United States Court of Appeals For the First Circuit

No. 19-1992

UNITED STATES OF AMERICA,

Appellee,

v.

LUIS RIVERA-RUIZ,

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF PUERTO RICO

[Hon. Aida M. Delgado-Colón, U.S. District Judge]

Before

Thompson, Howard, and Kayatta, Circuit Judges.

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.

August 4, 2022 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

(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,

1 Because Rivera pleaded guilty, we draw the relevant facts from the plea agreement, the change-of-plea colloquy, the unchallenged portions of the Presentence Investigation Report ("PSR"), and the sentencing hearing transcript. United States v. Díaz-Rivera,

(1st Cir. 2020); United States v. Ubiles-Rosario,

, 280 n.2 (1st Cir. 2017).

- 2 - 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

(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

2 Rivera and the government both characterize Rivera's charge and guilty plea, in passing, as one for "RICO conspiracy." The record is clear, however, that Rivera was charged with and pleaded guilty to a substantive RICO violation under

(c), rather than RICO conspiracy under

(d). Although the district court made one similar reference to such a conspiracy at sentencing, it accurately described the charge to which Rivera pleaded guilty in imposing his sentence. 3 The remaining counts charged Rivera's co-defendants with multiple acts of extortion, drug-trafficking conspiracy, and unlawful firearm possession.

- 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, and subtracting three levels for acceptance 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

- 4 - 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

- 5 - (Nov. 2016), repealing Reg. 6506 (Aug. 2002).4 For each complaint,

the PSR listed a complaint number, which identified 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

4 The sentencing record does not contain any other information pertaining to the SARP or the processes under which administrative complaints against PRPD officers were filed and adjudicated at the time Rivera was an officer. Pursuant to relevant Puerto Rico regulations in effect between 1993 and 2015, any citizen or agency official could file an administrative complaint. See P.R. Regs. Policia Reg. 6506 art. 4(A) (Aug. 2002), repealed by Reg. 8841 (Nov. 2016); P.R. Regs. Policia Reg. 3742 (Feb. 1989), repealed by Reg. 6506. Responsibility for considering such complaints was shared among various sub-units of the PRPD, including the Superintendencia Auxiliar de Integridad Pública ("SAIP"). See P.R. Regs. Policia Reg. 6506 art. 4(D), art. 5(A)- (D). The regulations further provided loose guidance for either an informal or formal investigation into the alleged conduct, and, among other things, empowered "any supervisor, unit director or commander . . . [to] take or recommend the disciplinary or corrective measures that he deems necessary." P.R. Regs. Policia Reg. 6506 art. 5(D)(1). Alternatively, the PRPD Superintendent was authorized to discipline the subjects of such complaints, upon a recommendation from the SAIP investigators or an independent determination. Id. art. 5(D)(2)-(3). No specific evidentiary standard was provided in these regulations. Id. art. 5(H)(3). Cf. P.R. Regs. Policia Reg. 8841 art. XI(D)(2)(b) (Nov. 2016) (adopting preponderance of the evidence standard for factual and violation findings).

- 6 - "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

- 7 - "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

- 8 - 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

(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 the resemblance of the conduct for which the government charges him being involved between 2014 up to the time of the charges that were filed. He has a complaint for threats with firearms, several counts of illegal searches as well at the administrative level.

Ultimately, the district court concluded that a 60-month

incarcerative sentence was appropriate, based on "all of these

factors" -- including the nature of Rivera's "blatant disregard

for the law, his oath of office, and the integrity of the judicial

system" and a finding that Rivera "allowed others to violate the

law" during this time period. Following this explanation, Rivera

objected to the sentence as procedurally unreasonable on several

grounds, including the district court's purported "reli[ance] on

- 9 - administrative actions that were disposed of in [Rivera's] favor."

The district court responded that it had "not considered anything

in which [Rivera] was adjudged not guilty," that it had only

"alluded to complaints that had been filed," and that it had only

mentioned that the complaints were "similar" to his charged

conduct, particularly the 2013 illegal search complaint for which

Rivera was suspended. The court further explained that it was

"aware that there was no final status" as to the others, but that

it found that the PSR "contains a clear report of what happened."

