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Date: 12-28-2021

Case Style:

United States of America v. Josue Marrero-Pérez

Case Number: 17-1346

Judge: Michael Boudin


United States Court of Appeals For the First Circuit

Plaintiff's Attorney: 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

Defendant's Attorney:

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Boston, MA - Criminal defense lawyer represented defendant with two counts of possessing a firearm while prohibited from doing so because of a prior felony conviction charge.

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
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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
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
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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. § 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 than proof beyond a
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reasonable doubt, see United States v. Watts, 519 U.S. 148, 152
(1997) (per curiam); proof only of an arrest is no proof of guilt.
As for lack of detail, the PSR offers nothing as to the
substance of the juvenile conduct for seven of the ten arrests;
and no facts are provided for ten of the twenty adult convictions
beyond the fact of conviction; whether in most cases more is
required is more doubtful. But other arrests resulted in
proceedings that were nolle prossed or otherwise terminated
without a trial or a guilty plea.
Subtracting allegations in the PSR for which there are
no detailed records or for which no conviction resulted, much
remains that is unhelpful to Marrero, and serious prior crimes and
recidivist behavior are of course proper considerations at
sentencing. 18 U.S.C. § 3553(a)(1)-(2)(C). How unhelpful is a
judgment call largely confided to the sentencing judge, who is in
a good position to make such individualized assessments. See Gall
v. United States, 552 U.S. 38, 51-52 (2007).
Reliance on arrests alone or other dubious inferences to
enhance a criminal sentence might be thought to offend the often
invoked "presumption of innocence," but historically the
presumption has governed only the trial itself. United States v.
Doyle, 348 F.2d 715, 721 (2d Cir. 1965) (Friendly, J.). Thus, at
sentencing judges have long been free to rely on anything useful
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that is established by a preponderance of the evidence, without
regard to ordinary rules of trial evidence.1
The line between the criminal trial itself and almost
everything afterwards is sharp, enshrining the care and protection
afforded to the defendant at the trial. The comparative
informality of everything after the guilty verdict has practical
advantages and is too well settled for debate. The Supreme Court
may on a rare occasion arguably seem to extend the presumption of
innocence beyond its historical core, see, e.g., Nelson v.
Colorado, 137 S. Ct. 1249 (2017), but not yet in any discernable
pattern directly relevant to a sentencing hearing.
Marrero's failure to object to the sentence based on
the judge's possible reliance on arrests not resulting in
conviction does not insulate the district judge's purported error
from review by this court--even under the plain error test--and
this circuit has several times warned over a three-year period
against reliance on arrests as a proxy for criminal culpability or
the likelihood of recidivism. United States v. Rondón-García, 886
F.3d 14, 25-26 (1st Cir. 2018); United States v. Delgado-Sánchez,
849 F.3d 1, 13 (1st Cir. 2017); United States v. Cortés-Medina,
1 See McMillan v. Pennsylvania, 477 U.S. 79, 91 (1986); Taylor
v. Kentucky, 436 U.S. 478, 483 n.12 (1978); United States v.
Gonzalez-Vazquez, 34 F.3d 19, 25 (1st Cir. 1994); see also In re
Whitney, 421 F.2d 337, 338 (1st Cir. 1970) (presumption of
innocence does not apply to probation revocation).
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819 F.3d 566, 570 (1st Cir. 2016). In sum, to equate arrest with
guilt is by now both error and obviously so.
Material about past offenses may be furnished wholesale
to the probation officer by the government's lawyer and probably
as often adopted by the probation officer without much scrutiny--
counting on defense counsel to object if warranted. So far as
appears, no such objection was advanced here, so the judge ended
up with a package of allegations, correctly believing that defense
counsel never disputed the underlying facts or the negative
inferences one might draw from them. The crimes proved by adult
convictions, without more, may well have justified an upward
variance. U.S.S.G. § 4A1.3(a)(1). This is a classic issue for the
district judge and would be tested, even if the objection had been
made and preserved, only for abuse of discretion. See United
States v. Vázquez-Martínez, 812 F.3d 18, 26 (1st Cir. 2016).
Given the lack of objection, the ordinary test is for
plain error, United States v. Sosa-González, 900 F.3d 1, 4 (1st
Cir. 2018), which requires that a defendant show that (1) an error
occurred, (2) the error was obvious, (3) the error affected
substantial rights, and (4) the error seriously impaired the
fairness, integrity, or public reputation of judicial proceedings,
see Constant v. United States, 814 F.3d 570, 580 (1st Cir. 2016).
Other statements by this court stress particular aspects of the
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test pertinent to the case at hand, but the stress is almost always
on one or more of the factors set forth in Constant.2
Applying the Constant formulation, we think that an
error occurs when a district judge relies on an arrest report,
without some greater indicia of reliability that the conduct
underlying the arrest took place; the "obviousness" of the error
is a matter of degree but becomes greater with every new case;
whether the error affects the outcome depends on the facts peculiar
to the case (e.g., the presence or absence of corroborating
