Filed: Sep. 11, 2015
Latest Update: Mar. 02, 2020
Summary: 4 provision, USSG § 2L2.1(a), provided a base offense level of 11.documents, the PSR increased Mendez's base offense level by 9. For, example, it stated a couple of times that enhancements on Counts, 1 and 2 were warranted because the conspiracy involved over 100, documents and aliens.
United States Court of Appeals
For the First Circuit
No. 14-1566
UNITED STATES,
Appellee,
v.
JORGE LUIS MENDEZ, a/k/a Daniel,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Juan M. Pérez-Giménez, U.S. District Judge]
Before
Howard, Chief Judge,
Selya and Thompson, Circuit Judges.
Kerry A. Haberlin on brief for appellant.
Leslie R. Caldwell, Assistant Attorney General, Sung-Hee Suh,
Deputy Assistant Attorney General, Scott A.C. Meisler, Criminal
Division, Appellate Section, U.S. Department of Justice, and Hope
S. Olds, Senior Trial Attorney, Human Rights and Special
Prosecutions Section, Criminal Division, on brief for appellee.
September 11, 2015
THOMPSON, Circuit Judge. Jorge Luis Mendez, who was
indicted in connection with a vast conspiracy to provide
identification documents to undocumented aliens in the United
States, pled guilty to various charges. He was sentenced to just
over six years in prison. That sentence forms the basis for this
appeal. Mendez contends that it is too long and that various
errors were made by the sentencing judge when handing it down.
Because our review of his claims is frustrated by an insufficient
explanation from the district court, we vacate and remand for
resentencing.
BACKGROUND
A. The Conspiracy
Mendez, along with fifty-plus cohorts, was part of a
scheme to supply undocumented aliens in the continental United
States with the identities of United States citizens residing in
Puerto Rico.1 The conspiracy extended over the course of almost
three years (April 2009 to January 2012) and spanned the country,
with its members operating out of various states (Massachusetts,
Illinois, Pennsylvania, and Ohio, to name a few) and Puerto Rico.
1 The facts are derived from the change-of-plea colloquy, the
undisputed portions of the presentence investigation report, and
the transcript of the disposition hearing. See United States v.
Almonte–Nuñez, 771 F.3d 84, 86 (1st Cir. 2014); United States v.
Del Valle–Rodríguez,
761 F.3d 171, 173 (1st Cir. 2014).
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There were distinct jobs to be done, with Puerto Rico-
based Mendez operating as a "Savarona Supplier." The Savarona
Suppliers would procure "unlawful document sets," a term defined
in the indictment and presentence investigation report (PSR) as
"Puerto Rico-issued birth certificates and corresponding U.S.
Social security cards (both pertaining to the same Puerto Rican
person)," as well as individual fraudulently obtained documents
(termed "unlawful documents"), like driver's licenses and voter
registration cards.
Savarona Suppliers, like Mendez, then transmitted the
documents to identity brokers (who were the ones bringing in the
customers) and the brokers would then sell the sets for $700 to
$2,500 a piece, with more money required for additional individual
documents. The customers were undocumented aliens and others
residing in the continental United States.
B. The Indictment
In December 2011, Mendez, along with fifty-two co-
defendants, was named in a fifty-count indictment. Mendez was
picked up the next month. At the time of his arrest, he had in
his possession numerous identity documents in other people's
names, including eleven Puerto Rico birth certificates, ten social
security cards, one Puerto Rico driver's license, one Puerto Rico
electoral card, and the personal identifying information
(including social security numbers) for another eight individuals.
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The vast majority of Mendez's co-defendants ended up
pleading guilty and, after some failed negotiations, Mendez did
the same. Six days before trial was to commence, Mendez pled
guilty without a written plea agreement to Count 1, conspiracy to
possess, produce, and transfer identification documents in
violation of 18 U.S.C. § 1028; Count 2, conspiring to encourage an
alien to reside in the United States in violation of 8 U.S.C. §
1324; and Counts 22, 23, and 26, aggravated identity theft, in
violation of 18 U.S.C. § 1028A.
C. Presentence Dispute
A debate about Mendez's appropriate sentencing range
arose prior to the sentencing hearing with respect to Counts 1 and
2.2 All involved (probation and parties) agreed that Counts 1 and
2 should be grouped, meaning that the governing offense level would
be the "the highest offense level of the counts in the Group."
USSG § 3D1.3(a). The question was whether Count 1 or 2 supplied
the highest offense level.