This appeal followed.

II. DISCUSSION

A. Purported Breach of Plea Agreement

Rivera first contends that his sentence must be vacated

because the government breached the plea agreement by mentioning

at sentencing the three incidents that were not included in the

stipulation of facts or provided during discovery. He argues that

this proffer breached the government's "implicit

promise . . . that [his] criminal acts were [limited to] those"

contained in the plea agreement and amounted to "an end-run around

[the agreement's] assurances." After careful review, we find no

breach.

"Ordinarily, whether the government has breached its

plea agreement with a defendant is a question of law and our review

is plenary." United States v. Rivera-Rodríguez,

, 57

- 10 - (1st Cir. 2007). Where, as here, a "'defendant has knowledge of

conduct ostensibly amounting to a breach of a plea agreement, yet

does not bring that breach to the attention of the sentencing

court, we review only for plain error.'"

(quoting United

States v. Saxena,

(1st Cir. 2000)). "Thus, we

consider whether: (1) there was error, (2) it was plain, (3) the

error affected the defendant's substantial rights, and (4) the

error adversely impacted the fairness, integrity, or public

reputation of judicial proceedings."

(citations omitted).

Here, the government did not technically violate the

terms of the plea agreement. See, e.g., United States v. Frazier,

(1st Cir. 2003) (noting that whether the Government

breached the plea agreement is governed by basic contract

principles). Under the plea agreement, the government agreed to

recommend a sentence of 33 months, which is what it did. The plea

agreement did not expressly or implicitly preclude the government

from proffering additional relevant information to support its

recommendation, as it was plainly permitted to do under relevant

law. See, e.g., Rivera-Rodríguez,

(holding that

"the government was free to offer reasons in support of [its]

recommendation" at the high-end of the GSR, including that

defendant "was a significant supplier of cocaine, and that 'there

were quantities frankly beyond the amount stipulated to in the

plea agreement'" (cleaned up)); see also

("No

- 11 - limitation shall be placed on the information concerning the

background, character, and conduct of a person convicted of an

offense which a court . . . may receive and consider for the

purpose of imposing an appropriate sentence.").

Nor did the government violate the spirit of the plea

agreement through an "end-run around" its assurances. We have

held that, to honor the spirit of a plea agreement, "the

prosecution's 'overall conduct must be reasonably consistent' with

the promises contained [therein]." Frazier,

(quoting United States v. Canada,

(1st Cir.

1992)). Although the government need not present its

recommendation "with any particular degree of enthusiasm," it

cannot merely "pa[y] 'lip service' to the negotiated agreement" or

"inject material reservations" about it. Canada,

-

70.

Here, the government acted in good faith and adhered to

those principles. The government repeatedly stated that it was

recommending a sentence of 33 months, as promised, and that nothing

it said in argument should be construed otherwise. The

government's proffer of additional facts outside the plea

agreement did not reduce its ultimate sentencing recommendation to

mere "lip service." Rather, its introduction of these facts was

in direct response to Rivera's argument that his "transgressions"

were "isolated" and to support its recommendation for a 33-month

- 12 - sentence. Under these circumstances, there was no breach. See

Rivera-Rodríguez,

(no plain error where government

proffered facts not in plea agreement "in response to defense

counsel's argument" and in support of government's sentencing

recommendation). Moreover, the nature of these additional facts

-- i.e., that Rivera was widely known to steal money, had

associated with corrupt officers, and had beaten arrestees -- were

not so inflammatory, as compared to the admitted allegations of

his indirect involvement in the broader RICO enterprise, such that

they would provide any reason for us to conclude that they poisoned

the district court's perception of his character. In any event,

the district court repeatedly stated that it would not consider

these additional facts in determining Rivera's sentence, and there

is no compelling reason to doubt that assurance. Accordingly, we

find no breach, under our plain error review.5

B. Procedural Reasonableness

Next, Rivera argues that several aspects of his sentence

were procedurally unreasonable. We review preserved challenges to

5 Rivera's reliance on Canada is misplaced. There, the prosecutor never affirmatively requested the sentence that it had agreed to recommend in the plea agreement, among other things. See

(finding a breach where the prosecutor "urg[ed] the court to impose a lengthy sentence within a context suggesting she had in mind something greater than the agreed 36 months" in the plea agreement, e.g., agreeing on the record that she was "stuck with the plea agreement," with a "grudging and apologetic" tone). As we have explained, the circumstances here are markedly different.

