United States v. Alvarez-Nunez, No. 15-2127 (1st Cir. 2016)
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Defendant pleaded guilty to a federal indictment charging him with possession of a firearm and ammunition by an unlawful user of a controlled substance and possession of a machine-gun. Before sentencing, the probation department prepared a presentence investigation report (the PSI report) that contained information about Defendant’s participation in a musical group that recorded songs that promote violence and drugs. Defendant objected to the PSI report on the ground that consideration of his performances with the musical group would violate his First Amendment rights. The sentencing court ruled that it could consider Defendant’s musical pursuits in deciding the sentence and then sentenced Defendant to a ninety-six-month term of immurement, which was more than three times the top of the Guidelines Sentencing Range. The First Circuit vacated Defendant’s sentence and remanded for resentencing, holding that the sentencing court’s sentencing rationale was implausible because the court heavily relied on protected conduct that was not tied through extrinsic evidence to any relevant sentencing factor.
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United States Court of Appeals For the First Circuit No. 15-2127 UNITED STATES OF AMERICA, Appellee, v. NEFTALÍ ALVAREZ-NÚÑEZ, Defendant, Appellant. APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF PUERTO RICO [Hon. José Antonio Fusté, U.S. District Judge] Before Thompson, Selya and Kayatta, Circuit Judges. Rafael F. Castro Lang, with whom Edwin Prado Galarza was on brief, for appellant. Mainon A. Schwartz, Assistant United States Attorney, with whom Rosa Emilia Rodríguez-Vélez, United States Attorney, Nelson Pérez-Sosa, Assistant United States Attorney, Chief, Appellate Division, and Francisco A. Besosa-Martínez, Assistant United States Attorney, were on brief, for appellee. July 8, 2016 SELYA, Circuit Judge. In this case, the sentencing court confused the message with the messenger. blur the line and performer between that defendant. the artistic performer's Concluding, as expression state we do, That led the court to of a musical of mind qua criminal that this line-blurring undermined the plausibility of the court's sentencing rationale (and, thus, rendered the sentence substantively unreasonable), we vacate and remand for resentencing. I. BACKGROUND Defendant-appellant Neftalí Alvarez-Núñez was arrested in March of 2015. The arrest took place after police observed him discarding a handgun outside of a bar in Cataño, Puerto Rico. When retrieved and examined, the handgun proved to be loaded, fitted with an extended automatic weapon. magazine, and modified to fire as a fully A subsequent search revealed two other items of interest: the defendant was in possession of a large quantity of ammunition and a half-dozen Percocet tablets, for which he lacked a prescription. The defendant later told investigators that, in addition to being a regular marijuana user, he had been addicted to Percocet, a controlled substance, for roughly two years. In due course, the defendant pleaded guilty to a twocount federal indictment charging him with possession of a firearm and ammunition by an unlawful user of a controlled substance, see 18 U.S.C. § 922(g)(3), and possession of a machinegun, see id. - 2 - § 922(o). a Following the plea, the probation department prepared presentence contained, in investigation its section report on offense (the PSI conduct, information about the defendant's musical pursuits. Report) a that surfeit of Of particular pertinence here, the PSI Report noted that the defendant, under the stage name "Pacho," formed part of a musical group known as "Pacho y Cirilo." The Report further indicated that Pacho y Cirilo was "fairly known" in the locale where the defendant was arrested, including within the Juana Matos Public Housing Project (JMPHP). It went on to state that "[t]he majority of the songs recorded by Pacho y Cirilo promote violence, drugs and the use of weapons and violence" and in "recent years, the JMPHP has been known to be associated with murders, drug sales and smuggling and weapons trafficking." The PSI Report set out a proposed sentencing framework. It grouped the two offenses of conviction, see USSG §3D1.2(d); confirmed that the defendant had no prior adult record and placed him in criminal history category (CHC) I; pegged his base offense level at 20, see id. §2K2.1(a)(4)(B); noted that he had fully accepted responsibility and applied the corresponding three-level downward offense-level adjustment, see id. §3E1.1; and calculated a guideline sentencing range (GSR) of 24 to 30 months (based on a total offense level of 17 and CHC I). - 3 - The PSI Report also suggested a potential reason for imposing a sentence above the GSR: returning to the defendant's musical stylings, the Report rehashed his involvement in Pacho y Cirilo and the group's connection to the JMPHP. In a similar vein, it reiterated the claim that the group's songs "promote violence, drugs and the use of weapons and violence, as . . . can be seen through their videos which are readily available [o]n the internet." The Report included certified translations of two songs performed by Pacho y Cirilo ("Dicen Que Vienen Por Mi" and "Como Grita El Palo"), as well as a certified transcription of a music video ("La Calle Es Pa Hombres").1 Prior to sentencing, the defendant objected to the PSI Report on the ground, inter alia, that consideration of his performances with Pacho y Cirilo would infringe his First Amendment rights. The defendant raised this objection