FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF
PUERTO RICO [Hon. Aida M. Delgado-Colón, U.S. District
G. Weinberg, with whom Kimberly Homan, were on brief, for
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.
Torruella, Lipez, and Barron, Circuit Judges.
TORRUELLA, Circuit Judge.
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.
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. 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.
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
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.
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.
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.
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.
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.
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
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.
appealed his sentence.
raises a plethora of purported procedural sentencing errors
made by the district court. We address them each in turn.
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.
The District Court Did Not Err in Calculating the Value of
the Benefit to the Judge
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) 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 ...