United States v. Morales-Negron

2020 | Cited 0 times | First Circuit | September 8, 2020

United States Court of Appeals For the First Circuit

Nos. 17-1181, 18-1047





Defendant, Appellant.


[Hon. Aida M. Delgado-Colón, U.S. District Judge]


Howard, Chief Judge, Torruella and Kayatta, Circuit Judges.

Franco L. Pérez Redondo, with whom Eric Alexander Vos, Federal Public Defender, Vivianne M. Marrero, Assistant Federal Public Defender, Supervisor, Appeals Section, and Liza L. Rosado- Rodríguez, Research and Writing Specialist, were on brief, for appellant. Kaitlin E. Paulson, Appellate Section, Criminal Division, U.S. Department of Justice, with whom Mainon A. Schwartz, Assistant United States Attorney, Rosa Emilia Rodríguez-Vélez, United States Attorney, and Mariana E. Bauzá-Almonte, Assistant United States Attorney, Chief, Appellate Division, were on brief, for appellee.

September 8, 2020

HOWARD, Chief Judge. William Noel Morales-Negrón

("Morales") was apprehended in February 2016 by Drug Enforcement

Administration agents and U.S. Marshal Service deputies during a

search for fugitives in Yauco, Puerto Rico. In the course of the

apprehension, Morales fled from the agents, throwing a fanny pack

onto the roof of a nearby residence as he tried to escape by

running across adjacent rooftops.

The agents arrested Morales and seized the fanny pack,

which contained one loaded Glock pistol modified to fire as a

machinegun. Agents also seized four Glock magazines (including

one high-capacity magazine), fifty-seven rounds of ammunition,

various drugs, and 700 dollars. A background check revealed that

Morales had an outstanding arrest warrant for a state probation


A federal grand jury indicted Morales for being a felon

in possession of a firearm and ammunition, 18 U.S.C. § 922(g)(1),

and for unlawfully possessing a machinegun, 18 U.S.C. § 922(o).

He pled guilty to both counts without a plea agreement.

At sentencing, the district court noted that Morales

faced a total offense level of seventeen, a criminal history

category of IV, and a guideline sentencing range ("GSR") of thirty-

seven to forty-six months' imprisonment. The government advocated

for forty-six months, stressing that Morales had been apprehended


with a loaded machinegun "capable of inflicting damage beyond . . .

other types of firearms." Morales requested a thirty-seven-month

sentence, emphasizing his traumatic upbringing and violent

episodes between his parents, his struggles with substance abuse,

his physical and mental health issues, and his need to provide for

his children.

The court determined that an above-guidelines sentence

was warranted for "plenty of reasons": Morales had "[t]wice [been]

given very lenient sentences" for previous offenses and twice had

his supervised release revoked; Morales had abandoned his last

court-ordered treatment program and was a fugitive at the time of

his arrest; Morales's crime had facilitated the use of dangerous

weapons "in the streets by members of a drug organization"; and,

in light of Puerto Rico's rising homicide rate, his conduct was

particularly grave.

The court also emphasized that the evidence contradicted

Morales's claims that, by the time of his arrest, he had

rehabilitated himself and ceased engaging in illegal conduct or

associating with individuals in the drug or weapons business. The

court ultimately sentenced Morales to seventy months in prison.

Six months later, Morales filed a motion in the district

court to access the written Statement of Reasons ("SOR") in order

to prepare his appeal. Eventually, the district court denied the

request, explaining that "[f]or sentencing and appeal purposes the


grounds upon which a sentence is based are specifically outlined

on the record and not reflected within the SOR." The court added

that any "technical discrepancies within the SOR or even the

judgment entered are corrected based on the record of in court

proceedings which controls and specifies the criteria for and the

sentence imposed."

Morales appeals his sentence on procedural and

substantive grounds and challenges the district court's denial of

his motion to access the SOR.

First, Morales argues that the district court "committed

procedural error by unduly relying on conjecture to impose an

upward variant sentence." Specifically, Morales challenges the

district court's factual findings concerning Morales's connection

to a video, which Morales says the court relied on in rejecting

his claim that he had rehabilitated himself already.

Selecting a sentence "based on clearly erroneous facts"

constitutes a significant procedural error. See United States v.

Millán-Isaac, 749 F.3d 57 , 66 (1st Cir. 2014). Morales and the

government dispute whether Morales properly preserved this

procedural objection, but Morales's claim fails even under the

clear-error standard of review applicable to preserved claims.

See United States v. Molloy, 324 F.3d 35 , 39 (1st Cir. 2003).