again at the outset of the disposition hearing. The government doubled down, not only resisting objection the defendant's but also introducing at sentencing excerpts from yet another Pacho y Cirilo music video (for the song "Como Grita El Palo"). The district court watched the video and commented that it included rifles and grenade 1 Portions of the first two songs performed by the defendant are reproduced in the appendix to this opinion. Because the record does not specify which portions of "La Calle Es Pa Hombres" the defendant performed, nothing from that work is included in the appendix. - 4 - launchers, along with children. After an extended colloquy, the sentencing court ruled that it could consider the defendant's musical pursuits in crafting the sentence. The court, without objection, adopted the guideline calculations adumbrated in the PSI Report. It then proceeded to impose a 96-month term of immurement — more than three times the top of the GSR. II. This timely appeal followed. ANALYSIS Appellate review of a criminal procedural and substantive dimensions. sentence has both See United States v. Clogston, 662 F.3d 588, 590 (1st Cir. 2011). In both dimensions, we assay the challenged sentence under the abuse of discretion rubric.2 See Gall v. United States, 552 U.S. 38, 51 (2007); United States v. Narváez-Soto, 773 F.3d 282, 285 (1st Cir. 2014). Typically, a reviewing court will address claims of procedural sentencing error substantive unreasonableness. before addressing defendant's 2 claims of claim of See Gall, 552 U.S. at 51; United States v. Martin, 520 F.3d 87, 92 (1st Cir. 2008). the a sentencing error Here, however, are inextricably The government asserts that a more rigorous standard of review should apply because the defendant did not challenge the substantive reasonableness of the sentence below. This assertion elevates hope over reason: the defendant, ably represented, objected both strenuously and repeatedly to the consideration of his protected conduct at sentencing. Those objections sufficiently preserved the claim of error advanced on appeal. - 5 - intertwined and are best captured by looking at the sentence through the prism of substantive reasonableness. We proceed accordingly. The hallmark "of a reasonable sentence is a plausible sentencing rationale and a defensible result." at 96. Martin, 520 F.3d And when — as in this case — the sentencing court has varied substantially from the GSR, its stated justifications for the sentence must be correspondingly more compelling. See Gall, 552 U.S. at 50. In the case at hand, the defendant contends that the district court's unbridled use of the lyrics he performed with Pacho y Cirilo and the music videos violated his First Amendment rights, undermined the legitimacy of the court's sentencing rationale, and rendered his sentence substantively unreasonable. We approach this contention with a degree of circumspection. As a general matter, "the sentencing authority has always been free to consider a wide range of relevant Tennessee, 501 U.S. 808, 820-21 (1991). material." Payne v. This freedom allows "an inquiry broad in scope, largely unlimited either as to the kind of information [the sentencing court] may consider, or the source from which it may come." United States v. Tucker, 404 U.S. 443, 446 (1972). In keeping with these broad boundaries, the Supreme Court has held "that the Constitution does not erect a per se - 6 - barrier to the admission of evidence concerning one's beliefs and associations at sentencing simply because those beliefs associations are protected by the First Amendment." Delaware, 503 U.S. 159, 165 (1992). and Dawson v. At the same time, though, "a defendant's abstract beliefs, however obnoxious to most people, may not be taken into consideration by a sentencing judge." Wisconsin v. Mitchell, 508 U.S. 476, 485 (1993). The upshot is that conduct protected by the First Amendment may be considered in imposing sentence only to the extent that it is relevant to the issues in a sentencing proceeding. See Dawson, 503 U.S. at 164; United States v. Stewart, 686 F.3d 156, 167 & n.10 (2d Cir. 2012). Given the kaleidoscopic array of factors ordinarily in play at sentencing, see 18 U.S.C. § 3553(a), protected conduct may be relevant in a multiplicity of ways. For instance, it may legitimately be used to rebut mitigating evidence proffered by the defendant. See Dawson, 503 U.S. at 167-68; United States v. Kane, 452 F.3d 140, 143 (2d Cir. 2006) (per curiam). So, too, it may be used to evaluate the degree of the defendant's remorse, see Stewart, 686 F.3d at 167, the likelihood of reoffending, see United States v. Simkanin, 420 F.3d 397, 417-18 (5th Cir. 2005), or the extent of punishment needed for deterrence, see United States v. DeChristopher, 695 F.3d 1082, 1099 (10th Cir. 2012). But any such connection must be established, not merely assumed, in the context of the particular case. Where protected conduct has no bearing on - 7 - either the crime committed or on any of the relevant sentencing factors, consideration of that conduct infringes a defendant's First Amendment rights. Dawson examined the See Dawson, 503 U.S. at 168. illustrates admission at this point. sentencing There, in a the Court murder case of a statement about the racist beliefs of the Aryan Brotherhood, of which the defendant was a member. See id. at 162. The Court concluded that, in the absence of evidence linking the statement to some issue in the case (say, that the Aryan Brotherhood was "associated with drugs and violent escape attempts at prisons" or "advocate[d] the murder of fellow inmates"), the statement was "totally without relevance to [the] sentencing