FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF
PUERTO RICO HON. CARMEN CONSUELO CEREZO, U.S. DISTRICT JUDGE.
Raymond L. Sanchez Maceira on brief for appellant.
Emilia Rodríguez-Vélez, United States Attorney,
Mariana E. Bauzá-Almonte, Assistant United States
Attorney, Chief, Appellate Division, and Mainon A. Schwartz,
Assistant United States Attorney, U.S. Attorney's Office,
on brief for appellee.
Lynch, Thompson, and Barron, Circuit Judges.
THOMPSON, Circuit Judge.
we turn to the final chapter of Jorge Berrios-Miranda's
("Berrios") sentencing challenge, in which he
contends that the district court violated his procedural due
process rights when it denied his request to challenge the
reliability of his victim's testimony by cross-examining
the victim at Berrios's resentencing hearing. Spying no
error in the district court's handling of the matter, we
provide the following pertinent details to flesh out the
backdrop for this appeal.
was one of several men who kidnapped and held hostage Luis F.
Bello-Javier ("the victim") in August 2008. Over
the course of the several days they held the victim against
his will, the kidnappers regularly beat him and deprived him
of food. After the FBI got involved, though, the kidnappers
released the victim and were apprehended. Pursuant to a plea
agreement, Berrios pleaded guilty to kidnapping for ransom in
violation of 18 U.S.C. §§ 1201(a)(1) and (2).
Berrios's codefendants proceeded to a trial, during which
Berrios's conduct during the kidnapping was described not
only by the victim, but also by Berrios himself. The victim
detailed how Berrios inflicted serious physical and
psychological injuries on him during the abduction and
"mistreated [him] the most." For his part, Berrios
testified that he beat and threatened to kill the victim, and
also placed his gun against the victim's head to
intimidate him. Berrios also laid out how "constantly
with the crowbar of the car [he] continued to torture"
the victim, explaining that, "[t]he majority of the
time, the one who was with [the victim] was me, Jorge
brings us to Berrios's sentencing proceedings (which
postdate the codefendant's trial), in advance of which
Berrios filed a motion requesting a copy of the
as-yet-unseen-by-Berrios transcripts of testimony from his
codefendant's trial. The district-court judge denied the
motion, but relied upon the victim's and Berrios's
trial testimony in rejecting the parties' recommended
sentence, instead imposing a harsher sentence due to the fact
that Berrios, according to the victim, had "mistreated
[him] the most."
led to Berrios's first sentencing challenge before this
court, and we agreed with his position: "the record that
was available to [Berrios] did not otherwise contain the
information used by the district court in imposing the
sentence," and the fact that the victim testified that
Berrios mistreated him more than anyone else was "both
new and significant under our case law," so we held that
the reliance below on the victim's testimony could not
"be deemed harmless." See United States
v. Berrios-Miranda, No. 13-1808 (1st Cir.
June 19, 2015) (judgment).
district court for the resentencing hearing, things
didn't play out to Berrios's liking. After the
district-court judge granted Berrios access to the
transcripts "relevant to the mistreatment of the victim
by [Berrios]" (the testimony given by the victim and by
Berrios), Berrios moved to compel the government to produce
the victim "to be cross examined by [him] during
[re]sentencing, to contest [the victim]'s statement that
Berrios was: 'the one who mistreated [the victim] the
most.'" To hear Berrios tell it, the victim's
statement, which was not previously subject to
cross-examination at trial at all by Berrios, was
"questionable." The district-court judge ordered
Berrios to "explain how further questioning of the
victim" would "challenge as inaccurate and
unreliable" the testimony that Berrios's own
statements had "essentially corroborated." Berrios
wanted to challenge the reliability of the victim's
statement that he was the worst of the tormenters: the victim
had been blindfolded during much of the abduction and
therefore could not always reliably identify his aggressors,
plus certain details provided at trial had not come up during
the victim's 2009 PSR interview. He also hoped to elicit
testimony that Berrios saved the victim's life. The judge
denied the motion because cross-examination "would be a
bald attempt to mount an attack to [the victim's]
credibility" that "would only serve to further
victimize him," and, in any event, Berrios was not
entitled to cross-examine the victim -- he had all the
relevant information he needed and "had a fair
opportunity to comment on it or otherwise challenge"
the district-court judge sentenced Berrios to a
within-guidelines term of 136 months -- eight months less
than the previous sentence. In so doing, the judge stated she
had "carefully evaluated" Berrios's
"conduct while the kidnapping victim was in his custody,
as it was described at trial, not only by him but by the
victim himself." As part of that, the judge found that
Berrios was the one who "principally" held the
victim and, based on the record, Berrios was responsible for
"mistreat[ing] [the victim] the most." The judge
also took into account Berrios's corroborative testimony:
"I told him that if he screamed, that I was going ...