FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF
PUERTO RICO [HON. FRANCISCO A. BESOSA, U.S. DISTRICT JUDGE]
Nemcik-Cruz on brief for appellant.
Emilia Rodríguez-Vélez, United States Attorney,
Mariana E. Bauzá-Almonte, Assistant United States
Attorney, Chief, Appellate Division, and Julia M. Meconiates,
Assistant United States Attorney, on brief for appellee.
Torruella, Boudin, and Barron, Circuit Judges.
BOUDIN, CIRCUIT JUDGE.
officers in Puerto Rico received a tip as to the whereabouts
of Josue Marrero-Pérez ("Marrero"), who had
left Delaware to evade arrest on an outstanding warrant.
Locating him at his premises in Puerto Rico, they discovered
in plain view in the building a Glock pistol and a Smith
& Wesson semiautomatic pistol, each loaded with
ammunition. They arrested him and a grand jury indicted him
on two counts of possessing a firearm while prohibited from
doing so because of a prior felony conviction, 18 U.S.C.
§ 922(g)(1), and because of his fugitive status,
id. § 922(g)(2).
a plea bargain, Marrero pled guilty to both charges. The
final presentence investigation report ("PSR")
recommended that the guidelines range be fixed at 37-46
months in prison, based on a recommended total offense level
of 17 and a recommended criminal history category of IV. The
probation officer's report set out an ominous criminal
record, some of whose detail and characterizations Marrero
disputes in this appeal. According to the report, as a
juvenile Marrero behaved violently and was arrested
regularly, and as an adult he had been convicted twenty times
including for assault, drug violations, resisting arrests and
possessing a firearm with an obliterated serial number.
advised that Marrero's category IV designation
substantially understated his criminal history and likelihood
of further crimes, suggesting as options an upward departure
or a variant sentence. The PSR had been available to Marrero
and his lawyer but no objection was made to the report, and
at sentencing defense counsel stated that he had reviewed the
PSR prior to that hearing. He did not object to the report at
any time before the sentence.
sentencing, after hearing Marrero's allocution and his
lawyer's request for a sentence at the lower end of the
proposed range, the court said that Marrero's record
called for an upward departure. See U.S.S.G. §
4A1.3(a)(1). As the judge concluded at sentencing,
Mr. Marrero's vast prior record, as reflected in the
pre-sentence investigation report and history of convictions,
indicates that his Criminal History Category substantially
underrepresents the seriousness of his offense or the
likelihood that he will commit other crimes. . . . Mr.
Marrero has been arrested at least 44 times during his life .
. . . As an adult, Mr. Marrero has more than 20 convictions .
. . . According to documentation received from the probation
officer, in the District of Delaware, Mr. Marrero has the
following known history of warrants: 25 failure to appear, 13
violations of probation, and 28 failures to pay, all of which
is consistent with Mr. Marrero's utter disregard for the
law and high likelihood of recidivism.
district court imposed a variant sentence of 72 months,
itself in excess of the 60-month upward variance proposed by
the government. The most difficult issue on this appeal
concerns the possibility that the judge at sentencing relied
in his upward variance on prior arrests of the defendant
which did not result in convictions; Marrero also objects to
a lack of detail in other cases where the conviction is
addition to the PSR, documents concerning outstanding
warrants in Delaware were apparently provided by the
probation officer to the court; this information was not
included in the PSR but was referred to by the court at
sentencing. Marrero now suggests that it is a "fair
inference" from the sentencing transcript that these
documents were provided to the court ex parte and
should have been tested at a hearing.
strongest arguments are that the sentencing judge (1) relied
on past arrests listed in the PSR (usually involving at worst
trivial conduct), many of which did not result in prosecution
or conviction, and (2) relied on ex parte documents
which were not timely disclosed to the defense.
agree that as a matter of judicial policy, in this case and
henceforth, no weight should be given in sentencing to
arrests not buttressed by convictions or independent proof of
conduct. See U.S.S.G. § 4A1.3(a)(3). In certain
perhaps rare cases, a reasonable person might in particular
circumstances assign some weight to a collection of arrests,
but no such argument is made or available here. To rely on
acquitted conduct in sentencing was troublesome enough even
where the government needed to provide only preponderant
proof rather ...