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United States v. Roman-Huertas

United States Court of Appeals, First Circuit

February 8, 2017

JULIO ROMÁN-HUERTAS, Defendant, Appellee.


          Eleonora C. Marranzini, Research and Writing Specialist, Eric Alexander Vos, Federal Public Defender, and Vivianne M. Marrero-Torres, Assistant Federal Public Defender, Supervisor, Appeals Section, on brief for appellant.

          Francisco A. Besosa-Martínez, Assistant United States Attorney, Rosa Emilia Rodríguez-Vélez, United States Attorney, and Mariana E. Bauzá-Almonte, Assistant United States Attorney, Chief, Appellate Division, on brief for appellee.

          Before Torruella, Lynch, and Thompson, Circuit Judges.

          TORRUELLA, Circuit Judge

          Julio Román-Huertas ("Román") pled guilty to being a felon in possession of a firearm in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2). His plea agreement recommended a total offense level under the United States Sentencing Guidelines (the "Guidelines") of seventeen. At his sentencing hearing, Román objected to the total offense level of seventeen, arguing that it should instead be twelve because his prior felony was not "a controlled substance offense" under the Guidelines. Relying on an untranslated Spanish document, the district court ruled that his total offense level was seventeen. The Guidelines' recommended sentence was twenty-seven to thirty-three months' imprisonment, but the district court sentenced Román to forty-six months' imprisonment. Because the district court improperly relied on an untranslated document, we vacate Román's sentence and remand for resentencing.

         I. BACKGROUND

         On March 8, 2014, while Román and another man were driving in San Juan, Puerto Rico, Román fired one shot from his pistol into the air. Agents from the Puerto Rico police department were in the area, and they arrested Román and seized Román's pistol and an additional magazine. Román was charged with being a felon in possession of a firearm.

         On April 16, 2014, Román entered into a plea agreement, which included "advisory Guideline calculations" of a base offense level of twenty and a three-level credit for acceptance of responsibility, for a total offense level of seventeen. This calculation assumed that Román's prior conviction had been a "controlled substance offense" under U.S.S.G. § 2K2.1(a)(4)(A). Although the parties did not stipulate to a Criminal History Category ("CHC"), the plea agreement's advisory Guideline calculations indicated that Román's recommended sentence would be twenty-seven to thirty-three months if he had a CHC of II. "The parties agree[d] to recommend the lower end of the applicable guideline range."

         On August 12, 2014, the probation officer filed a presentence investigation report (the "PSR"). The PSR calculated a total offense level of seventeen and a CHC of II, resulting in a recommended sentence of twenty-seven to thirty-three months. Román's sentencing memorandum, filed on September 5, 2014, stated that his "offense level [was] expected to be level 17." On August 27, 2015, the probation officer filed an addendum to the PSR, which stated that Román "ha[d] not filed any written objections."

         On September 2, 2015, more than a year after the PSR was filed, Román filed objections to it. Román argued that the PSR improperly calculated his total offense level as seventeen, because Román's prior conviction under Article 406 of the Puerto Rico Controlled Substances Act, P.R. Laws tit. 24, § 2406, "is not a 'controlled substance offense' in regards to the Guideline Section 2K2.1." Specifically, Román asserted that "not all offense[s] under [Article 406] meet [U.S.S.G. § 4B1.2(b)'s] definition" of a controlled substance offense.[1] Thus, Román contended that his total offense level should be twelve, [2] not seventeen as the PSR and his plea agreement recommended.

         The district court held a sentencing hearing the next day, and Román affirmed that he "reinstate[d] this objection" to the total offense level of seventeen. The Government responded that under "a modified categorical approach" the district court could "examine if there are existing documents that allow us to determine whether [Román's] particular violation of [Article] 406" was a controlled substance offense. The district court then stated that it had "the document here which has the legal basis."[3]

          According to the district court, that document "indicate[d] . . . that the charges were for violation of . . . [A]rticle 401 that entails distribution of a controlled substance" but were "reduced to a violation of [A]rticle 406." The district court further explained that "the description" in "this criminal complaint . . . entails and encompasses the possession with intent to distribute a controlled substance." The district court then stated that "the offense charged meets the definition of . . . a controlled substance offense." When Román asserted "that the document[s] that the Court can examine are limited, " the district court replied that it had "exercise[d its] due diligence in terms of checking that we had the proper documents."

         The document the district court relied on was never entered into the record, and so it is not available to us on appeal. The parties agree, and it is clear from the ...

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