US v. Roman-Huertas

Filing

OPINION issued by Juan R. Torruella, Appellate Judge; Sandra L. Lynch, Appellate Judge and Rogeriee Thompson, Appellate Judge. Published. [15-2109]

Case: 15-2109

Document: 00117115807

Page: 1

Date Filed: 02/08/2017

Entry ID: 6068399

United States Court of Appeals
For the First Circuit
No. 15-2109
UNITED STATES OF AMERICA,
Appellee,
v.
JULIO ROMÁN-HUERTAS,
Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Aida M. Delgado-Colón, U.S. District Judge]

Before
Torruella, Lynch, and Thompson,
Circuit Judges.

Eleonora C. Marranzini, Research and Writing Specialist, Eric
Alexander Vos, Federal Public Defender, and Vivianne M. MarreroTorres, Assistant Federal Public Defender, Supervisor, Appeals
Section, on brief for appellant.
Francisco A. Besosa-Martínez, Assistant United States
Attorney, Rosa Emilia Rodríguez-Vélez, United States Attorney, and
Mariana E. Bauzá-Almonte, Assistant United States Attorney, Chief,
Appellate Division, on brief for appellee.

February 8, 2017

Case: 15-2109

Document: 00117115807

Page: 2

Date Filed: 02/08/2017

Entry ID: 6068399

TORRUELLA, Circuit Judge. Julio Román-Huertas ("Román")
pled guilty to being a felon in possession of a firearm in
violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2).

His plea

agreement recommended a total offense level under the United States
Sentencing Guidelines (the "Guidelines") of seventeen.

At his

sentencing hearing, Román objected to the total offense level of
seventeen, arguing that it should instead be twelve because his
prior felony was not "a controlled substance offense" under the
Guidelines.

Relying on an untranslated Spanish document, the

district court ruled that his total offense level was seventeen.
The Guidelines' recommended sentence was twenty-seven to thirtythree months' imprisonment, but the district court sentenced Román
to forty-six months' imprisonment.

Because the district court

improperly relied on an untranslated document, we vacate Román's
sentence and remand for resentencing.
I.

BACKGROUND

On March 8, 2014, while Román and another man were
driving in San Juan, Puerto Rico, Román fired one shot from his
pistol into the air.

Agents from the Puerto Rico police department

were in the area, and they arrested Román and seized Román's pistol
and an additional magazine.

Román was charged with being a felon

in possession of a firearm.

-2-

Case: 15-2109

Document: 00117115807

Page: 3

Date Filed: 02/08/2017

Entry ID: 6068399

On April 16, 2014, Román entered into a plea agreement,
which included "advisory Guideline calculations" of a base offense
level

of

twenty

and

a

three-level

credit

for

acceptance

responsibility, for a total offense level of seventeen.

of

This

calculation assumed that Román's prior conviction had been a
"controlled substance offense" under U.S.S.G. § 2K2.1(a)(4)(A).
Although the parties did not stipulate to a Criminal History
Category

("CHC"),

the

plea

agreement's

advisory

Guideline

calculations indicated that Román's recommended sentence would be
twenty-seven to thirty-three months if he had a CHC of II.

"The

parties agree[d] to recommend the lower end of the applicable
guideline range."
On

August

12,

2014,

the

probation

presentence investigation report (the "PSR").

officer

filed

a

The PSR calculated

a total offense level of seventeen and a CHC of II, resulting in
a recommended sentence of twenty-seven to thirty-three months.
Román's sentencing memorandum, filed on September 5, 2014, stated
that his "offense level [was] expected to be level 17."

On

August 27, 2015, the probation officer filed an addendum to the
PSR,

which

stated

that

Román

"ha[d]

not

filed

any

written

objections."
On September 2, 2015, more than a year after the PSR was
filed, Román filed objections to it.

-3-

Román argued that the PSR

Case: 15-2109

Document: 00117115807

improperly

calculated

his

Page: 4

total

Date Filed: 02/08/2017

offense

level

as

Entry ID: 6068399

seventeen,

because Román's prior conviction under Article 406 of the Puerto
Rico Controlled Substances Act, P.R. Laws tit. 24, § 2406, "is not
a 'controlled substance offense' in regards to the Guideline
Section

2K2.1."

offense[s]

Specifically,

under

definition"

of

a

[Article

Román

406]

controlled

meet

substance

asserted
[U.S.S.G.
offense. 1

that

"not

all

§ 4B1.2(b)'s]
Thus,

Román

contended that his total offense level should be twelve, 2 not
seventeen as the PSR and his plea agreement recommended.
The district court held a sentencing hearing the next
day, and Román affirmed that he "reinstate[d] this objection" to
the total offense level of seventeen.

