United States v. Colon-Cordero

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UNITED STATES OF AMERICA, Appellee, v. LUIS ANGEL COLON-CORDERO, a/k/a Luis El Loco, a/k/a El Loco, Defendant, Appellant.

Nos. 22-1171, 22-1172

United States Court of Appeals, First Circuit

January 19, 2024

APPEALS FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF PUERTO RICO [Hon. Francisco A. Besosa, U.S District Judge]

Alejandra Bird-Lopez, Research and Writing Attorney, with whom Eric Alexander Vos, Federal Public Defender, and Franco L. Perez-Redondo, Assistant Federal Public Defender Supervisor, Appeals Section, were on brief, for appellant.

Julia M. Meconiates, Assistant United States Attorney, with whom W. Stephen Muldrow, United States Attorney, and Mariana E. Bauza-Almonte, Assistant United States Attorney, Chief, Appellate Division, were on brief, for appellee.

Before Rikelman, Lipez, and Thompson, Circuit Judges.

THOMPSON, CIRCUIT JUDGE.

When authorities picked up Luis Angel Colon-Cordero (Colon) for violating some terms of his supervised release, they found evidence of other violations as well as evidence of new criminal conduct. And so, another in a long line of examples of folks slipping into a criminal-justicesystem spin cycle, Colon found himself back in court for sentencing hearings regarding the new criminal case against him and revocation of his supervised release. The parties agreed to request within-guidelines sentences, but the district court, not bound by the parties' recommendations, imposed an upwardly variant sentence of imprisonment for the new criminal conduct and a tip-top-of-the-guidelines-range term of imprisonment for violating his supervised release, with those sentences to run consecutively. On appeal, Colon raises a number of arguments challenging the pronounced sentences as unreasonable. For reasons we'll explain, we vacate and remand for resentencing.

BACKGROUND

We begin with the relevant facts and travel, providing the bulk of the particulars now (bear with us) with plans to add some more detail later as needed. As usual when a sentencing appeal follows a plea of guilty, we draw the facts from the uncontested parts of the probation office's presentence investigation report (PSR), the plea agreement, and the transcript of the sentencing hearing. See United States v. Morales-Cortijo, 65 F.4th 30, 32 (1st Cir. 2023).

Colon's History, Supervised Release Term, Violations, and New Criminal Case

Back in 2017, Colon pleaded guilty to conspiracy to possess with intent to distribute controlled substances in violation of 21 U.S.C. § 846, and he was sentenced to 45 months and 19 days of imprisonment and 8 years of supervised release. Colon discharged that term of immurement and was released in 2019, and from there he began his term of supervised release.

Now, it is undisputed that Colon is a person with an intellectual disability, and, as the record makes pellucid, he has a history of mental health issues. Some examples: a school referral prompted him to see a mental health specialist when he was 15; he heated a car antenna, then used it to burn his forehead and under his eyes; he has used cigarettes to burn his forearms and blades to cut himself; and he has visible scars from his selfinflicted burning and cutting. And, as of his 2017 plea, a then-25-year-old Colon had a history of substance abuse, including smoking marijuana (25 joints a day) since he was 18, and, at the same age, developing a use of non-prescription Xanax, Percocet, and Klonopin (one or two pills daily), plus occasionally mixing some of this drug use with alcohol.

And so, as part of his August 2019 supervised release, Colon was referred to substance abuse and mental health treatment. The mental health treatment to which Colon was later referred in January 2020 screeched to a halt with the advent of the global COVID-19 pandemic and its resulting lockdowns, but Colon continued his substance abuse treatment, which he reported he liked going to and found helpful. For 14 months during his supervised release term (up until he was arrested, anyway), Colon tested positive to cannabinoids two times out of seventeen tests (more on this later) and failed to report to the drug-testing program once.

