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United States v. Marrero-Perez

United States Court of Appeals, First Circuit

January 25, 2019

UNITED STATES OF AMERICA, Appellee,
v.
JOSUE MARRERO-PEREZ, Defendant, Appellant.

          APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF PUERTO RICO [HON. FRANCISCO A. BESOSA, U.S. DISTRICT JUDGE]

          Rick Nemcik-Cruz on brief for appellant.

          Rosa 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.

          Before Torruella, Boudin, and Barron, Circuit Judges.

          BOUDIN, CIRCUIT JUDGE.

         Police 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).

         Without 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.

         The PSR 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.

         At 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.

         The 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 conceded.

         In 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.

         Marrero's 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.

         We 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. ยง 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 ...


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