United States v. Rosa-Borges

101 F.4th 66

UNITED STATES, Appellee, v. Reynaldo ROSA-BORGES, Defendant, Appellant.

No. 22-1195

No. 22-1218

United States Court of Appeals, First Circuit

April 26, 2024

APPEAL 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 Eric Alexander Vos, Federal Public Defender, District of Puerto Rico, Héctor L. Ramos-Vega, Interim Federal Public Defender, District of Puerto Rico, and Franco L. Pérez-Redondo, Assistant Federal Public Defender, Supervisor, Appeals Section, were on brief, for appellant.

David C. Bornstein, Assistant United States Attorney, with whom W. Stephen Muldrow, United States Attorney, and Mariana E. Bauzá-Almonte, Assistant United States Attorney, Chief, Appellate Division, were on brief, for appellee.

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

RIKELMAN, Circuit Judge.

In this set of appeals, Reynaldo Rosa-Borges challenges two sentencing decisions by the district court: a seventy-two-month sentence following his guilty plea for unlawful firearm possession under 18 U.S.C. § 922(g)(1) and a thirty-six-month sentence for violating the terms of his supervised release for a previous conviction with this new unlawful conduct.¹ Because the district court imposed both sentences based on factual findings derived from unreliable hearsay, we vacate and remand for Rosa's resentencing.

I. BACKGROUND

We begin with the critical facts, drawn from "the uncontested parts of the probation officer's presentence investigation report (PSR), the plea agreement, and the transcript[s] of the sentencing [and revocation] hearing[s]." United States v. Colón-Cordero, 91 F.4th 41, 45 (1st Cir. 2024).

A. Rosa's Arrests in 2014 and 2021

In December 2014, Puerto Rico police officers observed Rosa "engaging in what appeared to be a drug transaction." The officers searched Rosa and found a Glock pistol, marijuana, and various controlled medications. Rosa was subsequently charged with, and pleaded guilty to, carrying a firearm in furtherance of a drug trafficking crime in violation of 18 U.S.C. § 924(c). The district court sentenced him to five years' imprisonment and five years' supervised release. Rosa was released from prison in May 2019, at which point his five-year term of supervised release began to run.

On March 29, 2021, while Rosa was still on supervised release, he had another run-in with the police. Police officers were patrolling a beach in Yabucoa, Puerto Rico, after learning about a drug shipment scheduled to land that evening. The officers saw Rosa sitting in the back of a sports utility vehicle ("SUV") alongside another man, Ángel Luis Santiago-Dávila ("Santiago"). The SUV, which belonged to Santiago, was parked on the beach with the trunk facing the ocean. The two men sat beneath the open trunk door.

The officers approached Rosa and Santiago. During a conversation in which Santiago explained that he and Rosa had come to the beach to snorkel, the officers saw a firearm in the SUV's trunk. They subsequently detained both men and seized from the car a loaded "7.62 caliber Norinco AK-47 type rifle-style pistol," "an ammunition magazine containing 30 rounds of 7.62 caliber ammunition," two bags of marijuana, and three cellular phones.

The following day, March 30, officers searched Rosa's aunt's home, where Rosa lived. The search yielded two rifle magazines loaded with fifty-nine rounds of 7.62 caliber ammunition, collectively, and forty-one loose rounds of identical ammunition (100 rounds total). Rosa's brother, Naim, was at the property when the agents arrived to execute the search warrant. In a sworn statement obtained by the police later that day, Naim said:

