US v. Cotto-Negron
Filing
OPINION issued by Jeffrey R. Howard, Chief Appellate Judge; Bruce M. Selya, Appellate Judge and Kermit V. Lipez, Appellate Judge. Published. [14-1670]
Case: 14-1670
Document: 00117102311
Page: 1
Date Filed: 01/09/2017
Entry ID: 6060414
United States Court of Appeals
For the First Circuit
No. 14-1670
UNITED STATES OF AMERICA,
Appellee,
v.
ÁNGEL L. COTTO-NEGRÓN, a/k/a Quija,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. José A. Fusté, U.S. District Judge]
Before
Howard, Chief Judge,
Selya and Lipez, Circuit Judges.
Tina Schneider on brief for appellant.
Rosa Emilia Rodríguez-Vélez, United States Attorney, Nelson
Pérez-Sosa, Assistant United States Attorney, Chief, Appellate
Division, and Juan Carlos Reyes-Ramos, Assistant United States
Attorney, on brief for appellee.
January 9, 2017
Case: 14-1670
Document: 00117102311
Page: 2
LIPEZ, Circuit Judge.
Date Filed: 01/09/2017
Entry ID: 6060414
Appellant Ángel Cotto-Negrón pled
guilty to one count of committing a Hobbs Act robbery in violation
of 18 U.S.C. § 1951(a) and was sentenced to a prison term of 120
months. On appeal, he challenges his sentence as both procedurally
and substantively unreasonable.
procedurally
unreasonable
We agree that the sentence was
because
it
was
premised
on
factual
findings that are not supported by any evidence in the record.
Accordingly, we vacate the sentence and remand the case for
resentencing.
I.
In setting forth the facts of this case, we draw upon
the stipulated facts in the plea agreements of Cotto-Negrón and
his co-defendants and their respective presentence investigation
reports ("PSRs").
In December 2010, Cotto-Negrón and a number of codefendants met several times to plan a robbery of a Kmart store
located at San Patricio Plaza in Guaynabo, Puerto Rico.
On
December 31, Cotto-Negrón, along with William Zambrana-Sierra,
Analdi
Tanco-Moreno,
accomplice
Edgar
and
one
other
Velazquez-Fontanez
co-defendant,
to
the
drove
Kmart,
Velazquez-Fontanez off to execute the robbery.
with
dropping
There is no
evidence in the record indicating which of the co-defendants was
the driver of the car.
Velazquez-Fontanez entered the store and
hid in the sporting goods section until the store closed.
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He
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announced to two night crew employees that the store was being
robbed and then struck one of the employees with the butt of a
firearm, causing bleeding and a laceration to the victim's head.
Velazquez-Fontanez next tied up the employees and began stealing
merchandise.
After more employees arrived at the Kmart in the
morning, Velazquez-Fontanez forced the manager to open the store
safe, and he took the money inside.
He exited the store with the
merchandise and cash, exceeding $50,000 in total value.
At that
point the same group of accomplices arrived back at the Kmart,
picked up Velazquez-Fontanez, and drove off.
In September 2013, a grand jury issued a five-count
indictment related to the robbery of two Kmart stores, including
the Kmart at San Patricio Plaza.
Cotto-Negrón, Zambrana-Sierra,
and Tanco-Moreno were charged under count one, conspiracy to commit
robbery, and count three, robbing the Kmart at San Patricio Plaza,
both in violation of the Hobbs Act, 18 U.S.C. § 1951(a).
They
were not charged under any other counts in the indictment.
All three agreed to plead guilty to count three in
exchange for dismissal of the conspiracy count.
Each of their
plea agreements incorporated identical stipulated facts regarding
their illegal activity, and the PSRs of Cotto-Negrón and ZambranaSierra
likewise
contained
an
identical
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recitation
of
facts
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Entry ID: 6060414
describing the San Patricio robbery and their respective roles in
the crime.1
As part of their respective plea agreements, CottoNegrón, Zambrana-Sierra, and Tanco-Moreno each agreed with the
government to a recommended Sentencing Guidelines calculation at
a total offense level of 26.2
Zambrana-Sierra and Tanco-Moreno
were both sentenced in accordance with their agreements at the low
end of the Guidelines range consistent with their respective
criminal histories.
Cotto-Negrón
Sierra.
was
sentenced
one
day
after
Zambrana-
As with the other two defendants, the court accepted the
calculation recommended in his plea agreement -- but with one
addition.
Citing a recommendation by the probation office in
Cotto-Negrón's PSR, the court announced at the sentencing hearing
that it was including a two-level Guidelines enhancement because
1
Tanco-Moreno's PSR is not a part of the record in this case,
but we have no reason to believe that the facts concerning the San
Patricio robbery in Tanco-Moreno's PSR are any different from those
described in Cotto-Negrón's or Zambrana-Sierra's PSRs.
2
Each defendant agreed to the same recommended Guidelines
calculation: A base offense level of twenty, see U.S.S.G.