The probation office thought Count 1 (conspiracy to
commit identity fraud) did. The computation for Count 1, as
evidenced by the PSR, went as follows. The relevant guidelines
2 There was no controversy surrounding the aggravated identity
theft counts (Counts 22, 23, 26). The parties agreed that a
mandatory two-year term for those counts was to run consecutive to
any sentences on Counts 1 and 2 per 18 U.S.C. § 1028A(a)(1) and
USSG § 2B1.6. Mendez does not appeal that aspect of his sentence.
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provision, USSG § 2L2.1(a), provided a base offense level of 11.
That provision calls for the offense level to be increased by
various levels based on the number of documents involved. USSG §
2L2.1(b)(2). Positing that the offense here involved 100 or more
documents, the PSR increased Mendez's base offense level by 9. It
then recommended a 3-level enhancement because Mendez was a manager
or supervisor in a criminal activity involving five plus
participants pursuant to USSG § 3B1.1(b). Assuming a 2-level
decrease for acceptance of responsibility under USSG § 3E1.1(a),
the PSR projected the total offense level of 21 for Count 1. Given
Mendez's criminal history, this yielded a guideline sentencing
range of 37 to 46 months on Counts 1 and 2.
Mendez lodged no objection to the PSR. The government,
however, took exception. The government filed a sentencing
memorandum, which Mendez also did not object to, in which it argued
that Count 2 (conspiracy to encourage aliens to reside in the
United States) provided the higher offense level. We start with
the government's math and move on to its rationale.
The government began with a base offense level of 12, as
provided by USSG § 2L1.1(a)(3). Like the guideline pertinent to
Count 1 (§ 2L2.1), this provision called for the offense level to
be increased by various levels in certain circumstances. However,
the determining factor was not the number of documents involved
but rather the number of aliens induced or harbored. Id. §
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2L1.1(b)(2). Suggesting that there were sufficient facts to
demonstrate that Mendez had induced or harbored 100 or more aliens,
the government applied a 9-level enhancement.
Id. §
2L1.1(b)(2)(C). Like the PSR, the government added a 3-level
enhancement for Mendez's supervisory role and a 2-level reduction
for acceptance of responsibility. This placed the offense level
for Count 2 at 22 (one level higher than Count 1), which would
mean Mendez faced a guideline sentencing range of 41 to 51 months
on Counts 1 and 2. Given the mandatory sentence of 24 months on
the remaining counts, the ultimate range was 65 to 75 months with
the government recommending the low end.
For our purposes, the important part of the government's
calculus is the 9-level enhancement it proposed. Basically (and
we will say more on the particular theories in a bit) the
government thought that Mendez had not only trafficked 100
documents, but had also induced or harbored 100 aliens, therefore
justifying the enhancement on Count 2. According to the sentencing
memorandum, this is why. The government, which suggested that the
whole conspiracy involved over 1,500 trafficked identities, noted
that some of Mendez's co-defendants had admitted in their plea
agreements that they had worked with Mendez, the conspiracy
involved over 100 documents, and the documents were being
trafficked to undocumented aliens. One particular co-defendant,
"Pena," admitted that he was involved in trafficking at least 70
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documents, which had been sent to him by Mendez, to undocumented
aliens in Massachusetts. The government also pointed out that on
the day of Mendez's arrest, another 20 identities were found in
his home presumably slated for more undocumented aliens.
Furthermore, text messages intercepted from Mendez's phone during
a 4-month period contained approximately 60 identities that he was
trafficking. The government concluded that "[e]xtrapolating over
the two-year conspiracy, this shows that well over 100 identities
were involved in this case."
The government thought the PSR further supported its
position. It reasoned that because the PSR had found that 100 or
more documents had been involved, warranting the 9-level
enhancement for Count 1 under § 2L2.1, it necessarily followed
that over 100 document sets pertaining to over 100 aliens were
involved. It based this claim on Note 2 of § 2L2.1, which (at
least according to the government) "reads that 'one document' is
a 'set of documents intended for use by a single person.'"3
3 The government selectively quotes and then contorts the note's
language. In its entirety, it provides: "Where it is established
that multiple documents are part of a set of documents intended
for use by a single person, treat the set as one document." USSG
§ 2L2.1, note 2. The actual language makes the government's theory
suspect. There is no indication that probation found such a thing
established and, therefore, was using the term "document" in the
manner suggested by the note. Probation simply could have meant
100 single documents, indeed the PSR (and indictment) defined
"unlawful documents" and "unlawful document sets" differently.
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The probation office responded to the government in an
addendum to the PSR. It stood by its position that Count 1 provided
the higher offense level, indicating that the office was "not
convinced that [Mendez] indeed harbored or induced over 100
aliens."