The Government responded

that under "a modified categorical approach" the district court
could "examine if there are existing documents that allow us to
determine whether [Román's] particular violation of [Article] 406"
was a controlled substance offense.

The district court then

stated that it had "the document here which has the legal basis."3

1

U.S.S.G. § 4B1.2(b) provides the Guidelines' definition of a
"controlled substance offense" and is cross-referenced by other
sections of the Guidelines, including U.S.S.G. § 2K2.1(a)(4)(A).
2

If his prior conviction was not for a controlled substance
offense, Román's base offense level would be fourteen, rather than
twenty, see U.S.S.G. § 2K2.1(a)(6), but he would only be eligible
for a two-level acceptance of responsibility credit, see U.S.S.G.
§ 3E1.1(b).
3

The district court and the parties used both "document" and
-4-

Case: 15-2109

Document: 00117115807

Page: 5

Date Filed: 02/08/2017

Entry ID: 6068399

According to the district court, that document "indicate[d] . . .
that the charges were for violation of . . . [A]rticle 401 that
entails distribution of a controlled substance" but were "reduced
to a violation of [A]rticle 406."

The district court further

explained that "the description" in "this criminal complaint . . .
entails and encompasses the possession with intent to distribute
a controlled substance."
offense

charged

meets

substance offense."

The district court then stated that "the
the

definition

of

.

.

.

a

controlled

When Román asserted "that the document[s]

that the Court can examine are limited," the district court replied
that it had "exercise[d its] due diligence in terms of checking
that we had the proper documents."
The document the district court relied on was never
entered into the record, and so it is not available to us on
appeal.

The parties agree, and it is clear from the record,

however, that the document was in Spanish.
During the argument concerning the proper calculation of
Román's

total

offense

level,

the

Government

opposed

Román's

"documents" to describe what they were reviewing. It is not clear
from the hearing transcript whether there was a single document or
multiple documents, and the document or documents are not part of
the record. Except where quoting from the transcript, we will use
"document" to describe what the parties reviewed.
To facilitate meaningful review of sentences, we urge parties
to include in the appellate record any documents relied upon below.
-5-

Case: 15-2109

Document: 00117115807

arguments on the merits.

Page: 6

Date Filed: 02/08/2017

Entry ID: 6068399

It never objected, either in writing or

at the hearing, to Román's untimely objection to the PSR.

After

Román presented his mitigating facts, the Government recommended
a sentence at the "lower end" of the Guidelines' recommended range.
After

the

exchange

concerning

the

nature

of

the

controlled substance offense, Román "ask[ed] the Court to follow
the joint recommendation and impose a sentence of 27 months."

The

district court ultimately sentenced Román to forty-six months'
imprisonment, highlighting the fact that Román had fired his gun
into the air "while driving a vehicle" in a city, reflecting a
"blatant disregard for the law and public safety."
Román timely appealed his sentence.

He argues that the

district court (1) committed a procedural error when it determined
that Román's prior conviction was a "controlled substance offense"
under U.S.S.G. § 2K2.1(a)(4)(A), (2) committed plain error by
relying on an untranslated Spanish document, (3) committed a
procedural error by failing to justify its upward variance, and
(4) imposed a sentence that was substantively unreasonable.
II.
A.

ANALYSIS

The English Language Requirement and the Standard of Review
The

Jones

Act

requires

that

"[a]ll

pleadings

and

proceedings in the United States District Court for the District
of Puerto Rico . . . be conducted in the English language."

-6-

48

Case: 15-2109

Document: 00117115807

U.S.C. § 864.

Page: 7

Date Filed: 02/08/2017

Entry ID: 6068399

"It is clear, to the point of perfect transparency,

that federal court proceedings must be conducted in English."
United States v. Millán-Isaac, 749 F.3d 57, 64 (1st Cir. 2014)
(quoting United States v. Rivera-Rosario, 300 F.3d 1, 5 (1st Cir.
2002)).

This rule applies to all stages of a federal court

proceeding, including a sentencing hearing.4

Id.

Román concedes that he did not object to the district
court's use of the untranslated document.

The parties therefore

assume that the plain error standard of review applies.

They are

incorrect.