§ 2B3.1(a); five additional levels for the brandishing or
possession of a firearm, see U.S.S.G. § 2B3.1(b)(2)(C); two
additional levels for the physical restraint of a victim, see
U.S.S.G. § 2B3.1(b)(4)(B); two additional levels because the value
of
the
loss
was
greater
than
$50,000,
see
U.S.S.G.
§ 2B3.1(b)(7)(C); and the subtraction of three levels for
acceptance of responsibility, see U.S.S.G. § 3E1.1.
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a victim had sustained a bodily injury.3
Entry ID: 6060414
The resulting total
offense level for Cotto-Negrón was thus 28.
Cotto-Negrón's lawyer objected to the application of the
bodily injury enhancement because the court had not imposed it on
the two other co-defendants.
The following colloquy then ensued:
COURT: Don't talk about yesterday's sentence,
because the individual in that case did not
drive anybody to the Kmart, nor picked up any
victims in the Kmart.
It's completely
different. It's not the same.
DEFENSE COUNSEL:
As I understand it, Your
Honor, they're in the same situation.
COURT:
No.
situation.
No.
They are not in the same
DEFENSE COUNSEL: Your Honor, the statement of
facts is the same.
COURT: No, they are not the same.
not the same by any means.
They are
* * *
COURT:
Have you read
yesterday's defendant?
DEFENSE COUNSEL:
COURT:
the
PS[R]
from
No, Your Honor.
So how do you know it's the same?
DEFENSE COUNSEL:
Because, Your Honor, the
level of participation, during the process of
gathering information from the case, they were
3
Guidelines § 2B3.1(b)(3) provides: "If any victim sustained
bodily injury, increase the offense level according to the
seriousness of the injury[.]" A bodily injury that does not amount
to serious, permanent, or life-threatening bodily injury is
assigned an increase of two levels. Id. § 2B3.1(b)(3)(C).
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in the same exact position as to level of
participation.
COURT:
They are not in the same level of
participation.
* * *
DEFENSE COUNSEL: I'm just saying, Your Honor,
here in the PSR, definitely going to the
argument of what we understand is the
disparity between one defendant and the other,
it says that they dropped him off, and they
will return to Kmart the next day. So if we
have a defendant that did not receive the
enhancement that Mr. Cotto is getting, and the
participation is the same, there is an issue.
COURT: Your client took the robbers that were
going to stay inside the store to the store,
and picked them up the next day.
DEFENSE COUNSEL:
COURT:
I understand that.
The other gentleman did not do that.
DEFENSE COUNSEL: But, Your Honor, his name is
right there in the facts.
COURT: He may be there, but that's not what
happened.
DEFENSE COUNSEL: Well, the information that
we have is they're in the same position, Your
Honor.
COURT:
That's not what happened.
DEFENSE COUNSEL:
And that's our argument.
COURT: Completely different case. . . .
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Entry ID: 6060414
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The court then sentenced Cotto-Negrón to a prison term of 120
months,
near
the
high
end
of
the
Guidelines
range
for
his
applicable criminal history category and total offense level.4
Cotto-Negrón timely appealed, arguing that his sentence
was procedurally unreasonable because the court relied on clearly
erroneous facts, and substantively unreasonable because the court
applied the two-level enhancement to him when it declined to apply
it to his two identically culpable co-defendants.
II.
When
sentencing
examining
decisions,
our
a
district
review
whether they are 'reasonable.'"
is
court's
"limited
discretionary
to
determining
United States v. Ayala-Vazquez,
751 F.3d 1, 29 (1st Cir. 2014) (quoting Gall v. United States, 552
U.S. 38, 46 (2007)).
This review is a bifurcated process in which
we first determine whether the sentence imposed is procedurally
reasonable before turning to its substantive reasonableness.
When
examining
the
procedural
reasonableness
Id.
of
a
sentence, "we review factual findings for clear error; arguments
that the sentencing court erred in interpreting or applying the
guidelines de novo; and judgment calls for abuse of discretion
simpliciter."
United States v. Leahy, 668 F.3d 18, 21 (1st Cir.
4
Cotto-Negrón was in Criminal History Category III. Combined
with a total offense level of 28, that category results in a
sentencing range of 97-121 months of imprisonment.
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2012) (citations omitted).
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Date Filed: 01/09/2017
Entry ID: 6060414
Significant procedural errors include
"failing to calculate (or improperly calculating) the Guidelines
range, treating the Guidelines as mandatory, failing to consider
the [18 U.S.C.] § 3553(a) factors, selecting a sentence based on
clearly erroneous facts, or failing to adequately explain the
chosen sentence -- including an explanation for any deviation from
the Guidelines range."
Ayala-Vazquez, 751 F.3d at 29 (alterations
in original) (quoting Gall, 552 U.S. at 51).
III.
Cotto-Negrón's
procedural
unreasonableness
argument
focuses on the district court's decision to impose a two-level
enhancement to his offense level under U.S.S.G. § 2B3.1(b)(3)(A).
That guideline provides for a two-level increase "[i]f any victim
sustained bodily injury" during the course of a robbery.
Cotto-
Negrón does not contest that a victim of the crime suffered a
bodily injury.
