United States Court of Appeals For the First Circuit

No. 22-1116

UNITED STATES OF AMERICA,

Appellee,

v.

WESLEY PORTELL-MÁRQUEZ,

Defendant, Appellant.

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

[Hon. Francisco A. Besosa, U.S. District Judge]

Before

Kayatta, Howard, and Thompson, Circuit Judges.

Héctor Sueiro Álvarez, with whom Eric Alexander Vos, Federal Public Defender, and Franco L. Pérez-Redondo, Assistant Federal Public Defender, were on brief, for appellant.

David C. Bornstein, 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.

February 10, 2023 HOWARD, Circuit Judge. Having received the same

incarcerative sentence on remand that had been imposed prior to

his previous sentencing appeal, Wesley Portell-Márquez ("Portell")

challenges the imposition of his sentence of twenty-four months'

imprisonment for violating the terms of his supervised release.

Concluding that the sentence is both procedurally and

substantively reasonable, we affirm.

I. BACKGROUND

On October 1, 2019, Portell completed a thirty-seven-

month term of imprisonment for possession of a firearm following

a felony conviction, see

(g)(1), and began a three-

year term of supervised release. Fifteen months into his term of

supervised release, Puerto Rico police officers intervened in a

domestic dispute between Portell and his pregnant consensual

partner. Portell was charged with two counts of aggravated abuse

pursuant to Article 3.2 of Puerto Rico's Domestic Violence law.1

Portell's probation officer subsequently informed the district

court that Portell had violated two separate conditions of his

supervised release that prohibited his commission of any federal,

state, or local crimes during the period of supervised release.

The probation officer's motion summarized the allegations

1Prior to Portell's revocation hearing in federal court, the state-court complaint against Portell was dismissed pursuant to Puerto Rico's speedy trial requirements.

- 2 - contained in the state criminal complaint against Portell,

including that Portell had pushed and punched his partner and had

broken her cell phone.

The district court held a revocation hearing on May 14,

2021. At the hearing, Portell admitted to violating the two

conditions of his supervised release, informing the court that "he

[wa]s not contesting the violations to the mandatory conditions

one and two, which were that he must not commit another crime, in

this case Article 3.2 of the Puerto Rico Domestic Violence Law,"

and that he was not contesting "docket entry 70, the motion filed

by the probation officer."

The hearing thus focused primarily on the issue of an

appropriate sentence. As to this, Portell argued that, properly

categorized, his conduct constituted a grade B violation, that the

appropriate guidelines range was eight to fourteen months'

imprisonment, and that a sentence of fourteen months was

appropriate given "the seriousness of the allegations" which

warranted a sentence at "the higher end of the guidelines."

Portell further represented to the court that this was his first

domestic violence incident and that he was willing to attend

couples therapy or anger management courses if the court deemed

those necessary to his rehabilitation. On the question of the

violation grade, the government deferred to the probation officer,

who contended that the violation was a grade A violation. The

- 3 - government then focused on "the gravity" of Portell's violation,

noting that he broke the victim's cell phone; forcefully pushed

her with both hands; and punched her in the face, which broke her

lip and required her to receive medical attention. The government

also stressed that the victim obtained an ex parte protection order

based on her fear for her security and indeed her life.

Acknowledging that Portell had "accepted that he committed the

violations," and weighing that against their seriousness, the

government argued for a sentence of eighteen months' imprisonment.

Given an opportunity to respond, Portell did not object to the

government's discussion or characterization of the facts alleged

in the complaint; instead, Portell reiterated that he believed his

conduct was a grade B violation and that the seriousness of the

offense warranted a sentence at the higher end of the guidelines.

The court determined that Portell's was a grade A

violation and calculated his Guidelines incarcerative range to be

eighteen to twenty-four months. The court then imposed a sentence

of twenty-four months' imprisonment, explaining that the sentence

was warranted "[t]o reflect the seriousness of the offense, promote

respect for the law, provide just punishment for the offense,

afford adequate deterrence, and to protect the public from further

crimes by Mr. Portell." In doing so, the court specifically noted

that "the State Court documents reflect that Mr. Portell physically

assaulted his pregnant consensual partner by punching her with his

- 4 - fist -- punching her mouth with his fist, breaking her cell phone,

and pushing her." Following the announcement of the sentence,

Portell objected "to the finding of a grade A violation,"

reiterated his argument that he had committed only a grade B

violation, and, on that sole basis, objected to the substantive

and procedural reasonableness of the sentence.

