United States v. Mojica-Ramos

103 F.4th 844

UNITED STATES of America, Appellee, v. Yavier MOJICA-RAMOS, Defendant, Appellant.

No. 22-1204

No. 22-1205

United States Court of Appeals, First Circuit

June 6, 2024

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

Kevin E. Lerman, Research & Writing Attorney, with whom Héctor L. Ramos-Vega, Interim Federal Public Defender, Eric Alexander Vos, Federal Public Defender, and Franco L. Pérez-Redondo were on brief, for appellant.

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

Before Montecalvo, Hamilton,^* and Rikelman Circuit Judges.

MONTECALVO, Circuit Judge.

In July 2021, defendant-appellant Yavier Mojica-Ramos ("Mojica") entered into a plea agreement under which he promised to plead guilty to unlawfully possessing two machineguns in violation of 18 U.S.C. § 922(o) while he was serving a five-year term of federal supervised release. For its part, the government agreed to recommend a within-guidelines sentence for the § 922(o) charge.

Despite the parties' recommendations, the district court ultimately imposed two upwardly variant sentences: (1) a seventy-two-month sentence for Mojica's § 922(o) charge and (2) a sixty-month statutory maximum revocation sentence to run consecutively to Mojica's § 922(o) sentence.

For the reasons below, we find that the prosecutor's sentencing advocacy did not conform to the most meticulous standards of performance required by Mojica's entrance into the plea agreement. To remedy the prosecutorial breach, we must vacate Mojica's § 922(o) and revocation sentences, and we remand the underlying cases for resentencing before a different judge.

I. Background¹

In May 2018, Mojica began a five-year term of supervised release after serving a five-year sentence for possession of a firearm in furtherance of drug trafficking, a felony under 18 U.S.C. § 924(c)(1).

On October 23, 2020, undercover Puerto Rico Police Bureau officers were monitoring for violations of a COVID-19 executive order that required wearing facemasks in public places. The officers saw Mojica walk into a hair salon without donning a facemask and called for backup. Multiple officers and a firearm-sniffing dog arrived at the salon, and the dog positively alerted to a shoulder bag that the officers saw Mojica carrying. The officers searched the bag and discovered two Glock pistols that had been modified to be machineguns, sixty-two rounds of ammunition, a plastic bag containing marijuana, and a white oval pill.

On July 28, 2021, Mojica signed a plea agreement under which he promised to plead guilty to unlawful possession of the two modified machineguns in violation of 18 U.S.C. § 922(o). The plea agreement required the parties to request a sentence within the guidelines range after Mojica's criminal history category ("CHC") was confirmed. The guidelines range for the § 922(o) charge was later calculated without dispute as thirty-seven to forty-six months based on Mojica's CHC category of III. One week later, on August 5, 2021, Mojica pled guilty to the § 922(o) charge.

A. The Government's Sentencing Memorandum

Before Mojica's sentencing for the § 922(o) charge, the government filed its sentencing memorandum requesting an upper-end guidelines sentence of forty-six months. Notably, the government attached approximately 250 photos and a video extracted from Mojica's cellphone as support for its sentencing request. The photos depicted numerous firearms and large quantities of drugs, and the video allegedly showed "an individual resembling [Mojica] . . . recklessly brandishing an assault-style rifle by repeatedly pointing the barrel at the individual who is recording the video."

The government summarized that these photos and the video "are additional evidence that [Mojica] has an interest in, and likely participates in, other criminal behavior beyond the machinegun count charged." Relying on this "alarming content," the government called Mojica "an individual with a penchant for high-capacity firearms, drugs, and criminal activity." Likewise, it labeled Mojica as having an "affinity for high-capacity firearms" and an "apparent infatuation with firearms." The government then urged the court to consider the cellphone content as "additional information" on Mojica's criminal tendencies at sentencing.

The government's sentencing memorandum also elaborated on the dangerousness of machineguns and its belief that the images from Mojica's phone "suggest" his "participat[ion] in other criminal activity involving high-capacity, high-powered weapons of war." The government specifically stated that "[t]he danger to the community and the serious nature of the offense should be considered exceptional in this case." Furthermore, the government highlighted high rates of gun violence in Puerto Rico, the purported deterrent effect of lengthy sentences for gun offenders, and the "particularly strong" need to protect the public from Mojica.