The video at issue, obtained from Morales's cell phone,

depicts two men sleeping on a rooftop and a rifle resting against


a nearby wall. An unidentified male is heard off-screen saying in

Spanish, "in spite of the fact of what I had told you last night,

you didn't even safe keep it." The video was taken six months

before Morales's arrest.

The district judge said that the two men sleeping

appeared to be keeping guard with the rifle on the rooftop and

that another photo from Morales's cell phone showed Morales holding

the same rifle on the same rooftop just two months before his

arrest. Morales, the court inferred, plainly had contact with the

people, the premises, and the rifle shown in the video.

Morales contests that there is sufficient evidence to

support this inference. The "inferences [a sentencing court] draws

from th[e] evidence need not be compelled but, rather, need only

be plausible." United States v. Nuñez, 852 F.3d 141 , 146 (1st

Cir. 2017).

Here, based on a visual comparison, the court plausibly

found that the rifle and the rooftop in the photo and video were

the same. And from the presence of the video on Morales's cell

phone, as well as his admissions to law enforcement that he had

delivered weapons to and associated with individuals in the drug

and weapons business, the court also plausibly inferred that

Morales had contact with the men depicted in the video.

Any error would also be harmless, see United States v.

Fernández-Garay, 788 F.3d 1 , 5 (1st Cir. 2015), because other


recent photos of Morales posing with weapons, the weapons and

ammunition seized from Morales after his arrest, and his admissions

to law enforcement gave the court ample reason to reject his

assertions that he had rehabilitated himself already.

Second, Morales contends his sentence is substantively

unreasonable because the district court "did not properly

balance[] the § 3553(a) factors." Review is for abuse of

discretion, United States v. Vargas-García, 794 F.3d 162 , 165 (1st

Cir. 2015), and here there was none.

Morales alleges that the district court mis-weighed

relevant factors, giving too much weight to his prior convictions

and too little weight to his personal circumstances,

rehabilitation efforts, and role in the instant offense. But "a

disagreement with the district court's weighing of the different

sentencing factors" does not alone constitute error. United States

v. Contreras-Delgado, 913 F.3d 232 , 242 (1st Cir. 2019) (quotations

omitted). The "hallmarks of a substantively reasonable sentence

are a plausible sentencing rationale and a defensible result."

United States v. Caballero-Vázquez, 896 F.3d 115 , 122 (1st Cir.

2018) (quotations omitted).

Here, the district court provided several plausible

rationales for the upward variance. These included the substantial

amount of ammunition and multiple-high-capacity magazines involved

in the offense, the lenience shown toward Morales at his prior


sentencings, the need for specific deterrence, given Morales's

repeated flouting of court-imposed conditions, and the prevalence

of gun violence in Puerto Rico.

As the district court noted, we previously have upheld

similarly sized variances on similar facts. See, e.g., United

States v. Vázquez, 854 F.3d 126 , 129-130 (1st Cir. 2017); United

States v. Díaz-Arroyo, 797 F.3d 125 , 129-130 (1st Cir. 2015).

Thus, Morales's sentence is within the "universe of reasonable

sentences." United States v. Alejandro-Rosado, 878 F.3d 435 , 440

(1st Cir. 2017).

Morales also appeals from the district court's order

denying him access to the SOR. Given the adequacy of the court's

oral explanation at sentencing, the court's failure to grant access

to the SOR does not provide grounds to vacate Morales's sentence

or stay the merits portion of this appeal. On the other hand, we

see no basis for withholding the document from Morales here. So

we remand for the limited purpose of having the district court

docket the SOR and grant defense counsel's request for access.

The SOR is an outgrowth of the statutory framework

governing the United States Sentencing Commission. 28 U.S.C.

§ 991. 28 U.S.C. § 994(w)(1)(B) provides that:

The Chief Judge of each district court shall ensure that, within 30 days following entry of judgment in every criminal case, the sentencing court submits to the Commission, in a format approved and required by the Commission, a written report of the


sentence, the offense for which it is imposed, the age, race, sex of the offender, and information regarding factors made relevant by the guidelines. The report shall also include . . . the written statement of reasons for the sentence imposed (which shall include the reason for any departure from the otherwise applicable guideline range and which shall be stated on the written statement of reasons form issued by the Judicial Conference and approved by the United States Sentencing Commission).

The federal sentencing statute incorporates this

requirement, noting that a court imposing a non-Guidelines

sentence must state the reasons for the sentence "with specificity

in a statement of reasons form." 18 U.S.C § 3553(c)(2).