D. Sentencing
At the sentencing hearing, the government emphasized its
contention that the 100-alien enhancement should apply, making
Count 2 yield the higher offense level. For support, it simply
reiterated the argument about Note 2's language, again
extrapolating that a finding of 100 documents is equivalent to 100
aliens being induced or harbored. Mendez made no comment on the
government's position. Nor did the judge weigh in on the
disagreement between probation and the government.
After some back and forth on issues not relevant to this
appeal, the judge handed down the sentence. Noting that Counts 1
and 2 had been grouped, the judge found that the pertinent
guideline was § 2L2.1. Recall, this is the provision applicable
to Count 1, the count that probation thought controlled and which
yielded the lower offense level. The judge then went on to
calculate the offense level in the same manner as the PSR. He
stated that there was a base offense level of 11 and that "since
the offense involved 100 or more documents," a 9-level enhancement
was warranted. The judge then applied the supervisory enhancement
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and the acceptance of responsibility reduction. This should have
taken the grand total to 21, as it did for probation; however, the
judge completed his guidelines calculation by stating that the end
result was "a total offense level of 22." This, the judge
indicated, yielded an imprisonment range of 41 to 51 months.
The judge continued, stating that the "presentence
investigation report had adequately applied the guideline
computations" and that those computations "satisfactorily reflect
the components of this offense by considering its nature and
circumstances." He then briefly contemplated the 18 U.S.C. § 3553
factors, noting the mitigating factors (e.g., no history of drugs
or prior convictions) and the serious nature of the offense. The
sentence was then handed down with Mendez getting a top-of-the-
range sentence of 51 months on Counts 1 and 2, and the mandatory
agreed upon consecutive sentence of 24 months on the remaining
counts, for a total of 75 months.
Understandably confused by the fact that the judge
calculated Mendez's offense level utilizing the PSR's
calculations, but then came out with the offense level of 22 as
advocated for by the government, the prosecutor asked for
clarification. Counsel pointed out the discrepancy and then asked:
"So, I just want to confirm that Your Honor, when coming to the
twenty-two . . . did find that as to Count 2 the enhancement for
over a hundred aliens should apply; and that for Count 1 and Count
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2, Count 2 should control." The judge responded: "It does control.
Count 2 controls. We have two out, plus 9 is 21; plus 3, 24; minus
2, since there was no third point is the 22 that I mentioned."
Mendez's attorney did not object to this computation but did ask
the court to reconsider its sentence, pointing out that Mendez was
a first-time offender, he would face deportation, and some of his
supposedly more culpable co-defendants had received lesser
sentences, albeit from different judges. The judge declined. This
appeal followed.
ANALYSIS
Sentences must be both procedurally and substantively
reasonable. United States v. Clogston, 662 F.3d 588, 590 (1st
Cir. 2011). Mendez says his was neither.
On the procedural front, he first argues that the court
erred in applying the 9-level enhancement for the number of aliens
induced or harbored. More to the point, he claims that (1) the
court failed to make an individualized finding as to the number of
aliens attributable to Mendez, (2) even if the court had, the
record did not support a finding of 100 aliens, and (3) the upward
adjustment resulted in double-counting.4 Mendez's second
4 Mendez also raises what he concedes is a legally unmeritorious
argument simply for preservation purposes. Citing Alleyne v.
United States, 133 S. Ct. 2151 (2013), Mendez argues that an upward
adjustment based on judicial fact finding should be deemed
unconstitutional.
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procedural-based offering is that the judge failed to adequately
explain why Mendez deserved a top-of-the-range sentence and
instead impermissibly presumed it was reasonable because it fell
within the guidelines range.
With respect to substantive reasonableness, Mendez
claims that his 75-month aggregate sentence was too long. Among
other things, he points to the comparatively shorter sentences
some of his cohorts got, his first-time offender status, and the
fact that the sentence exceeded the government's recommendation.
We start, and ultimately stop, with Mendez's claim that
the judge erred in applying a 9-level enhancement for having
induced or harbored 100 aliens. We review this claim for plain
error as Mendez failed to preserve it below. United States v.
Ramos, 763 F.3d 45, 56 (1st Cir. 2014). That is, we ask whether
"(1) an error occurred; (2) the error was clear and obvious; (3)
the error affected the defendant's substantial rights; and (4) the
error impaired the fairness, integrity, or public reputation of
the judicial proceedings."5
Id. at 56 n.15.
Unfortunately, it is impossible to determine, based on
this record, whether a clear and obvious error (or for that matter,
5 What the third prong of this test means in the sentencing context
is that, but for the error, it is reasonably probable that the
judge would have imposed a more favorable sentence. United States
v. Ahrendt, 560 F.3d 69, 77 n.5 (1st Cir. 2009). And to satisfy
the fourth prong, "a defendant must then show that leaving the
error uncorrected would cause a miscarriage of justice."
