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First Circuit: Plain Error Where District Court Based Upward Variant From Sentencing Guidelines Range on New Information Not Already in the Record at the Time of Sentencing

by Douglas Ankney

The U.S. Court of Appeals for the First Circuit found plain error where the U.S. District Court for the District of Puerto Rico based an upward variance from the Guidelines range on new information not already in the record at the time of sentencing.

In 2011, Angel Ramos-Carreras received a five-year prison sentence and eight years of supervised release for drug-related offenses. In 2020, while serving his time of supervised release, he was arrested “for an investigation on lewd acts” and charged with violating Article 133 of the Puerto Rico Penal Code, which classifies as a third-degree felony the conduct of: “Any person who without the intention to consummate the crime of sexual assault submits another person to an act that tends to awaken, excite or satisfy the sexual passion or desire of the accused, under any [one of six enumerated circumstances - including the age of the victim being less than 16 years].” The U.S. Probation Office promptly filed a motion in the District Court to notify it that Ramos had violated the “shall not commit another federal, state, or local crime” condition of his supervised release.

At sentencing before the District Court judge, all agreed the Guidelines range for this supervised-release-condition violation was 4 to 10 months. Ramos requested 9 months, arguing his initial charge had been reduced to an attempt for “one incident with a 15-year-old step daughter, touching over her clothes.” The Government requested three years (the maximum sentence allowed under 18 U.S.C. § 3583(e)(3)) because Ramos had perpetrated a “crime against nature.”

The District Court judge acknowledged that Ramos had signed a plea agreement in the Commonwealth Court for attempting to commit lewd acts in violation of Article 133 and that Ramos had been sentenced to five years’ imprisonment to be served consecutively to any other sentence. The judge stated just before pronouncing the sentence: “[t]he attempt was against his own 15-year-old daughter whom he registered as his daughter when she was born. He touched and sucked on her left breast and then touched and squeezed her vagina over clothing.” The judge then revoked Ramos’s supervised release and imposed a sentence of three years’ imprisonment to be followed by a three-year term of supervised release.

On appeal, Ramos argued that the upwardly variant sentence was procedurally and substantially unreasonable, based primarily on the judge’s statement and use of graphic allegations of the offense from the Commonwealth Court’s record when those asserted details were not part of the record before Ramos. Because Ramos had failed to object on these grounds in the District Court, the First Circuit reviewed for plain error, which required Ramos to show “(1) that an error occurred (2) which was clear or obvious and which not only (3) affected the defendant’s substantial rights, but also (4) seriously impaired the fairness, integrity, or public reputation of judicial proceedings.” United States v. Soto-Soto, 855 F.3d 445 (1st Cir. 2017).

The Court observed “a district court has broad discretion at sentencing to consider information pertaining to the defendant and the defendant’s offense conduct.” United States v. Millan-Isaac, 749 F.3d 57 (1st Cir. 2014). But “it is axiomatic ‘that a convicted defendant has the right to be sentenced on the basis of accurate and reliable information, and that implicit in this right is the opportunity to rebut the ... evidence and the information’ to be considered by the court.” United States v. Rivera-Rodriguez, 489 F.3d 48 (1st Cir. 2007).

“A district court’s use of new information (meaning information not already found in the district court’s record) that is significant (meaning ‘materially relied on’ by the district court in determining a sentence) can be reversible error.” Millan-Isaac. The Court concluded: “Reciting extraneous non-record avowals without identifying the source or providing notice to Ramos that these asserted details would be considered in determining his sentence for the condition at issue was clear error.” See Millan-Isaac.

Determining whether the clear error affected Ramos’ substantial rights required deciding whether the “error was prejudicial in the sense that it must have affected the outcome of the district court proceedings.” United States v. Gilman, 478 F.3d 440 (1st Cir. 2007). The Court concluded that “the inflammatory details about Ramos’ alleged conduct affected the district judge’s sentencing decision because it is clear he did not ignore this provocative, extra-record characterization of the incident when he imposed the 26-month upward variance from the high end of the undisputed guidelines range. That he articulated these specific, vivid allegations immediately before imposing the sentence shows they were clearly at the front of his mind and indicates he was justifying the upward variance at least in part (if not completely) with them.” See Millan-Isaac.

Finally, “the disregard for a defendant’s right to notice of the information on which the district court will base a sentence imposed ‘cannot help but have a denigrating effect on the fairness, integrity, and public reputation of judicial proceedings.’” Millan-Isaac. Thus, the Court concluded that the District Court’s use of the extraneous material when sentencing Ramos was plain error.

Accordingly, the Court vacated the sentence and remanded with directions to the Clerk of the District Court to assign the case to a different judge for resentencing. See: United States v. Ramos-Carreras, 2023 U.S. App. LEXIS 2069 (1st Cir. 2023).

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