First Circuit: Procedurally Unreasonable for District Court to Base Upward Variance on Defendant’s Prior Arrests
by Douglas Ankney
The U.S. Court of Appeals for the First Circuit vacated, on the basis of procedural reasonableness, the U.S. District Court for the District of Puerto Rico’s sentence imposed upon Jean C. Torres-Melendez because the District Court’s upward variance from the calculated advisory Guidelines range was based on Torres’s prior arrests.
Torres pleaded guilty to illegally possessing a machine gun in violation of 18 U.S.C. § 922(o)(1). His advisory sentencing Guidelines range was calculated at 24 to 30 months.
At sentencing, the judge called attention to Torres’ “juvenile adjudications” for domestic violence and aggravated burglary and his two adult arrests on weapons and narcotic charges before stating “[t]he record reflects” his “violent tendencies.” Torres’ attorney promptly objected, and the judge agreed that she “should have better characterized that” but then did nothing to clarify the violent-tendencies remark.
The judge then departed upward from the sentencing Guidelines and imposed a sentence of 60 months. The judge stated, in pertinent part, that she adjusted the advisory term because Torres “has a track record of engaging in drug offenses and weapon violations, and his prior arrest record dismissed at state level on speedy trial grounds….”
Torres appealed, arguing that the upward variance was exactly two times the upper limit of his advisory sentencing Guidelines range and the judge had arrived at that sentence by wrongly considering arrests that did not resulted in convictions.
The Court first observed that what little was known about the two arrests at issue came from the Presentence Investigation Report (“PSI”). The PSI called the “circumstances” surrounding a 2010 arrest on local weapons charges “unknown” because “the files were destroyed” after the Commonwealth Court dismissed the matter on speedy-trial grounds. And the PSI said the “charging documents” for a 2014 arrest on local drug charges alleged Torres “illegally, maliciously, voluntarily and with criminal intent, possessed heroin and cocaine.” That case was also dismissed by the Commonwealth Court for lack of a speedy trial.
The Court opined: “We do not doubt that the judge considered Torres’s (supposed) ‘track record of engaging in’ drug and weapon offenses integral to her overall sentencing rationale. We also do not doubt that the judge’s track-record rationale shows she treated proof of arrest as proof of guilt-without highlighting any corroborating evidence that the underlying conduct actually occurred. And therein lies the flaw.”
“When an arrest has not ripened into a conviction,” the sentencing judge cannot “rely on that arrest in a manner that equates the arrest with guilt.” United States v. Diaz-Lugo, 963 F.3d 145 (1st Cir. 2020). “[P]roof only of an arrest is no proof of guilt.” United States v. Marrero-Perez, 914 F.3d 20 (1st Cir. 2019). “A sentencer cannot ‘rely on an arrest record as evidence of a defendant’s conduct’ absent ‘some reliable indication that the underlying conduct actually occurred.’” Diaz-Lugo.
Further, if the judge thought that dismissal on a “speedy trial technicality” somehow gave credibility to the arrest allegations, she is mistaken, the Court admonished. And it explained that a judge “imposing incarceration for a later crime cannot simply presume that past charges resolved without conviction … are attributable to flawed or lax prosecutorial or judicial systems rather than the defendant’s innocence.” United States v. Rondon-Garcia, 886 F.3d 14 (1st Cir. 2018).
Thus, the Court concluded: “The bottom line is that because the judge gave ‘weight’ to arrests not backed by ‘convictions or independent proof of conduct,’ Torres’s sentence cannot stand.” See Marrero-Perez.
Accordingly, the Court vacated Torres’ sentence and remanded for resentencing. See: United States v. Torres-Melendez, 28 F.4th 339 (1st Cir. 2022).
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Related legal case
United States v. Torres-Melendez
| Year | 2022 |
|---|---|
| Cite | 28 F.4th 339 (1st Cir. 2022) |
| Level | Court of Appeals |
| Conclusion | Bench Verdict |
| Appeals Court Edition | F.4th |
