by Anthony W. Accurso

The U.S. Court of Appeals for the First Circuit remanded a defendant’s case for resentencing after ruling that the U.S. District Court for the District of Puerto Rico relied on impermissible hearsay evidence, which served as a factor at sentencing for his revocation and new charge.

In December 2014, Reynaldo Rosa-Borges (“Rosa”) was alleged to have engaged in a drug transaction and, after being searched by police, was found to be in possession of a firearm. He pleaded guilty to one count of carrying a firearm in furtherance of a drug trafficking crime in violation of 18 U.S.C. § 924(c) and received a sentence of five years in prison followed by five years of supervision.

While on supervision on March 29, 2021, Rosa was on a beach in Yabucoa, Puerto Rico, when police found him sitting in the rear of an SUV with another man. A subsequent search of the vehicle located a “7.62 caliber Norinco Ak-47 type rifle-style pistol” and “30 rounds of ammo” for the rifle.

Following discovery of the firearm, police searched the home of Rosa’s aunt, where he claimed residence. In a room not occupied by Rosa, police discovered an additional cache of 7.62 caliber rounds, containing 100 bullets.

Rosa’s brother Naim was at the property when officers sought to search it, and Naim claimed to have retrieved a green bucket from the property at Rosa’s behest the night before. When he searched the bucket upon arrival at his own home, he claimed to have located a firearm, 100 rounds of ammo, and marijuana in pouches and an open bag.

He placed the firearm and pouches of marijuana in his safe yet sought to return the open bag and ammo to Rosa’s residence “since I don’t have anything to do with this.” Naim claimed to have surrendered the additional 100 rounds to police on March 30 during the search of the home, and he also allowed officers to retrieve the items from the safe in his house. Rosa was charged with unlawful possession of a firearm under § 922(g) and for violating the terms of his supervision.

While he signed a plea deal accepting responsibility for the firearm and 30 rounds found in the vehicle at Yabucoa, he disclaimed ownership of the rounds found by police the next day. He contended that Naim’s statement contained internal contradictions and also was at odds with the police narrative that the ammo was found in a room at Rosa’s aunt’s house.

At a joint sentencing, Rosa’s Guidelines range was announced as 37-46 months for the new charge. While the Government argued for a Guidelines sentence, the District Court cited Puerto Rico’s rampant firearm problem and stated the “Guidelines do not account for the amount or caliber of ammunition involved in an offense.” It attributed the full 130 rounds to Rosa and, departing above the calculated Guidelines range, sentenced him to 72 months’ imprisonment on the new charge, with a consecutive 36-month term for his revocation. Rosa timely filed an appeal.

On review by the First Circuit, the Court noted that due process requires that defendants have a “right to be sentenced on the basis of accurate and reliable information.” United States v. Ramos-Carreras, 59 F.4th 1 (1st Cir. 2023); see also United States v. Tucker, 404 U.S. 443 (1972). Imposing a sentence “based solely on unreliable evidence” constitutes reversible error, according to the Court. United States v. Castillo-Torres, 8 F.4th 68 (1st Cir. 2021).

The 100 rounds of ammo that the District Court attributed to Rosa was based entirely on Naim’s statement, which the Court observed was made out-of-court and was offered for the truth of the matter asserted, i.e., the rounds belonged to Rosa. But such statements constitute hearsay, the Court stated. See United States v. Ramos-Baez, 86 F.4th 28 (1st Cir. 2023).

“Although sentencing and revocation proceedings are subject to different legal standards regarding evidence, we conclude that the court’s reliance on Naim’s statement was nonetheless erroneous in each proceeding based on the reliability concerns,” the Court stated. Over the Government’s objection, the Court concluded that Naim’s statement was hearsay, which must be supported by other “indicia of trustworthiness.” United States v. Rondon-Garcia, 886 F.3d 14 (1st Cir. 2018).

Instead of being supported by other facts, Naim’s statement contained “inconsistencies” and “contradict[ed] in several respects testimony by the government.” For instance, Naim claimed his motivation for being on site during the search was to return items he desired to distance himself from, yet he still retained some marijuana and a firearm in his safe. His statement also called into question where the additional 100 rounds were found (Rosa’s residence or Naim’s vehicle), which cast further doubt on the attribution of the rounds to Rosa.

The Court wrote that “Naim’s sworn statement was self-serving and confusing.” And the only remaining fact that linked Rosa to the extra 100 rounds of ammo was the caliber of the rounds, which is a tenuous link to prove ownership, according to the Court. Thus, the Court held Naim’s hearsay statement was insufficiently reliable as a matter of law to be used at sentencing for a new charge or a revocation, especially to support an above-the-Guidelines variance.

Accordingly, the Court vacated Rosa’s new-conduct and revocation sentences and remanded the case for resentencing consistent with its opinion. See: United States v. Rosa-Borges, 101 F.4th 66 (1st Cir. 2024).   

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