evidence in the record concerning the conduct underlying the
arrests without convictions); and the fourth factor--the
"miscarriage of justice" standard, Alicea, 205 F.3d at 484--is
implicated if the sentence has truly been altered by the arrests,
itself a matter that the district judge can readily lay to rest on
While the record permitted a variance upward on the basis
of convictions, we think that Marrero has made a strong enough
case that the sentencing judge relied on these past arrests in
2 See Rondón-García, 886 F.3d at 24 (noting that for an error
to have affected a defendant's substantial rights, a defendant
must show that there is a "reasonable probability that, but for
the error, the district court would have imposed a more favorable
sentence" (internal quotation marks omitted)); United States v.
Saxena, 229 F.3d 1, 5 (1st Cir. 2000) (describing the final prong
of the plain error test as a "miscarriage-of-justice standard"
(citing United States v. Alicea, 205 F.3d 480, 484 (1st Cir.
- 9 -
determining the sentence. Here, the specific conduct underlying
the dismissed charges was not, as sometimes happens, set forth in
undisputed portions the PSR. See Mercer v. United States, 834
F.3d 39, 50 (1st Cir. 2016). Finally, the sentencing judge stated
on the record that "Mr. Marrero's vast prior record" and the fact
that he "has been arrested at least 44 times during his life,"
along with other factors, were "consistent with [his] utter
disregard for the law and high[] likelihood of recidivism."
It is enough to warrant a remand that the reliance on
such arrests--now an obvious error--"set the wrong framework for
the sentencing proceedings," Molina-Martinez v. United States, 136
S. Ct. 1338, 1345 (2016). Marrero is not in turn required to show
that this obvious error in fact influenced the length of the
sentence, a showing that in most cases will be nearly impossible
for a defendant to make given the kitchen-sink approach to
sentencing pronouncements adopted by many judges. Cf. id. at 1347.
While the lack of objections throughout usually would
defeat a defendant's effort to seek a remand, this course would
merely defer the matter to a likely habeas proceeding directed at
trial counsel's competence. A predictable habeas petition would
prolong and further complicate proceedings and ultimately cost
time and trouble for judge and counsel alike, and the defendant
would already be serving his sentence when, a year or two later,
he would discover its duration.
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Our concerns are reinforced not by the lack of detail
regarding the facts underlying the convictions--that is common,
see, e.g., United States v. Turbides-Leonardo, 468 F.3d 34, 37
(1st Cir. 2006), and only occasionally troublesome--but by the
second argument raised by Marrero, that is, the still not fully
explained material submitted ex parte by the probation officer to
the court concerning certain outstanding warrants in Delaware.
The record is not clear on this point, but it appears that defense
counsel did not object at the sentencing hearing. Rather, at the
end of miscellany (e.g., which prison the judge might recommend
for Marrero), defense counsel said only that he wanted some
documentation that the probation officer had employed (it appears
that defense counsel had declined earlier to review it). He did
ask for his own copy at the end of the hearing and this the court
A remanding appeals court has authority to shape a remand
as circumstances warrant, see United States v. Correy, 570 F.3d
373, 378 (1st Cir. 2009). Whether or not the conduct underlying
the prior arrests can be shown by a preponderance of the evidence
--and whether that matters to the district judge--is for him to
say on remand, but either way public confidence will be served by
an explicit answer. The defendant can also pursue the issue of
the basis and impact of the ex parte material; but here the
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district judge is free to take into account the lack of timely
Ex parte communication between the probation officer and
the court is usually permissible where the court is merely seeking
advice or analysis, United States v. Bramley, 847 F.3d 1, 7 (1st
Cir. 2017); to some extent the probation office is an extension of
the district court, see United States v. Saxena, 229 F.3d 1, 5 n.1
(1st Cir. 2000), and the probation officer and the court may
consult privately about certain issues incident to criminal
sentencing, see United States v. Fraza, 106 F.3d 1050, 1056 (1st
Cir. 1997). But where the probation officer discloses new facts
that bear on the judge's sentencing calculus, cf. United States v.
Craven, 239 F.3d 91, 102 (1st Cir. 2001), the general rule requires
disclosure to the defense in advance of the sentencing hearing and
an opportunity to subject the new material "to whatever adversarial
testing may be appropriate," Bramley, 847 F.3d at 7.
The ex parte material in this case, the outstanding
warrants in Delaware, are pretty thin as against defendant's own
criminal record but might suggest a proclivity for lawlessness or
at best a disrespect for the court system. If the information
about the warrants was not included elsewhere in the record or
made known to Marrero prior to sentencing, reliance on this
information at sentencing would also have been error. See United
States v. Millán-Isaac, 749 F.3d 57, 70 (1st Cir. 2014).
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Marrero's counsel may well have received adequate
advanced notice of the ex parte material and simply declined to
review it, as was true with other material; Marrero says only that
it is a "fair inference" from the sentencing transcript that the
material was provided ex parte. Whatever happened, the facts and
the consequences are for the district court's consideration on

Outcome: The sentence is vacated and the matter remanded for
resentencing in accordance with this decision.

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