- 13 - a sentencing's procedural reasonableness under "a multifaceted

abuse-of-discretion standard whereby we afford de novo review to

the sentencing court's interpretation and application of the

sentencing guidelines, assay the court's factfinding for clear

error, and evaluate its judgment calls for abuse of discretion."

United States v. Mendoza-Maisonet,

(1st Cir. 2020)

(internal quotes and cites omitted). "The clear-error standard is

demanding and will be satisfied only if, 'upon whole-record review,

an inquiring court "forms a strong, unyielding belief that a

mistake has been made."'"

(quoting United States v. Montañez-

Quiñones,

(1st Cir. 2018)) (cleaned up). As

relevant here, procedural errors include "selecting a sentence

based on clearly erroneous facts," United States v. Díaz-Rivera,

(1st Cir. 2020), such as where factual findings

are "based solely on unreliable evidence [and therefore] cannot be

established by a preponderance" of the evidence, as they must,

see United States v. Castillo-Torres,

(1st Cir.

2021).

In his strongest challenge, Rivera contends that the

district court erred by relying upon his record of administrative

complaints to impose an upwardly variant sentence. He argues that

because all but one of the complaints listed in the PSR had been

"dismissed" and lacked any description of the underlying

circumstances, the district court was not permitted to ascribe

- 14 - them any weight in fixing his sentence. Acknowledging that we

have not before considered the propriety of a sentencing court's

reliance on administrative complaints, Rivera analogizes them to

bare arrest records. Under our precedent, records of a defendant's

prior arrests or criminal charges not resulting in conviction

cannot themselves be relied upon at sentencing absent a finding

that the underlying misconduct actually occurred. See, e.g.,

Castillo-Torres,

. The government, in turn, argues

that the district court did not rely on these complaints, per se,

but rather mentioned them merely as "historical fact."

Alternatively, the government contends that, even if the district

court did rely on these complaints, there was no error because the

underlying conduct was sufficiently proven.

After careful review, we agree with Rivera that the

record does not sufficiently support the district court's exercise

of its discretion in relying on certain administrative complaints

that lacked any indicia of reliability as to whether the underlying

conduct took place.

Our cases make clear that a sentencing court may not

rely upon a defendant's prior arrests or unproven charges in fixing

a sentence, unless there is proof by a preponderance of the

evidence that the defendant engaged in the underlying conduct

alleged. See, e.g., id.; United States v. Dávilla-Bonilla,

(1st Cir. 2020); United States v. Colón-Maldonado, 953

- 15 - F.3d 1, 9-10 (1st Cir. 2020); United States v. Díaz-Lugo,

(1st Cir. 2020); United States v. Rondón-García,

(1st Cir. 2018); United States v. Marrero-Pérez,

(1st Cir. 2019); United States v. Cortés-Medina,

(1st Cir. 2016). This rule is derived from the

principle that all "factual findings made at sentencing must be

supported by a preponderance of the evidence." See Castillo-

Torres,

. That is, a sentence must be based on

"information [that] has sufficient indicia of reliability to

support its probable accuracy." See United States v. Morgan,

(1st Cir. 2004) (quoting United States v. Lopez,

(1st Cir. 2002)); see also United States v. Lombard,

(1st Cir. 1996) ("[T]he district court

may . . . choose to give weight to the uncharged offenses in fixing

the sentence . . . if it finds by a preponderance of the evidence

that they occurred . . . ."). This fundamental precept is not

only explicitly set forth in the Guidelines, see U.S.S.G. §

6A1.3(a), but also rooted in due process, see Colón-Maldonado, 953

F.3d at 10, "which guarantees every defendant a 'right to be

sentenced upon information which is not false or materially

incorrect,'" United States v. Tavano,

(1st Cir.