To the contrary, the injury is acknowledged both
in his plea agreement and in his PSR.
Instead, he focuses on the
facts cited by the district court to justify application of the
enhancement in his sentencing but not in the sentencing of codefendants Zambrana-Sierra and Tanco-Moreno.
Cotto-Negrón's attorney argued at the sentencing hearing
that the enhancement should not be imposed on his client because
the
district
court
did
not
sentencing Zambrana-Sierra.
apply
it
the
previous
day
when
The district court admonished him,
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stating that Zambrana-Sierra was less culpable because, unlike
Cotto-Negrón, he "did not drive anybody to the Kmart, nor picked
up any victims in the Kmart" and that "[i]t's completely different.
It's not the same."
When Cotto-Negrón's attorney attempted to
point out to the district court that the co-defendants' plea
agreements described identical factual circumstances, the court
responded "No. No.
They are not in the same situation."
The judge
asserted on the record no fewer than eight times that CottoNegrón's role in the crime was factually distinct from ZambranaSierra's.5
We find no basis in the record for the court's conclusion
that Cotto-Negrón played a role in the Kmart robbery different
from that of Zambrana-Sierra and Tanco-Moreno.
All three plea
agreements and at least two of the PSRs (i.e., Cotto-Negrón's and
Zambrana-Sierra's), see supra note 1, reported the exact same facts
about the robbery and depicted identical roles for each defendant.
The district court cited no evidence in the record showing, for
example, that Cotto-Negrón was the driver of the vehicle that
5
The district court also implied that Cotto-Negrón's attorney
was wrong to compare his client's criminal culpability to ZambranaSierra's culpability because Cotto-Negrón's attorney was not privy
to Zambrana-Sierra's PSR and could not know if the factual
circumstances were the same for both defendants. For purposes of
this appeal, we granted Cotto-Negrón's attorney access to the
relevant portions of Zambrana-Sierra's PSR and note that both
defendants' PSRs indeed contain identical language regarding their
respective roles in the San Patricio robbery.
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dropped Velazquez-Fontanez at the Kmart.
in the record, either.
Entry ID: 6060414
We find no such evidence
The court thus clearly erred in ascribing
a different level of culpability to Cotto-Negrón on the basis of
his role in the offense.
Cotto-Negrón argues before us that because his sentence
hinged
upon
clearly
erroneous
facts,
it
was
procedurally
unreasonable and cannot stand. In response, the government insists
that even if there are no factual differences between CottoNegrón's culpability and that of his two co-defendants, his claimed
entitlement to resentencing is foreclosed by our decision in United
States v. Kneeland, 148 F.3d 6 (1st Cir. 1998).
In Kneeland, the
defendant challenged the application of a Guidelines enhancement
for his role as an organizer in a mail fraud and money laundering
scheme, arguing that he was no more culpable than a co-defendant
who did not receive the role enhancement.
Id. at 16.
Although we
noted circumstantial differences between Kneeland, who received
the enhancement, and the co-defendant who did not, we also offered
the following observation:
co-defendant's]
role
in
"Even if we were to assume that [the
the
[crime]
was
commensurate
with
Kneeland's, this argument, without more, would not provide a basis
for overturning the enhancement."
Id.
The government argues that
because it is undisputed that the victim at the San Patricio Kmart
sustained
a
bodily
injury
and
that
Cotto-Negrón's
guideline
sentencing range was calculated accurately, he is no different
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from the defendant in Kneeland, and that case requires us to affirm
his sentence.
The government, however, has misapplied the holding of
Kneeland to the facts of this case.
There, the defendant asserted
that a role enhancement was inapplicable based on the facts of the
crime.
Here, the question is not whether the enhancement is
factually supportable, but whether it was procedurally reasonable
to apply the enhancement -- and hence impose a sentence -- based
on the district court's clearly erroneous assumption that CottoNegrón was more culpable than his co-defendants.
precedent instructs that it was not.
Well established
Even if the district court
could have applied the enhancement to Cotto-Negrón despite its
decision not to apply it to his co-defendants, a matter on which
we take no view, it may not justify that difference based upon
clearly erroneous facts.
See Ayala-Vazquez, 751 F.3d at 29
(holding that "selecting a sentence based on clearly erroneous
facts" constitutes a "significant procedural error" (quoting Gall,
552 U.S. at 51)); see also United States v. Rodriguez-Melendez,
828 F.3d 35, 40 (1st Cir. 2006) ("To protect the fairness and
integrity of the sentencing process, the district court should
impose a sentence . . . based on a correct view of the facts.").
In sum, the district court committed a clear error when
it insisted without factual support that Cotto-Negrón was more
culpable in the commission of the San Patricio Kmart robbery than
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co-defendants Zambrana-Sierra and Tanco-Moreno.
Entry ID: 6060414
Hence, we vacate
Cotto-Negrón's procedurally unreasonable sentence and remand the
case for resentencing.
We express no view as to the appropriate
sentence or Guidelines calculation on remand.6
So ordered
6
In light of this disposition, we do not address and intimate
no
view
on
appellant's
argument
concerning
substantive
unreasonableness.
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