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United States v. Acevedo-Lopez

United States Court of Appeals, First Circuit

October 11, 2017

LUTGARDO ACEVEDO-LOPEZ, Defendant, Appellant.


          Martin G. Weinberg, with whom Kimberly Homan, were on brief, for appellant.

          Juan Carlos Reyes-Ramos, Assistant United States Attorney, with whom Rosa Emilia Rodríguez-Vélez, United States Attorney, and Mariana E. Bauzá-Almonte, Assistant United States Attorney, Chief, Appellate Division, were on brief, for appellee.

          Before Torruella, Lipez, and Barron, Circuit Judges.

          TORRUELLA, Circuit Judge.

         Defendant-Appellant Lutgardo Acevedo-López ("Acevedo") pled guilty to violating 18 U.S.C. §§ 371 and 666(a) by conspiring to bribe and paying a bribe to a judge on the Puerto Rico Court of First Instance. Acevedo appeals his sentence of nine years' imprisonment. We affirm.

         I. BACKGROUND

         A. Factual Background

         Prosecutors in the Aguadilla judicial region of Puerto Rico charged Acevedo with aggravated negligent homicide, obstruction of justice, and driving under the influence of alcoholic beverages after he killed another driver in a car accident on June 30, 2012. In November 2012, Ángel Román-Badillo ("Lito") -- a long-time acquaintance of Acevedo -- met with Manuel Acevedo-Hernández (the "Judge"), a Puerto Rico Superior Court Judge in the Aguadilla judicial region, and the Judge's brother, Saúl Acevedo-Hernández ("Saúl"), and nephew, Miguel Acevedo-Manjo ("Miguel") at a restaurant.[1] They discussed Acevedo's case, and Lito told the Judge that Acevedo's case would be assigned to him. The Judge told Lito that, if he was assigned the case, he would let Lito know.

         In subsequent meetings, the Judge informed Lito that the case had been officially assigned to him. The Judge commented that Acevedo's criminal case was so delicate that it "could not be worked on, not even for $100, 000, " but the Judge also stated that he wanted a seat on the state appellate court and government jobs for Saúl and Miguel.

         The Judge eventually agreed to provide Acevedo with favorable treatment. From November 2012 to April 2013, Lito would invite the Judge, Saúl, Miguel, and other friends to bars and restaurants, and Acevedo would pay for everything. Through Lito, Acevedo also: (1) paid the Judge's pending state income tax debt; (2) bought the Judge gifts; (3) arranged for construction improvements on the Judge's garage; and (4) purchased a used motorcycle for the Judge.

         Acevedo also worked to procure a seat on the state appellate court for the Judge. In December 2012, Acevedo arranged a meeting at a golf tournament between the Judge and Anaudi Hernández ("Hernández"), a businessman with connections to the then-Governor-elect who had previously helped another judge get reappointed. On December 30, 2012, Lito drove the Judge to the golf tournament. At the tournament, Lutgardo Acevedo-López II ("Bebé"), Acevedo's brother, told Hernández that he wanted to introduce Hernández to a friend who aspired to be an appellate judge. The Judge became nervous because he was presiding over Acevedo's case, however, and he did not meet Hernández at the tournament. A few weeks later, however, on January 21, 2013, Lito drove the Judge to Hernández's residence to discuss the Judge's potential appointment to the appellate court. During the meeting, the Judge told Acevedo that his dream was to retire as an appellate judge.

         In return for these inducements, the Judge provided help with Acevedo's case. Between January and March 2013, Acevedo provided the Judge with draft court filings for his review and advice prior to filing. Further, on March 22, 2013, the Judge met with Lito to discuss Acevedo's case and provide strategic legal advice. On March 27, 2013, the Judge acquitted Acevedo of all charges.

         On April 5, 2013, Lito drove the Judge to a seminar. Later that day, Puerto Rico police officers stopped Lito, still with the Judge, for suspected driving while under the influence of alcohol. The Judge intervened on Lito's behalf, but some of the officers had been involved in the case against Acevedo, and they identified Lito as Acevedo's associate and raised concerns about the Judge's association with Lito. This eventually led to a federal investigation.

         B. Procedural History

         On June 3, 2014, federal officers arrested Acevedo in the Southern District of Florida. On June 6, 2014, a magistrate judge in the Southern District of Florida ordered that Acevedo be detained and removed to the District of Puerto Rico. On July 14, 2014, the district court for the district of Puerto Rico conducted a de novo detention hearing and reinstated the Florida magistrate's detention order.

         On August 14, 2014, Acevedo entered into a plea agreement. The parties stipulated to a total offense level of twenty-three, but Acevedo's presentence investigation report (the "PSR") initially recommended a total offense level of twenty-nine. Acevedo filed several objections to the PSR. In response to those objections, the probation officer issued an addendum to the PSR on November 3, 2015. The addendum included a revised calculation of the benefits received by the Judge under U.S.S.G. § 2C1.1(b)(2), which reduced the recommended total offense level from twenty-nine to twenty-seven.

         The district court held a sentencing hearing on November 6, 2015. Among other things, the district court found that the annual salary increase that the Judge would have received if he had been appointed as an appellate judge, totaling $123, 200 over eight years, was to be included in calculating the value of the bribe under U.S.S.G. § 2C1.1(b)(2). The district court also found that the conspiracy involved at least five criminally-responsible participants and was also otherwise-extensive under U.S.S.G. § 3B1.1(a). Altogether, the district court calculated a total offense level of twenty-seven and a recommended sentencing range of seventy to eighty-seven months of imprisonment. After reviewing the 18 U.S.C. § 3553(a) factors, however, the district court determined that "the circumstances surrounding this offense fall completely out of the heartland of the Sentencing Guidelines, " and so "a variance [was] warranted." Considering "the seriousness of the offense and all of the factors, " the district court therefore sentenced Acevedo to 108 months of imprisonment, one year less than the statutory maximum.

         Acevedo appealed his sentence.

         II. ANALYSIS

         Acevedo raises a plethora of purported procedural sentencing errors made by the district court. We address them each in turn.

         We review the district court's legal interpretation and application of the Sentencing Guidelines de novo, its findings of fact -- including calculations of value -- for clear error, and its judgment calls for abuse of discretion. United States v. Houston, 857 F.3d 427, 432 (1st Cir. 2017); see also United States v. Vázquez-Botet, 532 F.3d 37, 65 (1st Cir. 2008).

         A. The District Court Did Not Err in Calculating the Value of the Benefit to the Judge

         Acevedo's first claim of error is that the district court miscalculated the value of "anything obtained or to be obtained" by the Judge under U.S.S.G. § 2C1.1(b)(2). U.S.S.G. § 2C1.1(b)(2)[2] provides:

If the value of the payment, the benefit received or to be received in return for the payment, the value of anything obtained or to be obtained by a public official or others acting with a public official, or the loss to the government from the offense, whichever is greatest, exceeded $5, 000, increase by the number of levels from the table in ...

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