aside from these issues, Naim's account also raises an
unresolved question. It is entirely unclear whether the items
that Naim removed from Rosa's house and placed in his own safe
were counted among the inventoried items seized on March 30. The
government claimed at the preliminary revocation hearing that
Naim's house was searched with his permission and the firearm and
ammunition were seized from his safe. But Naim's statement
references only a search of Rosa's residence, not his own, and the
police officer's inventory lists Rosa's, not Naim's, residence as
the location where the 100 rounds of ammunition were found. We
therefore cannot discern from the record whether the ammunition
that Naim allegedly took from Rosa's house and put in his own safe
was included in the March 30 inventory.
The government nonetheless contends before us that the
district court did not err in relying upon the statement because
"the magazines and ammunition in [Rosa's home] . . . shared the
same unusual caliber as the loaded pistol he possessed." To be
- 28 - sure, "[o]bjective evidence that corroborates a witness's
testimony may provide persuasive proof of that testimony's
reliability." United States v. Fontanez, 845 F.3d 439, 443 (1st
Cir. 2017) (emphasis added); cf. United States v. Franklin, 51
F.4th 391, 397 (1st Cir. 2022) (suggesting that a hearsay statement
can be reliable, even when the speaker had a motivation to lie,
when there is substantial corroborating evidence in the record).
But we cannot conclude that it does so here. As we described
above, Naim's statement raises many troubling questions, none of
which the government addressed in its briefing. And we have no
evidence before us, other than the government's simple assertion,
to suggest that the seized ammunition is so unusual or rare that
we should overlook these issues.
In sum, Naim's sworn statement was self-serving and
confusing, and it contradicted in several respects the
government's version of events. The sole indicator of
trustworthiness proffered by the government -- that the seized
ammunition matched the loaded pistol found in Santiago's SUV on
March 29 -- is insufficient to overcome the statement's significant
inconsistencies. Under these specific circumstances, we conclude
that the district court abused its discretion by finding the
statement reliable. And because the statement was not reliable,
the district court erred by considering it as a basis to vary
upward in imposing Rosa's § 922(g)(1) sentence.
- 29 - This leads us, necessarily, to the same conclusion about
the revocation sentence. A court's discretion to rely on hearsay
evidence is even more limited in revocation proceedings than at
sentencing. As we described above, during sentencing proceedings,
hearsay is admissible so long as it bears sufficient indicia of
reliability. See United States v. Ramírez-Negrón, 751 F.3d 42, 52
(1st Cir. 2014). In revocation proceedings, the court's discretion
to rely on hearsay evidence is further circumscribed by Federal
Rule of Criminal Procedure 32.1(b)(2)(C), "which states that a
defendant in a revocation proceeding may 'question any adverse
witness unless the court determines that the interest of justice
does not require the witness to appear.'" United States v.
Navarro-Santisteban, 83 F.4th 44, 52 (1st Cir. 2023) (quoting Fed.
R. Crim. P. 32.1(b)(2)(C)). But a defendant's right to be
sentenced based on reliable evidence applies equally to sentences
imposed upon the revocation of supervised release. See
Colón-Maldonado, 953 F.3d at 9. Thus, the court's misplaced
reliance on Naim's statement is sufficient for us to vacate not
only the § 922(g)(1) sentence but also the thirty-six-month
revocation sentence.
Accordingly, we decline to address Rosa's argument that
by revoking his supervised release and sentencing him to thirty-six
months' imprisonment based in part on Naim's statement without
providing him the opportunity to cross-examine Naim, the district
- 30 - court violated his limited confrontation right under Rule
32.1(b)(2)(C).6 We take this route for a practical reason: Whether
this limited confrontation right applies during a revocation
hearing's "sentencing phase" is an open question in this circuit.
Colón-Maldonado, 953 F.3d at 8; see also United States v.
Torres-Santana, 991 F.3d 257, 265-66 (1st Cir. 2021). In previous
cases, we declined to resolve the question because the appellant's
challenge to the revocation sentencing court's use of hearsay
evidence succeeded under the more general reliability test. See
Colón-Maldonado, 953 F.3d at 9; Navarro-Santisteban, 83 F.4th at
55. Thus, we follow the example of previous panels and take that
same approach today.7
III. CONCLUSION
Because the court's reliance on unreliable hearsay
justifies vacating Rosa's consolidated sentence and remanding for
resentencing, we end our analysis here. See Colón-Cordero, 91
F.4th at 58 (vacating and remanding based on a procedural error
and therefore "leav[ing] untouched and intimat[ing] no view on
[the defendant's] other appellate challenges to his sentence[]").
The court did not find at the revocation hearing that "the 6
interest of justice" did not require Naim to appear, which Rosa contends was reversible error. We note, however, that Rule 32.1(b)(2)(C) unquestionably 7
applies during the guilt phase of a revocation hearing, and thus the government erroneously informed the court that "at the revocation stage . . . there's no right to confrontation."
- 31 - We vacate Rosa's new-conduct and revocation sentences and remand
to the district court for resentencing consistent with this
opinion.
- 32 -