1993) (quoting United States v. Berzon,

(1st Cir.

1991)). See also United States v. Watts,

(1997) (per curiam); Townsend v. Burke,

(1948);

- 16 - U.S.S.G. § 6A1.3(a) cmt. (reflecting Sentencing Commission's

finding that the preponderance standard "is appropriate to meet

due process requirements").

Thus, a sentencing court may not rely upon a bare arrest

record or mere charges "unsupported by any admission or some other

evidence," regardless of whether it does so for the purpose of

imposing a within-Guideline sentence, departing above the

Guidelines pursuant to U.S.S.G. § 4A1.3(a), or varying above the

Guidelines based on the statutory sentencing factors enumerated in

(a).6 See Castillo-Torres,

; United

6 To be sure, we have not before expressly decided whether this proscription against reliance on a "bare arrest record" applies in the context of a variant sentence, as it expressly does for an upward departure under U.S.S.G. § 4A1.3(a). See Colón- Maldonado, 953 F.3d at 9 n.8; U.S.S.G. § 4A1.3(a)(3) (providing that "[a] prior arrest record itself shall not be considered for purposes of an upward departure" based upon a defendant's inadequate criminal history category). We conclude that it does. Although the policy statement embodied in § 4A1.3(a)(3) does not apply to variant sentences under

(a), see Díaz- Lugo,

n.1; United States v. Rodríguez-Reyes,

(1st. Cir. 2019), the due process requirement embodied in U.S.S.G. § 6A1.3(a) is not so limited, Castillo- Torres,

; United States v. Amirault,

(1st Cir. 2000) (stating that "[f]rom the standpoint of due process, a district court properly may consider uncharged conduct at sentencing" only if "that conduct either is admitted or reliably proved by a preponderance of the evidence"). As we recently explained in Castillo-Torres, which dealt with a within-Guideline sentence, the unifying principle in any context is that information used to "form the basis for a longer term of immurement than the court would have [otherwise] imposed" must be sufficiently reliable. See

; see Colón-Maldonado, 953 F.3d at 9 n.8 (noting that the "basic principle" underlying § 4A1.3(a)(3) "equally appl[ies]" to an upward variance: "a bare arrest or charge does not prove the defendant committed the crime"); U.S.S.G.

- 17 - States v. Aponte-Vellón,

(1st Cir. 2014)

(explaining distinction between an upward departure and a variant

sentence). Of course, whether particular evidence is sufficiently

reliable is within the sentencing court's "wide discretion," see

United States v. Rodríguez-Reyes,

(1st. Cir.

2019) (quoting United States v. Cintrón-Echautegui,

(1st Cir. 2010)), and the court's factual determinations and

reliability findings are subject to clear error review, see

Castillo-Torres,

(citing United States v. Luciano,

(1st Cir. 2005)). "We have made clear that

findings based solely on unreliable evidence cannot be established

by a preponderance and are therefore clearly erroneous."

Here, we hold that this rule applies even more strongly

to the administrative complaints filed against Rivera. Much like

a criminal complaint, which "is just an accusation that starts off

a criminal case," see Colón-Maldonado, 953 F.3d at 2 (citing P.R.

§ 6A1.3(a). There is "no hint" in our precedent that "unsupported allegations" foreclose application of some enhancements, but not others. Castillo-Torres,

. Accordingly, regardless of whether a defendant's prior unlawful conduct is offered to demonstrate his under-represented criminal history score, under § 4A1.3(a), or his history and characteristics, under § 3553(a), it must be proven by a preponderance of the evidence before a court may "infer unlawful behavior" from such conduct to be factored into sentencing. See Colón-Maldonado, 953 F.3d at 9. In either case, a bare arrest record or mere charge does not suffice, without an admission or some other evidence that the underlying conduct more likely than not took place. See, e.g., Marrero-Pérez,

("[P]roof only of an arrest is no proof of guilt.").