Id.
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any error at all) occurred. "While we have on occasion gone to
significant lengths in inferring the reasoning behind, and thus in
affirming, some less-than-explicit explanations by district
courts, there are limits." United States v. Gilman,
478 F.3d 440,
446 (1st Cir. 2007) (citations omitted). If we are in fact wholly
unable to discern the court's rationale, appellate review is
unworkable and a remand is necessary.
Id. at 446-47. That is the
case here.
The judge did not make any finding with respect to
whether Mendez had indeed induced or harbored 100 aliens. In fact,
the judge said not a word about how he determined this particular
enhancement was warranted. He simply stated that "Count 2
controls." Notably, this little tidbit came out not during the
handing down of Mendez's sentence, but only when the understandably
confused prosecutor asked for clarification.
We simply have no idea why the judge applied an alien-
based enhancement, rather than a document-based enhancement as
suggested in the PSR, or why an enhancement should apply at all.
Perhaps the judge found the evidentiary proffer suggested by the
government at the change-of-plea colloquy sufficient to bring the
attributable number of aliens induced or harbored up to 100. Or
maybe he latched on to the government's questionable theory,
advanced both in its sentencing memorandum and at the sentencing
hearing, that one can extrapolate from Note 2 of § 2L2.1 that
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probation's finding of 100 documents is tantamount to a finding of
100 aliens. There is also the prospect that the judge was, as
Mendez suggests, attributing the conspiracy-wide harm to Mendez.6
On top of this, we have the confusion caused by the judge
utilizing probation's offense-level calculation (minus the correct
sum total), stating that "the offense involved 100 or more
documents," and indicating that the PSR got it right. (Emphasis
added.) There is also the fact that the record does not make it
irrefutably clear that Mendez did in fact induce or harbor 100
aliens. Notably, probation and the government, though faced with
the same record, disagreed on this point. Indeed to reach the
100-aliens mark, in the government's own words, some
"extrapolating" is required.7
All that being the case, we would be hard pressed to
apply the oft-invoked maxims that the government emphasizes here.
6 To support this notion, Mendez points to the government's
sentencing memorandum, which sometimes conflated Mendez's
individual culpability with that of the overall conspiracy. For
example, it stated a couple of times that enhancements on Counts
1 and 2 were warranted because "the conspiracy involved over 100
documents and aliens." (Emphasis added.)
7 The extrapolating the government focuses on is extending the
proffered amount of documents and identities out over the lifetime
of the conspiracy. But it seems to us there is another issue.
The record reveals that individual aliens sometimes received more
than one document for the same identity, and even those documents
sometimes had to be replaced with additional documents. Without
specific findings by the sentencing judge, this makes it impossible
for us to conclude on the record that one document, or one document
set, equals one alien harbored or induced.
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Yes, it is true that a "court's reasoning can often be inferred by
comparing what was argued by the parties or contained in the pre-
sentence report with what the judge did." United States v.
Rodríguez, 731 F.3d 20, 28 (1st Cir. 2013). And indeed, the law
"does not require a district court to be precise to the point of
pedantry." United States v. Fernández-Cabrera,
625 F.3d 48, 53
(1st Cir. 2010). But this only takes us so far and invoking these
axioms here would effectively render our review meaningless.
"[I]n the end we must be able to figure out what [the court] found
and the basis for the findings to the extent necessary to permit
effective appellate review." United States v. Zehrung,
714 F.3d
628, 632 (1st Cir. 2013) (citation omitted). We cannot do that
here and, therefore, are unable to effectively consider even the
first prong of plain error review.
CONCLUSION
Let us be perfectly clear. We recognize that "the plain
error hurdle is high," United States v. Hunnewell, 891 F.2d 955,
956 (1st Cir. 1989), and the administration of justice has been
well-served over the years by our strict enforcement of this
standard. Here, however, the inscrutable footing on which the
district court's sizeable enhancement stands thwarts our ability
even to conduct plain error review. We caution then that this
decision should not be read as a relaxation of the plain error
standard but, rather, as a reminder to sentencing courts that,
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where the basis for an enhancement is neither obvious nor
inferable, some explanation should normally be forthcoming.
For the reasons laid out above, we vacate the sentence
and remand to the district court for resentencing consistent with
this opinion. We do not take a stance on what the sentence should
be, or whether a document-based or alien-based enhancement (or
neither) is warranted. That is, within wide limits, up to the
sentencing judge. We leave untouched Mendez's claims that his
sentence was substantively unreasonable, and that the judge failed
to adequately explain his top-of-the-range sentence, as these
claims are inevitably tied to the enhancement the judge tacked on
and, therefore, subject to change on resentencing.
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