Historically the SOR was publicly available as part of

the judgment; but, in 2001, the Judicial Conference determined

that SORs should no longer be disclosed to the public to protect

the identity of cooperating defendants. See United States Judicial

Conference Report, March 14, 2001, at 17 (available at

https://www.uscourts.gov/sites/default/files/2001-03.pdf); see

also Administrative Office of US Courts, Memorandum re: Policy

Change Restricting Routine Public Disclosure of Statement of

Reasons, at 2 (Aug. 13, 2001). In 2010, Congress decoupled the

SOR from the judgment to facilitate the 2001 change. See Federal

Judiciary Administrative Improvements Act of 2010, Pub. L. No.

111-174, § 4, 124 Stat. 1216. As part of its determination, the

Judicial Conference specified that "the Statement of Reasons[]

will continue to be forwarded to appropriate entities, such as the


United States Sentencing Commission, the Federal Bureau of

Prisons, defense counsel, government attorneys, and the appellate

courts." United States Judicial Conference Report, at 17.

The standing order in the District of Puerto Rico also

presumes that, upon request, defense counsel can obtain access to

the SOR. Standing Order No. 17-205 (April 28, 2017),


neral%20standing%20order_0.pdf. This order provides that, once

finalized, the SOR shall be docketed electronically under seal and

that "[r]equests for access by the United States Attorney or by

trial or appellate counsel shall be granted by order of the Court."

Id. (emphasis added).

An SOR "serves a largely administrative purpose," United

States v. Vazquez-Martinez, 812 F.3d 18 , 25 (1st Cir. 2016), by

helping the Commission gather data on criminal sentences in order

to make recommendations to Congress. Accord, e.g., United States

v. Lee, 897 F.3d 870 , 874–75 (7th Cir. 2018); United States v.

Jackson, 848 F.3d 460 , 464 (D.C. Cir. 2017).

A district court's failure to docket, or even complete,

an SOR "does not require vacation of the sentence absent a showing

of prejudice." United States v. Fields, 858 F.3d 24 , 31 (1st Cir.

2017); see also United States v. Pagán-Walker, 877 F.3d 415 , 417

(1st Cir. 2017). When a defendant receives an adequate in-court

explanation for the sentence, this Court has repeatedly held that


showing cannot be made. See United States v. Pedroza-Orengo, 817

F.3d 829 , 837 (1st Cir. 2016); see also Vazquez-Martinez, 812 F.3d

at 25 .

Here, there is nothing to suggest that the contents of

the SOR--even if they contained some discrepancy or error, as

Morales alleges they might--in any way affected or undercut the

district court's sentencing decision. Indeed, when "the district

court's oral expression of its sentencing rationale varies

materially from its subsequent written expression of that

rationale, appellate courts have tended to honor the former at the

expense of the latter." United States v. Muniz, 49 F.3d 36 , 42

n.5 (1st Cir. 1995). This makes particular sense here because the

SOR, though ultimately sent to the sentencing judge for final

approval, is prepared by the U.S. Probation Office, after

sentencing, based on the judge's prior in-court statements.

Standing Order No. 17-205 (April 28, 2017).

Accordingly, because Morales cannot establish how any

error in the SOR would invalidate his otherwise justifiable

sentence and therefore prejudice his case, Morales cannot show

that the district court's denial was erroneous because the document

was necessary for his appeal.

Morales offers an alternative argument, however: that,

even if the SOR is immaterial to his sentence and his appeal, the

district court cannot simply deny him access to a document


associated with his own criminal case.

Decisions are seemingly rare, if any exist, as to whether

a district court can deny defense counsel access to the SOR. But

the Second Circuit has said that even if the SOR has no bearing on

a defendant's sentencing appeal, denying defense counsel access to

the SOR would nonetheless be "cause for concern." United States

v. Espinoza, 514 F.3d 209 , 212 n.5 (2d Cir. 2008).

In Puerto Rico, the practice is that the SOR be made

available to defense counsel upon request. Standing Order No. 17-

205 (April 28, 2017). Judicial Conference policy also indicates

that the SOR will be available to counsel directly involved in the

case. United States Judicial Conference Report, at 17; see also

In re Sony BMG Music Ent., 564 F.3d 1 , 6 (1st Cir. 2009) (explaining

that Judicial Conference policy, "even if not binding in the

strictest sense, is not lightly to be discounted, disregarded, or

dismissed"). And concealment without a given reason or a reason

that otherwise should be obvious to the defendant invites avoidable

suspicion. We affirm the sentence, but remand for the district

court to docket a sealed copy of the SOR and grant defense

counsel's request for access.

It is so ordered.


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