- 18 - Laws Ann. tit. 34, Ap. II, §§ 5, 34), the administrative complaints

at issue are simply accusations of misconduct that sometimes launch

an investigation and result in adjudication. And they could have

been filed by anyone. See P.R. Regs. Policia Reg. 6506 arts. 4(A),

5 (Aug. 2002), repealed by Reg. 8841 (Nov. 2016); P.R. Regs.

Policia Reg. 3742 (Feb. 1989), repealed by Reg. 6506 (Aug. 2002);

see also supra note 4. As would generally be the case with an

arrest or criminal charge, the complaints were only relevant to

the district court's analysis of Rivera's history and

characteristics if the underlying misconduct more likely than not

took place. See, e.g., Marrero-Pérez,

(reiterating

warning that bare "reliance on arrests" may not serve "as a proxy

for criminal culpability or the likelihood of recidivism"). The

risk that an unadjudicated accusation could be unreliable remains

constant regardless of the process under which it was alleged.

See Castillo-Torres,

(analogizing a criminal

complaint to an arrest record). That risk is even more pronounced

where, as here, there is no presumption that the charges were at

least supported by probable cause. In any event, for the district

court to rely upon and "infer unlawful behavior" from these

complaints, the government must show by a preponderance of the

evidence that the underlying misconduct occurred. See Colón-

Maldonado, 953 F.3d at 9-10; Rondón-García,

.

- 19 - We also conclude that the district court relied upon

Rivera's administrative complaints in making its sentencing

determination. In considering the § 3553(a) factors, the district

court explicitly referenced Rivera's multiple "administrative

complaints," including "a complaint for threats with firearms

[and] several counts of illegal searches," thereby tying them to

its consideration of Rivera's history and characteristics. See

(a)(1). The court particularly focused on the

"complaints for the year 2013," of which there were two, noting

that "many of those involved and were related to illegal searches."

It then "point[ed] to the resemblance of [that] conduct" to the

conduct underlying Rivera's RICO conviction, plainly implying that

Rivera was some kind of repeat offender. This makes sense, after

all, as one would expect such information to be given some weight

if it could be shown that Rivera more likely than not abused his

authority prior to his commission of a comparable offense of

conviction. See Castillo-Torres,

; Marrero-Pérez,

(noting that "recidivist behavior" is a "proper

consideration[] at sentencing"); see also Rodríguez-Reyes,

(same). While we note that the court conscientiously

stated that it was "not making any conclusory determinations as

to" Rivera's culpability for the accused conduct, we are unable to

square that non sequitur with the record as a whole. Any

comparison between the administrative complaints and Rivera's RICO

- 20 - violation was only valid to the extent Rivera more likely than not

engaged in the misconduct precipitating the complaints.

Although we have stated, often in dicta and under plain

error review, that a sentencing court is not forbidden from

"mere[ly] mention[ing]" a defendant's arrest record or dismissed

charges "as a matter of historical fact, without more," see, e.g.,

United States v. Santa-Soler,

(1st Cir. 2021)

(citing Díaz-Lugo,

), or "as part of a broader

assessment of the defendant's troubling trajectory [of] serial

encounters with the criminal justice system," see, e.g., United

States v. Miranda-Díaz,

(1st Cir. 2019) (citing

Rodríguez-Reyes,

n.4), that is not what happened

here. In this case, there was plainly "more." As discussed above,

the district court's treatment of Rivera's administrative

complaints exceeded the type of "passing reference" or "brief

recitation of procedural facts," see Díaz-Rivera,

,

that we have determined incurs no error. Cf. United States v.

Quiles-Lopez,

(1st Cir. 2021) (no error in

making "single reference" to arrests in context of reciting

criminal history); Santa-Soler,

(no error in merely

reciting arrest record and stating that arrests were "not

considered for the sentence"); Díaz-Lugo,

(no

error in "passing reference" to uncharged arrest "while

constructing a chronology of the [defendant's] criminal history,"

- 21 - where "[a]s quickly as the court referred to the arrest, it

completed its recital . . . and then moved on to a detailed

discussion of the section 3553(a) factors"). The court's

comparison of the illegal searches to Rivera's RICO conviction,

within the context of discussing the § 3553(a) factors, makes this

distinction clear. Cf. United States v. Vélez-Andino,

, 113 (1st Cir. 2021) (no abuse of discretion where court did

not specifically cite dismissed charges in discussing § 3553(a)

factors and defendant's "utter disregard for the law," focusing

instead on his several convictions).