Aside from those two positive drug tests, which were violations in and of themselves pursuant to the terms of his release, Colon violated another supervised release condition when he failed to stay at his address of record (his mother's house). After being called out for moving out, Colon returned to his mom's place, but he didn't stay put long: Two days later, probation reported, he'd again moved out without notice. In response, probation successfully requested an arrest warrant, and local authorities searched the place where Colon was thought to be residing. During the search, officers found under Colon's bed a loaded AR-style rifle with 30 rounds of ammunition along with an extra magazine loaded with an additional 30 rounds of ammunition. Colon admitted ownership of the rifle, nonchalantly observing to the officers "that he liked rifles." The search team also found presumptive synthetic marijuana^[1] and rolling paper in his car.

A federal grand jury indicted Colon on a single count of violating 18 U.S.C. § 922, which generally proscribes certain categories of people from possessing firearms or ammunition. Colon waived his preliminary revocation hearing for the supervised release violations and on the new charge pleaded guilty to being a felon in possession of ammunition (60 rounds) pursuant to a plea agreement.^[2]

The parties proposed in the plea agreement an advisory guidelines calculation that started with a base offense level of 22, minus three levels for acceptance of responsibility, and determined a total offense level (TOL) of 19. And the parties also agreed they'd each request a sentence within the to-be-tallied guidelines range for the TOL of 19 when combined with the undetermined Criminal History Category (CHC). The PSR landed on 19 as the TOL, too, then laid out Colon's criminal history, including his Commonwealth-side drug conviction (possessing controlled substances and drug paraphernalia) and the federal drug conviction (conspiracy to possess with intent to distribute narcotics). These tabulations dictated a CHC of IV, and, together with the TOL of 19, yielded a guidelines sentencing range of 46 to 57 months' imprisonment.

Each side then filed a sentencing memorandum in support of its recommended sentence (a low-end 46 months from Colon; a high-end 57 months from the government) in anticipation of the upcoming hearings.

The Sentencing Hearings

Before the district court in February 2022, the first sentencing matter taken up was Colon's new criminal case (the ammunition-possession indictment). Counsel for Colon started with some objections to the PSR, two of which are relevant to today's analysis. First, counsel argued the district court should append to the PSR a psychometric evaluation filed by the expert who'd examined Colon at defense counsel's request and assessed his intellectual disability; the district court agreed to do so. That matter squared away, counsel next argued that because the PSR's drug-use section described Colon's historically heavier use of substances, the PSR impermissibly suggested that during his release period, Colon had been using more than just the marijuana to which he'd twice tested positive. The court signaled in response that it would consider these points in sentencing.

Moving to her argument proper, Colon's counsel offered the following in support of the recommended low-end 46-month sentence.

Stating what those in the sentencing world should take as a given, counsel set the stage by pointing out that the sentencing court must "make[] an individualized assessment . . . of Colon" when pronouncing sentence. To that end, counsel urged Colon's offense was not a violent one -- it was possession only, and his offense could be explained by Colon's intellectual disability, which was a big part of why, counsel explained, "the cards have always been stacked against" Colon. That disability rendered Colon -- who has an IQ equivalent to a third-grade education, is especially susceptible to peer pressure, and cannot read or write -- unable to appreciate the amount of ammunition loaded into the magazines, and his disability also prompted his comment that he likes guns. Drawing on all of this and more, counsel beseeched the court to balance this information against the need to deter and promote respect for the law when crafting an individualized sentence of imprisonment for his non-violent crime.

The government, on the other hand, sought a 57-month term of imprisonment plus a term of supervised release. In support, the government submitted that Colon "needs to take individual responsibility for his actions," part of which would be an acknowledgment that the rifle he possessed while on release wasn't just any gun, it was a "ghost gun" (so called because guns of that variety have no identifying information, such as a serial number) loaded with 30 rounds of ammunition, suggesting he "was ready to use the rifle if he needed it." The government also pointed to Colon's conduct as "part of a broader [drug-use] problem" -- the government cited his use of "approximately 25 marijuana cigarettes per day" as well as "daily" use of Xanax, Percocet, and Klonopin, not to mention his admission to probation that he sometimes mixed prescription drugs and marijuana with alcohol use. And, in the government's telling, Colon didn't have a history of seeking mental health treatment, instead opting to "channel[]" his anxiety and anger into "destructive" activities.

Citing its review of the 18 U.S.C. § 3553(a) factors, PSR sentencing memoranda, and a document the court construed...