[O]n March 30, 2021, [I] received a telephone call at around midnight from my brother Reynaldo Rosa telling me that if anything happens to him to go to the house, since I don't live there, to take out a green bucket from the bedroom[.] After that, I received a call from him at around 3AM telling me that he was under arrest at the Las Piedras command. I went to his residence to look for the bucket with no knowledge of what was inside. I picked it up and went to my home. When I got home, I opened the bucket to see what was inside and in it I found a black bag with what seemed to be a firearm. I didn't proceed to open the bag[.] I put everything away, bag and all, in a small safe with some boxes of ammo that were inside the bucket. I proceeded to put it away in the safe with the boxes of ammo and some individual pouches of marihuana, since I was nervous and didn't know what to do with it. Inside the green bucket there was also an open bag full of marihuana. Nervous, I went to his house to leave the bucket over there so I don't have that in my house. There was a lot of marihuana and I'm not [the type of] person that deals with these things, since I don't have anything to do with this, I don't consume it or anything. When I got to the house, without getting out of the vehicle, the agents arrived and read me the warnings to proceed in getting out of the vehicle. Nervous because of what was happening I got out and they gave me the search warrant. I told the agents that I don't live in that residence. I also let them know what I have in the vehicle and in my house without any fear since I know, and I let them know that it isn't mine and that I had no knowledge of what was in the house and that I don't live there. They proceeded with the search in my presence. I also told them that I was in the residence during morning hours. I want to be clear that none of this nor whatever was seized in the house. It's not mine. It belongs to the one who resides in the house, Reynaldo Rosa[-]Borges. I have nothing to do with what was seized over there since I'm a responsible person dedicated to my studies and work. I also state that I'm willing to cooperate in anything that's necessary.

In short order, Rosa's probation officer notified the court that Rosa had violated the conditions of his supervised release by possessing the gun and ammunition on March 29 and 30. In May, Rosa appeared before a magistrate judge for a preliminary revocation hearing to determine whether there was probable cause to believe that he had violated the conditions of his supervised release. See Fed. R. Crim. P. 32.1(b)(1)(A).

Rosa argued at the preliminary revocation hearing that Naim's statement attributing possession of the 100 rounds of ammunition to him was unreliable, hinting that Naim was seeking to avoid his own criminal liability. He also pointed to inconsistencies between Naim's statement and the government's account. For example, the government insisted that Naim's bucket had been "empty" when he returned to Rosa's residence, which contradicted Naim's own sworn statement that he returned to the house with the bucket because it contained an "open bag full of marihuana" that he did not want in his own home. Separately, the government suggested that Naim consented to a search of his own house and directed the police toward the firearm and ammunition in his safe. But the government did not provide any documentation to support this assertion, and it was ultimately never explained if the items in Naim's safe were counted as part of what was seized "at" Rosa's aunt's house. Although the magistrate judge expressed confusion about these competing accounts of the March 30 search, she nonetheless found probable cause to believe that Rosa had violated the conditions of his supervised release and referred him to a final revocation hearing.

One month later, on June 3, 2021, a grand jury indicted Rosa for being a felon in possession of a gun in violation of 18 U.S.C. § 922(g)(1).

B. The Plea Agreement

Rosa pleaded guilty to Count Two of the indictment, which charged that:

On or about March 29 and 30, 2021, in the District of Puerto Rico and within the jurisdiction of this Court, the defendant, REYNALDO ROSA-BORGES, knowing he had been convicted of a crime punishable by imprisonment for a term exceeding one year, did knowingly possess a firearm and ammunition -- to wit: a 7.62 caliber Norinco rifle-style pistol . . . loaded with a bullet in the chamber and an ammunition magazine containing 30 rounds of 7.62 caliber ammunition, an ammunition magazine loaded with 25 rounds of 7.62 caliber ammunition, an ammunition magazine loaded with 34 rounds of 7.62 caliber ammunition, and 41 rounds of 7.62 caliber ammunition -- said firearm having been shipped and transported in interstate and foreign commerce.

The plea agreement included this charge in full. Under its terms, the government and Rosa agreed to "recommend imprisonment within the low to middle of the applicable [United States Sentencing] Guidelines range." The parties also agreed that a recommendation above or below this range would constitute a material breach of the plea agreement.

The plea agreement also incorporated a stipulation of facts, which both parties agreed were "accurate in every respect." The stipulation described the events of March 29, 2021, when Rosa and Santiago were spotted by officers on the beach. Rosa admitted to "knowingly possess[ing]" the rifle-style pistol in the trunk and the magazine that contained thirty rounds of ammunition.

The stipulation did not include, however, any reference to the search of Rosa's residence on March 30 nor to the additional 100 rounds of ammunition seized that day. The government agreed to this omission at Rosa's request but emailed Rosa to note that "accommodating [his] request . . . should not be taken as a concession from the government that the [information] was incorrect." "Moreover," the government explained via email, "in sentencing the defendant, the [d]istrict [c]ourt could consider the events of March 30, 2021."

At the change-of-plea hearing, the district court read the charge in the plea agreement to Rosa. Rosa interjected to explain that although he "ha[d] no contest . ....