B. Mojica's Motion to Compel Specific Performance

In response to the government's sentencing memorandum, Mojica filed a motion to compel specific performance of the plea agreement. Mojica alleged that the government breached the plea agreement by impliedly advocating for an upwardly variant sentence through its sentencing memorandum, and he requested that the court order specific performance and transfer the case to another judge for sentencing. The government opposed the motion to compel, arguing that it was required "to share with the [c]ourt information relevant to the imposition of a sentence," and highlighted the need to "contextualize[ ] the offense to which [Mojica] recently pleaded guilty."

After the motion to compel was fully briefed, the district court issued an opinion and order denying Mojica's motion. The court rejected Mojica's contention that the government had "no . . . obligation" to provide the court with his cellphone content. The court also agreed with the government that the photos and video demonstrated Mojica's "affinity for the unlawful possession of firearms and controlled substances," which "suggests a lack of respect for the law and a threat to public safety." Furthermore, the court concluded that the government had no duty to authenticate the images before submitting them as part of its sentencing memorandum. Lastly, the court did not find the government's references to the case being "exceptional" to be violative of the plea agreement.

Mojica filed a motion for reconsideration, which the court denied on largely the same grounds. But unlike in its initial order denying the motion to compel, the court's order on reconsideration suggested its acceptance of the cellphone images as bearing sufficient indicia of reliability. The court validated the "inference" that Mojica saved the images on his phone, as "[t]his evidence did not spontaneously appear on his device," and concluded that he "does, indeed, have an affinity for firearms." Moreover, because Mojica pled guilty to the machinegun possession charge, the court adopted the government's position that "it logically follows that the nature of Mojica's affinity for firearms is insidious."

C. The § 922(o) Sentencing Hearing

On February 28, 2022, the court held a sentencing hearing for the § 922(o) charge. Mojica's counsel detailed the pertinent mitigating factors and requested a thirty-seven-month sentence, the bottom of the guidelines range.

After Mojica's counsel advocated for a thirty-seven-month sentence, the government stated that it "stand[s] by its recommendation made in the plea agreement," and noted that it "is entitled to request a sentence at the upper end" of the guidelines range. The government then formally requested a top-of-guidelines sentence of forty-six months. Immediately thereafter, the government discussed how Mojica's offense was "part of a broader problem here in Puerto Rico where, frankly speaking, armed violent crime is a disease." The government cited statistics of exceptionally high murder rates in Puerto Rico, and it specifically commented that Mojica's recidivism and "possession of loaded machine guns" constituted "an even bigger part of the problem" than the possession of firearms generally. The government concluded its argument by reiterating its request for a forty-six-month sentence.

In issuing the sentence, the court rejected the parties' recommendations for a guidelines sentence and imposed an upwardly variant seventy-two-month sentence.² Mojica's counsel objected to the sentence as procedurally and substantively unreasonable. And in particular, he incorporated by reference Mojica's prior objection to prosecutorial breach raised in his motion to compel specific performance.

D. The Revocation Sentencing

Immediately following the § 922(o) sentencing, the district court held a supervised release revocation hearing and issued Mojica's revocation sentence. The guidelines range for the revocation sentence was calculated without dispute as twenty-four to thirty months. Mojica's counsel requested a twenty-four-month sentence to run concurrently with the seventy-two-month § 922(o) sentence. The government reiterated the dangerousness of machineguns and Mojica's "callousness for the rules," requesting a thirty-month consecutive revocation sentence.

The court revoked Mojica's supervised release and reexplained the offense conduct. Before issuing the sixty-month statutory maximum revocation sentence, the court cited "the seriousness of the violations," Mojica's lack of "respect for the law," Mojica's failure to "perform[ ] pro-social activities that could have had a positive impact on his rehabilitation," and how "the original sentence did not serve the objective of punishment or deterrence" as the bases...