In Rivera-Rosario, the defendants' attorney did not

object

the

to

documents

to

presentation

the

jury

and

of

Spanish

in

fact

translation it considered faulty.
Government's

argument

that

the

tape-recordings

objected

300 F.3d at 5.
plain

error

to

an

and

English

We rejected the

standard

applied,

holding that the district court had an "independent duty" to ensure
the proceedings were conducted in English, and so "we relieve[d]
the parties of their usual duty to contemporaneously object."
at 6-7.

Id.

Instead, we held that "violations of the English language

requirement

will

constitute

reversible

4

error

whenever

the

The fact that a probation officer, rather than a party, supplied
the untranslated document to the district court is irrelevant to
our analysis.
The Jones Act applies with equal force to any
material that a probation officer wants the district court to
consider at sentencing.
-7-

Case: 15-2109

Document: 00117115807

Page: 8

Date Filed: 02/08/2017

Entry ID: 6068399

appellant can demonstrate that the untranslated evidence has the
potential to affect the disposition of an issue raised on appeal."
Id. at 10.

We reaffirmed this standard of review in Millán-Isaac,

rejecting the Government's assertion that we had "confined RiveraRosario to its facts" and declining to follow any opinions that
implied a different standard.

Millán-Isaac, 749 F.3d at 64 n.1.

We will therefore overturn Román's sentence if "the untranslated
[document] has the potential to affect the disposition" of his
appeal.5
B.

Id. at 64.

Román Did Not Waive His Objection to the Calculation of His
Total Offense Level
We must first address the Government's contention that

Román knowingly waived his objection to the calculation of his
total offense level.

"Waiver, where it occurs, is treated as an

'intentional,'

therefore

position."

and

permanent,

abandonment

of

a

United States v. Torres-Rosario, 658 F.3d 110, 115

(1st Cir. 2011) (citing United States v. Walker, 538 F.3d 21, 22
(1st

Cir.

2008)).

"[A]

waived

5

issue

ordinarily

cannot

be

In Rivera-Rosario, we reviewed all five of the defendants'
convictions for reversible error under the Jones Act, even though
only two had "raised this issue on appeal," because "violations of
the English language requirement . . . have the potential to
eviscerate a party's right to meaningful appellate review." 300
F.3d at 10 n.11.
We therefore review Román's Jones Act claim
under the correct standard even though he mistakenly believed that
it was subject to plain error review.
-8-

Case: 15-2109

Document: 00117115807

Page: 9

Date Filed: 02/08/2017

Entry ID: 6068399

resurrected on appeal."

United States v. Rodríguez, 311 F.3d 435,

437 (1st Cir. 2002).

"By contrast, a mere failure to object

'forfeits' a claim, so review on appeal is [generally] only for
plain error."

Torres-Rosario, 658 F.3d at 115.

If Román waived

his objection to his calculated total offense level of seventeen,
the district court's use of the untranslated document -- which
related only to that calculation -- cannot affect the disposition
of his appeal.
The Government identifies three ways in which Román
waived his objection:

first, by stipulating to the calculation

in the plea agreement; second, by failing to file a written
objection to the PSR until the day before the sentencing hearing;
and

third,

by

acquiescing

at

the

sentencing

hearing.

The

Government did not raise Román's stipulation or untimely objection
before the district court, however, and instead addressed the
merits of Román's objection, and so it waived the first two
asserted bases.

See United States v. Castro-Taveras, 841 F.3d 34,

54 (1st Cir. 2016) ("[T]he government did not argue forfeiture and
instead addressed the merits of [the] claim . . . . Hence, the
government waived its forfeiture argument . . . ."); Sotirion v.
United States, 617 F.3d 27, 32 (1st Cir. 2010) (holding that the
government waived its procedural default defense by failing to
raise it in the district court).

-9-

For its third basis, the

Case: 15-2109

Document: 00117115807

Government

relies

sentencing hearing:

on

a

Page: 10

statement

Date Filed: 02/08/2017

by

Román's

counsel

Entry ID: 6068399

at

the

"Then Your Honor I would ask the Court to

follow the joint recommendation and impose a sentence of 27
months."

Absent context, this may seem like acquiescence, but it

came after the district court had already ruled that "the offense
charged meets the definition of . . . a controlled substance
offense" and that it "had the proper documents" to make that
determination.

Accepting the district court's ruling and moving

to a fallback position is neither waiver nor forfeiture.
C.

The Untranslated Document Had the Potential to Affect the
Disposition of Román's Appeal
We must therefore examine whether the district court's

use of the untranslated document "has the potential to affect"
Román's argument that his prior conviction under Article 406 was
not a controlled substance offense.

