United States v. Rivera-Ruiz

43 F.4th 172

UNITED STATES of America, Appellee,

v.Luis RIVERA-RUIZ, Defendant, Appellant.

No. 19-1992

United States Court of Appeals, First Circuit.

August 4, 2022

José Luis Novas-Debién for appellant.

Alix Cohen, Assistant United States Attorney, with W. Stephen Muldrow, United States Attorney, Mariana E. Bauzá-Almonte, Assistant United States Attorney, Chief, Appellate Division, and Francisco A. Besosa-Martínez, Assistant United States Attorney, on brief, for appellee.

Before Thompson, Howard, and Kayatta, Circuit Judges.

HOWARD, Circuit Judge.

Defendant-Appellant Luis Rivera-Ruiz, a former police officer with the Puerto Rico Police Department ("PRPD"), pleaded guilty to one count of racketeering in violation of 18 U.S.C. § 1962(c). Rivera's conviction was based on his involvement with a corrupt group of PRPD officers who habitually stole money from the subjects of traffic stops and narcotics investigations, among other abuses. Rivera now challenges the procedural and substantive reasonableness of his upwardly variant sentence of 60 months. After careful review, we agree with Rivera that the sentencing court procedurally erred by basing his variant sentence, in part, upon several unadjudicated administrative complaints filed against Rivera during his career as an officer. Accordingly, we vacate Rivera's sentence and remand for resentencing.

I. BACKGROUND¹

In July 2018, a federal grand jury returned a 24-count indictment against Rivera and six other PRPD officers assigned to the Caguas Drug Unit ("CDU") between 2014 and 2018. The CDU is a division within the PRPD responsible for investigating narcotics-related offenses, including drug and firearm trafficking, gambling, prostitution, and other crimes. The first count of the indictment charged Rivera and his co-defendants with substantive violations of the Racketeer Influenced and Corrupt Organizations Act ("RICO"), under 18 U.S.C. § 1962(c).² It alleged that these officers betrayed the legitimate purpose of the CDU in order to enrich themselves through extorting and robbing persons subject to detainments and traffic stops, and by falsifying affidavits and reports to conceal their misdeeds. More specifically, the RICO count alleged that, during this four-year timeframe, Rivera and his co-defendants knowingly and unlawfully participated directly and indirectly in the conduct of the CDU's affairs through a pattern of racketeering activity by committing 20 enumerated racketeering acts involving extortion, extortion conspiracy, and drug-trafficking crimes. Rivera was alleged to have directly participated in only two of these predicate acts involving extortion conspiracy occurring in 2016.³

In March 2019, Rivera pleaded guilty to the RICO count pursuant to a Rule 11(c)(1)(B) plea agreement, in which he admitted to participating directly and indirectly in the 20 underlying racketeering acts charged in the indictment. The plea agreement identified Rivera's base offense level as 19, under U.S.S.G. § 2E1.1(a)(1), and his adjusted offense level as 18, which was calculated by adding two levels for abuse of a position of trust, under § 3B1.3,

of responsibility, under § 3E1.1. The parties further stipulated that neither would seek any additional guideline adjustments and that they would each respectively request a sentence at the low and high ends of the 27-to-33-month Guideline Sentencing Range ("GSR"), which assumed a criminal history category of one. The parties further agreed to the accuracy of an attached and incorporated stipulation of facts, which provided that Rivera "violated the legitimate purposes of the CDU in order to enrich himself through illegal conduct, including extortion," and went on to detail Rivera's participation in the two acts of extortion in which he was directly implicated. Specifically, Rivera stipulated that he and other CDU officers took money from traffic-stop subjects on both occasions and failed to disclose the seizures in police reports. The stipulation of facts further provided that Rivera "acknowledges that he abused his position of trust at the CDU in a manner that significantly facilitated the commission of the offense enumerated in [the RICO count]" and that the government would be able to prove him guilty if they proceeded to trial. It did not limit the facts the government would be able to prove, nor stipulate that Rivera was responsible for only the two predicate acts specifically identified.