Having determined that the district court relied upon

Rivera's record of administrative complaints, we review for clear

error whether its reliance was sufficiently supported. See

Castillo-Torres,

. With respect to the court's

discussion of the 2013 illegal-search complaint for which Rivera

was ultimately suspended, we find no error. The PSR provided

sufficient detail about the circumstances surrounding the

warrantless search and Rivera's specific violations to enable the

court to determine what likely happened. More importantly, the

PSR disclosed that Rivera admittedly lied about the circumstances

surrounding the search and that he was determined to be at fault

for "making false statements" and conducting an illegal search.

Rivera did not object to the PSR's description of these events or

his resulting suspension. "A sentencing court can indeed rely on

- 22 - the undisputed information contained in the PSR at sentencing as

'generally, a PSR bears sufficient indicia of reliability.'" Díaz-

Rivera,

(quoting Rondón-García,

).

Thus, the district court acted within its discretion in relying

upon the 2013 illegal search complaint because the record supported

a finding that the underlying conduct more likely than not

occurred. Cf. Dávilla-Bonilla,

(no abuse of

discretion in court's reliance on dismissed domestic violence

charges where PSR contained defendant's admission that he

committed "prior domestic violence offenses"); Rodríguez-Reyes,

(finding that PSR's unobjected-to discussion of

defendant's drug use provided sufficient indicia of reliability

that defendant committed the conduct initiating his prior drug

possession arrests); see also United States v. Tabares,

(1st Cir. 1991) (finding no error in sentencing court's

reliance on dismissed charges where "[t]here [was] no

reason . . . to doubt that these acts occurred," given defendant's

"failure to contest the facts" provided in the PSR).

By contrast, the allegations underlying the remaining

complaints, as repeated in the PSR, were merely "uncorroborated,

unsworn hearsay with no other marks of reliability." Castillo-

Torres,

(quoting Colón-Maldonado, 953 F.3d at 12).

As discussed above, the PSR merely provided the alleged offense

underlying these complaints, their date, and that their

- 23 - "circumstances . . . remain unknown." This included a 1994

complaint for "threats with a duty firearm" and two additional

complaints for "illegal search," from 2007 and 2013, respectively

-- all of which the district court expressly mentioned in its

§ 3553(a) discussion. The PSR also disclosed that Rivera had been

exonerated for a 2015 complaint for an illegal search. Unlike the

2013 illegal search discussed above, there is no further detail

about the events precipitating these other complaints, the alleged

violations, or any final determinations.7 The record of these

complaints is similar to, if not less reliable than, a bare arrest

record or criminal charge. By themselves, the complaints lack

sufficient indicia of reliability to support a finding that Rivera

more likely than not committed the alleged conduct. See, e.g.,

id. at 71; Colón-Maldonado, 953 F.3d at 13; Dávilla-Bonilla,

. And the record reveals no other evidence that could

have reasonably buttressed their reliability. The district

7Rivera contends that these complaints were "dismissed," but the record is unclear on their specific dispositions. In any event, the PSR provides no information to suggest that these complaints were disposed of based on anything other than their lack of merit. See, e.g., Rondón-García,

("A court . . . cannot simply presume that past charges resolved without conviction are attributable to flawed or lax prosecutorial or judicial systems rather than the defendant's innocence." (citation omitted, cleaned up, and new alteration added)). Cf. Rodríguez-Reyes,

(finding no error in court's reliance on dismissed and expunged charges where uncontested PSR charges were disposed not because of "any finding on the merits of the case[s], but for other reasons" (internal cites and quotes omitted, alteration in original)).