U.S.S.G. § 4B1.2(b) defines

a "controlled substance offense" to include the violation of a
state law "that prohibits . . . the possession of a controlled
substance (or a counterfeit substance) with intent to manufacture,
import, export, distribute, or dispense."

This encompasses "the

offenses of aiding and abetting, conspiring, and attempting to
commit such offenses."

U.S.S.G. § 4B1.2 cmt. n.1.

however, include mere possession offenses.

It does not,

See United States v.

Ramos-González, 775 F.3d 483, 507 n.27 (1st Cir. 2015).

-10-

Case: 15-2109

Document: 00117115807

Page: 11

Date Filed: 02/08/2017

Entry ID: 6068399

Román previously pled guilty to Article 406, but, as the
Government concedes, that statute "encompasses both predicate and
non-predicate

conduct."

It

was

the

Government's

burden

to

establish, through the kinds of documents approved by Shepard v.
United

States,

544

U.S.

13,

17

(2005),

that

conviction was a controlled substance offense.

Román's

prior

United States v.

Dávila-Félix, 667 F.3d 47, 55 (1st Cir. 2011).

The Government

contends that Román "does not refute -- and indeed, concedes" that
he was charged under Puerto Rico Laws tit. 24, § 2401 ("Article
401"), which the Government asserts must be a controlled substance
offense.6

But the Government must show that Román was convicted

of a controlled substance offense, and he pled guilty under Article
406, not Article 401.

To bridge this gap, the Government further

asserts that "the record" shows that Román was "charged under
Article 401's 'possession with intent to distribute' modality,"
and so his Article 406 guilty plea was a distribution conviction.
The Government cites to the PSR in support of this proposition,
however, and a PSR is not "an approved source for determining
whether"

a

defendant's

conviction

6

was

based

on

a

controlled

Román disputes whether convictions under Article 401 are
categorically controlled substance offenses. We have previously
stated that they are not, Dávila-Félix, 667 F.3d at 56, but we do
not rely on that holding here, and so we need not address the
Government's argument that we were not apprised of controlling
Puerto Rico case law in that case.
-11-

Case: 15-2109

Document: 00117115807

substance offense.

Page: 12

Date Filed: 02/08/2017

Entry ID: 6068399

Ramos-González, 775 F.3d at 506 (citing United

States v. Carter, 752 F.3d 8, 20 (1st Cir. 2014)).
Because

the

district

court

relied

only

on

the

untranslated document to calculate Román's total offense level,
that document "affect[s] the disposition" of his appeal.
Millán-Isaac, 749 F.3d at 64.

See

We therefore must vacate Román's

sentence and remand for resentencing.

We need not reach Román's

remaining claims of error.
Finally,

we

briefly

address

resentencing.

The

untranslated document was not evidence, and so any certified
translation would constitute new evidence.

In general, "the

district court may consider only such new arguments or new facts
as are made newly relevant by the court of appeals' decision" on
remand for resentencing.

United States v. Dávila-Félix, 763 F.3d

105, 110 (1st Cir. 2014) (alteration omitted) (quoting United
States v. Ticchiarelli, 171 F.3d 24, 32 (1st Cir. 1999)).

We have

previously allowed additional factfinding where the Government did
not have an incentive to present evidence, but not "where the
government

asked

for

the

enhancement

but

failed

to

adduce

sufficient proof for its imposition -- a situation in which there
would not likely be reason to permit a second bite at the apple."
United States v. Montero-Montero, 370 F.3d 121, 124 (1st Cir.
2004).

Here, the Government asked for a total offense level of

-12-

Case: 15-2109

Document: 00117115807

seventeen

"but

imposition."

failed

See id.

Page: 13

to

adduce

Date Filed: 02/08/2017

sufficient

proof

Entry ID: 6068399

for

its

The Jones Act requires federal courts to

conduct proceedings "in the English language," 48 U.S.C. § 864,
and our case law has reaffirmed this many times.

E.g., Rivera-

Rosario, 300 F.3d at 5; Millán-Isaac, 749 F.3d at 64.

The

Government

the

therefore

had

every

incentive

to

ensure

that

district court relied only on evidence presented in the English
language.

"[N]o party -- including the government -- is entitled

to an unlimited number of opportunities to seek the sentence it
desires."

Ramos-González, 775 F.3d at 508 (quoting Dávila-Félix,

763 F.3d at 113).

On remand, therefore, the Government may not

present new evidence of Román's prior conviction.
III.

CONCLUSION

We vacate Román's sentence and remand for resentencing
because the district court improperly relied on an untranslated
document in calculating Román's offense level.
Vacated and Remanded.

-13-