proceeding." at 165. Id. After all, it did not actually connect the defendant's membership defendant's in the group personal to any aspect characteristics, defendant's mitigating evidence. of nor the did crime it or the rebut the See id. at 166-68. The government submits that, under the Dawson standard, the district court's reliance on the lyrics and music videos as part of its sentencing rationale passes muster. On its account, the lyrics and music videos "promote[] the use of drugs, violence, and weapons" and, thus, implicate a slew of sentencing factors. These include the nature and circumstances of the offense, the defendant's personal history and characteristics, his motive for possessing a machinegun, the need for deterrence, and respect for - 8 - the law. Relatedly, it suggests that the lyrics and music videos contradicted one of the defendant's asserted justifications for a more lenient sentence: that he possessed the weapon merely for self-defense. The government's arguments track the district court's approach to the protected conduct. "you cannot sentence somebody The court acknowledged that because he's a musician," but nevertheless concluded that "the lyrics of this music confirm . . . this individual's involvement with firearms, with violence, with murders, in the context of a community like the [JMPHP]," particularly given that the housing project is "known as a no man's zone" where drug trafficking and murders take place. The court later described the lyrics and music videos as bearing on the need for deterrence because they comprised "written and visual confirmation" of the defendant's "inclination as to violence, his liking to violence." The court reasoned that these materials provided "objective evidence that lets you reach the conclusion that this [crime] was not a mistake that [the defendant] committed one day . . . . [T]his is an individual who makes a life . . . not only carrying this kind of firearm, but also preaching . . . the benefits of having this kind of firearm, the use you can give to them, expressing how you kill people, expressing how you don't care about human life." Finally, the court posited that the lyrics and music videos were "the only way to tie the possession of that - 9 - gun with the [defendant's] intentions and what he has in his mind regarding that gun," so that the content of the songs called for a "[m]ajor deterrent sentence." Implicit in this rationale is the assumption that the lyrics and music videos accurately reflect the defendant's motive, state of mind, personal characteristics, and the like. But this assumption ignores the fact that much artistic expression, by its very nature, has an ambiguous relationship to the performer's personal views.3 That an actress plays Lady Macbeth, or a folk singer croons "Down in the Willow Garden," or an artist paints "Judith Beheading Holofernes," does not, without more, provide any objective evidence of the performer's motive for committing a crime, of his personal characteristics (beyond his ability to act, sing, or paint, as the case may be), or of any other sentencing factor. This is not to say that a defendant can prevent a sentencing court's consideration of his words or conduct simply by couching those words or conduct in artistic form. Evidence extrinsic to the protected words or conduct may make clear that a performance or artistic work speaks to a defendant's motive, state of mind, or some other attribute in a way that is relevant to 3 At sentencing, the district court could not treat the defendant as more than a performer of the songs at issue here. The record is devoid of any evidence that the defendant composed the lyrics that were called to the court's attention. - 10 - sentencing. In the absence of such extrinsic evidence, the mere fact that a defendant's crime happens to resemble some feature of his prior artistic expression cannot, by itself, establish the relevance of that expression to sentencing. Evidence conspicuously that an case. Nothing inference is record had any direct application either to the defendant or to his lifestyle. Nor is the this such the that in support in indicates lacking might lyrics or music videos there any basis for a claim that they are unlawful in any respect. By like token, there is no hint that the defendant had any prior involvement with illegal firearms, much less with violence or murder. The government did not so much as attempt to prove any uncharged conduct, nor did the district court make any findings about the defendant's involvement in any other criminal activity. To the contrary, the PSI Report — accepted in this regard both by the government and the district court — confirms that, at age 34, the defendant had no adult criminal history. The district court's conclusions — that the lyrics and music videos comprised "objective evidence . . . that this [crime] was not a mistake," that they reflected that the defendant had a history of involvement "with firearms, with violence, [and] with murders," and that they made it likely that the defendant possessed the gun for nefarious purposes — thus rested entirely on naked inferences drawn from the content of the lyrics and music videos. - 11 - The record makes manifest that those inferences were drawn without any extrinsic evidence that the lyrics and music videos reflected anything other than performances akin to an actor inhabiting a role. Appraising the district court's reasoning in this light throws into bold relief the differences between this case and the instances where protected conduct has been found to have been properly considered at sentencing. In such cases, there is typically no question but that the views expressed through the protected conduct — say, statements to the media, see United States v. Serrapio, 754 F.3d 1312, 1322-23 (11th Cir. 2014); Stewart, 686 F.3d at 164-65, how-to books authored by a defendant, see Kane, 452 F.3d at 142, or a defendant's advocacy for flouting the law, see Simkanin, 420 F.3d at 417-18 — accurately reflect the defendant's state of mind or other factors relevant to sentencing. In Kane, for example, the district court explicitly found that the content of the expressive conduct was not satire "meant only for entertainment purposes." 