- 24 - court's broad reference to the multiple "complaints," including

the "several counts of illegal searches" necessarily drew upon

these unsupported accusations. Thus, the district court's finding

that the conduct underlying Rivera's multiple unadjudicated

"complaints" for illegal searches "resemb[led] or was "similar to"

his RICO conduct was clearly erroneous.8 See Castillo-Torres,

("[F]indings based solely on unreliable evidence cannot

be established by a preponderance and are therefore clearly

erroneous.").

Finally, based on this record, we cannot conclude that

the district court's error was harmless, i.e., that it "did not

affect the . . . selection of the sentence imposed."

at 73

(quoting United States v. Tavares,

(1st Cir.

2013)) (alterations in original). Although the district court

paid particular focus to the one 2013 complaint for the

sufficiently-supported illegal search, it discussed that complaint

together with the second illegal-search complaint filed in 2013

for which there was no further detail or findings, noting that

"many of" the 2013 complaints "involved and were related to illegal

searches." Elsewhere in its discussion, the district court alluded

to the larger administrative record in the collective -- e.g.,

8We reject the government's argument that Rivera's instant racketeering conviction for events transpiring between 2014 and 2018 somehow provides evidence of seemingly unrelated illegal searches alleged to have occurred years before.

- 25 - "[t]his defendant has some administrative complaints," including

"several counts of illegal searches" -- and gratuitously noted

Rivera's "complaint for threats with firearms." Thus, we cannot

say that the sole complaint that was properly considered would

have necessarily resulted in and justified the sentence imposed,

without the benefit of further explanation. One could reasonably

view any number of prior administrative sanctions related to abuse

of authority to be relevant sentencing factors in a case such as

this. But the weight to be given such instances at sentencing

will necessarily depend upon their frequency and severity, and we

believe a more detailed explanation as to any comparison was

warranted. See, e.g., Díaz-Lugo,

("The extent of

the explanation must be commensurate with the extent of the

variance."). Similarly, a court may reasonably find that a corrupt

official's criminal history category is underrepresented due to

his "[p]rior similar misconduct established by a civil

adjudication," U.S.S.G. § 4A1.3(a)(2)(C), but the extent of this

inadequacy and the corresponding sentencing departure will depend

upon those same considerations and must be adequately explained.

See United States v. Wallace,

(1st Cir. 2006).

To be sure, there was ample other evidence relevant to

sentencing. The district court's own statements make clear that

it placed substantial weight on the "blatant" and damaging nature

of Rivera's offense, which it determined betrayed his oath of

- 26 - office and undermined the integrity of the local criminal justice

system. But we note that these considerations were already

reflected in Rivera's GSR, at least partially, by way of the two-

level enhancement for abuse of position of public trust. See

U.S.S.G. § 3B1.3. As we have previously held, a substantial

variance -- such as the 60-month sentence imposed here, which

doubled the midpoint of the GSR -- must be supported by a

commensurately extensive explanation. See, e.g., Díaz-Lugo,

; United States v. Martin,

(1st Cir.

2008); United States v. Smith,

(1st Cir. 2006).

Similarly, "[w]hen a factor is already included in the [GSR], a

judge who wishes to rely on that same factor to impose a sentence

above or below the range must articulate specifically the reasons

that this particular defendant's situation is different from the

ordinary situation covered by the guideline calculation." United

States v. Zapete-Garcia,

(1st Cir. 2006). Here,

however, the district court did not articulate any specific reasons

that Rivera's conduct exceeded that ordinarily envisioned by the

enhancement. We conclude that, without the impermissible

inference drawn from Rivera's lengthy record of administrative

complaints, the district court's explanation for the sentence is

substantially weakened to the point that we cannot deem this error

to be harmless.

- 27 - III. CONCLUSION

For the reasons stated above, we VACATE Rivera's

sentence and REMAND for resentencing consistent with this opinion.9

9 In light of our holding that the district court went beyond its permissible discretion in relying upon certain of Rivera's prior administrative complaints, we need not consider Rivera's other claims of procedural and substantive unreasonableness. Additionally, having found no breach of the plea agreement, we need not consider Rivera's request for resentencing by a different judge, as Rivera perfunctorily requests in connection with that challenge alone.

- 28 -