Prior to sentencing, the probation officer prepared a PSR that calculated Rivera's GSR as 27-to-33 months, consistent with the plea agreement's calculations, and discussed Rivera's personal background and offense conduct. The offense conduct described in greater detail all 20 racketeering acts alleged in the indictment, including information gleaned from investigative reports and, as to the acts of extortion conspiracy, the approximate amount of money stolen. In the section discussing Rivera's employment record, the PSR detailed several awards and achievements Rivera had received during his 25-year career with the PRPD, such as awards for the "Medal of Courage" and "Agent of the Year." It also listed ten administrative "complaints/investigations" that were filed against Rivera between 1990 and 2015. Specifically, the PSR summarized "official documents from the Superintendencia Auxiliar en Responsabilidad Profesional" ("SARP"), which is a unit within the PRPD currently responsible for investigating and evaluating all allegations of improper conduct by PRPD employees, including administrative complaints. See P.R. Regs. Policia Reg. 8841 art. VI(40), XVIII (Nov. 2016), repealing Reg. 6506 (Aug. 2002).⁴ For each complaint, the PSR

the date it was filed, and briefly described the general nature of the accusation, i.e., "accident with official vehicle," "threats with duty firearm," "negligence," "assault," "use of excessive force," "immoral conduct," and four separate complaints for "illegal search."

For eight of these entries, including two of the "illegal search" complaints, the only other information provided was: "The circumstances of this complaint are unknown." For the third "illegal search" complaint, filed in 2013, the PSR detailed that Rivera had admitted that he lied about the circumstances of a warrantless search, which was determined to be unlawful. It further provided that Rivera had been "determined to be at fault" and received a five-month suspension for violating several PRPD rules and policies, including "making false statements" and "misuse or abuse of authority, specifically, illegal or unreasonable search and seizures." For the fourth "illegal search" complaint, filed in 2015, the PSR stated that Rivera was found not responsible and exonerated. Rivera did not object to any portion of the PSR.

In September 2019, Rivera was sentenced to 60 months imprisonment. At his sentencing hearing, Rivera argued that a 27-month sentence was warranted because his offense of conviction was an "isolated" transgression, driven by "opportunistic" motives, in an otherwise "admirable career." In response to this argument and in support of its recommendation of a 33-month sentence, the government noted that, although it was "only able to charge [Rivera] with two racketeering acts," it had additional information undercutting Rivera's assertion that his "transgressions" as a police officer were limited to those two acts. Specifically, the government made three points. First, it noted that cooperating witnesses had said that Rivera "had stolen money on many occasions" and that local drug dealers were like "his ATM[s]," i.e., "when [Rivera] wanted cash, he would come and rob them of their cash." It went on to identify two specific occasions in which Rivera had (i) accompanied another corrupt police officer to meet with a drug dealer for the purpose of disclosing the identity of an informant who was later murdered, and (ii) "struck an [arrestee] while he was handcuffed." The government prefaced its proffer by stating that it was merely addressing Rivera's arguments and that "nothing ... should be interpreted as a request to have this Court sentence [Rivera] above ... 33 months," later reiterating this same qualification. Rivera objected to the government's attempt to introduce these additional facts, which were not stipulated to in the plea agreement or provided during discovery. He did not, however, contend that the government's proffer itself constituted a breach of the plea agreement. The district court ultimately sustained the objection and stated three times that it would not consider these additional points.

In fixing Rivera's sentence, the sentencing court determined that the properly calculated 27-to-33 month GSR only "partially" considered the "nature and circumstances" of Rivera's offense and was not "adequate" in this case. In explaining its basis for the upward variance, the district court described at length the structure of the criminal enterprise and its means of operating, focusing on Rivera's acts of extortion conspiracy, but also noting that he had admitted to participating directly and indirectly in the broader conduct of the enterprise. The court found that, by "lying blatantly to judges that were issuing warrants" and by submitting false reports, the enterprise made a "mockery of the judicial system" and "discredited" the PRPD.

The district court then considered the sentencing factors enumerated in 18 U.S.C. § 3553(a). Along with reciting some details of Rivera's personal and family history and noting his prior record of no convictions, the district court discussed the administrative complaints cited in the PSR:

This defendant has some administrative complaints. And if you look at what were the administrative complaints for the year 2013, many of those involved and were related to illegal searches, which is consistent with the information of the charges. Though I'm not making any conclusory determinations as to -- this is just pointing to

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