452 F.3d at 143. Where this link between protected conduct and factors relevant to sentencing is missing, the content of the artistic expression cannot be used to punish the defendant. This On this record, that link has not been forged. gets the grease from the goose. Given the sentencing court's heavy reliance on protected conduct that was not tied through extrinsic evidence to any relevant sentencing - 12 - factor, its sentencing rationale is implausible. This lack of plausibility is especially stark where — as in this case — the sentencing court undertook a sharp upward variance and, thus, assumed an obligation to provide a rationale compelling to support the degree of the variance." at 50. "sufficiently Gall, 552 U.S. Taking the lyrics and music videos as "objective evidence" of factors relevant to sentencing, without an iota of corroborating evidence, results in a sentencing rationale wholly unsupported by the record.4 Like a house built upon a porous foundation, a sentence built upon a rationale that is unsupported by the record cannot stand. See United States v. Ofray-Campos, 534 F.3d 1, 44 (1st Cir. 2008). III. CONCLUSION We need go no further.5 above, we vacate the defendant's For the reasons elucidated sentence resentencing consistent with this opinion. and remand for We take no view of the appropriate length of the sentence to be imposed. Vacated and remanded. 4 To be sure, the district court alluded to other factors in imposing sentence — specifically, Puerto Rico's high crime rate and the quantity of ammunition that the defendant was carrying. The sentencing transcript leaves no doubt, though, that the lyrics and music videos dominated the court's thought process and constituted the driving force behind the upwardly variant sentence. 5 We note that the defendant has put forth other arguments for vacating his sentence. Given our conclusion that the sentence lacks a plausible sentencing rationale and is therefore substantively unreasonable, we need not address these arguments. - 13 - APPENDIX For two of the Pacho y Cirilo works included in the PSI Report — "Dicen Que Vienen Por Mi" and "Como Grita El Palo" — the Report identifies specific lyrics performed by the defendant. Those lyrics, with an explanatory footnote omitted, some expletives deleted, and minor alterations to capitalization, are reproduced below. Intervening lyrics sung by other performers are denoted with an ellipsis. "Dicen Que Vienen Por Mi" . . . THE ONES IN CONTROL ALQAEDAS INCORPORATED . . . Listen, these dudes are still getting together a group To put them against me without them even knowing me Mine know what we can give They know we can go to war with the United States Army They hold eighty meetings They get 30 brown-nosers to join They say they are heading this way 'cause they have millions They get 10 rickety cars And thirty rifle carrying guys - 14 - If they want to have 50 fine with me they are shitting their pants They call and cry uncle after they hear all of the ak The same my posse have, all my cats We are clear They better listen I already know they are aware of the way I live I am passive if I'm treated right But really bad if treated wrong I am the kind that loves reggae and spraying them bullets Humiliate them to their face to see them handle a few bucks You don't have to be a millionaire to blow all his brains . . . These mother f---ers are dreamin' With prized birdies What the f--- are they saying What rifle is to be oiled? It must be the bb rifles being oiled by you, Mine are the pure scene And how do you want it to feel? I will let you pick The one you prefer But hurry up 'Cause I don't have that much patience - 15 - My conscience will go on as it has to this day Like a fool, you are not the first one I hit . . . Hey crazy we are hanging with D. Ozi daddy You know we don't tape with softy, daddy The tough ones with the tough ones We have a short career but a lot of musical value You know daddy Stay parked and easy daddy 'Cause you know we don't play . . . I am hanging with Bozz daddy The one in the f-----g track, Goldo You even know our rhythms The sound goes over . . . If these people doesn't want to help you out It's because they're scared "Como Grita El Palo" . . . (Listen, give me a break give me a chance at it too To hit 'em all sons of bitches with the most elephant one) I'm going about with a ski-mask and the moving notebook - 16 - Don't be braggin', your cat dances with the others at the Quiseven There are many that have airs and go around causing them posses to split You f--- around real low Don't be braggin' to me, don't defy me 'Cause I'll go out on a mission and will crack your face on the steering wheel We never let it down and we are always awake And to anyone giving a concert we will take down their stage We will empty the guitar and the show will be over Don't be coming here to brag with a dirty 4-4 We're at the castle, another league all together We are fine here, say what they may We're at the castle, another league We are eternal, see you in the other life . . . - 17 -
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