On Portell's appeal to this court, the government

conceded that the grading analysis conducted in the district court

was erroneous. We agreed, and in an order of judgment, vacated

and remanded to the district court on the grounds that the district

court's violation-grading process and conclusion were inconsistent

with our circuit's precedent. United States v. Portell-Márquez,

No. 21-1447,

at *1-2 (1st Cir. Nov. 22, 2021). In

that decision, we specifically noted that "[a]t the final

revocation hearing, [Portell] did not challenge the contents of

the operative violation report, but he did argue that the

violations should be treated as grade B violations for sentencing

purposes."

.

On remand, the district court concluded that Portell's

was indeed a grade B violation and calculated his guidelines range

to be eight to fourteen months. Portell again argued that a

fourteen-month sentence was appropriate and informed the court

that he would be receiving treatment for his anger management

issues. The court then explained that it had "taken into

- 5 - consideration the factors set forth in [

(a)], and

the seriousness of Mr. Portell's violations" and that it found his

violations to "reflect[] his complete lack of respect for the law,

the supervision process, and conditions of supervised release

imposed by this [c]ourt" and that "his original sentence [for the

original firearms offense] did not serve the objective of

punishment or deterrence." The court then imposed an upwardly-

variant sentence of twenty-four months of imprisonment, the same

length it had imposed after the original revocation hearing (and

the court also included an additional eighteen month term of

supervised release). In doing so, the court reiterated that "the

state court documents reflect that Mr. Portell physically

assaulted his pregnant consensual partner by pushing her and

punching in the mouth with his fist and breaking her cell phone."

Portell once again objected to the procedural and substantive

reasonableness of the sentence, arguing that it was improper for

the court to consider the state-court complaint and that, without

the complaint, there was no evidence or basis on which the court

could justify the above-guidelines sentence.

II. DISCUSSION

A.

We review the sentence imposed following the revocation

of supervised release for abuse of discretion. United States v.

Wright,

(1st Cir. 2016). Within this abuse of

- 6 - discretion review, "[w]e review factual findings for clear error,

arguments that the sentencing court erred in interpreting or

applying the guidelines de novo, and judgment calls for abuse of

discretion simpliciter." United States v. Laureano-Pérez,

(1st Cir. 2015) (quoting United States v. Serunjogi,

(1st Cir. 2014)).

B.

Portell appeals the sentence imposed by the district

court as both procedurally and substantively unreasonable, arguing

that the court lacked a sufficient basis on which to justify its

upwardly-variant sentence. According to Portell, the record was

devoid of specific information regarding the conduct underlying

his arrest, and thus the sentencing judge necessarily obtained

that information from, and premised the variance on, the Spanish-

language state-court criminal complaint in violation of the Jones

Act. See

("All pleadings and proceedings in the

United States District Court for the District of Puerto Rico shall

be conducted in the English language."); United States v. Millán-

Isaac,

(1st Cir. 2014) ("As a consequence [of the

Jones Act], federal judges must not consider any untranslated

documents placed before them."). Portell's challenge fails,

however, because the district court did not rely on the Spanish-

language complaint to justify its sentence. The district court

instead relied on the probation officer's motion, and, critically,

- 7 - Portell's admission to the conduct described in that motion which

provided a sufficient basis on which the district court justified

its sentence.

i.

At sentencing, a "court may 'consider evidence including

letters, affidavits, and other material that would not be

admissible in an adversary criminal trial.'" United States v.

Colón-Maldonado,

(1st Cir. 2020) (quoting Morrissey

v. Brewer,

(1972)). However, the evidence

considered by the district court in determining an appropriate

sentence must be reliable.

(citing United States v. Portalla,

(1st Cir. 1993)); see also United States v.

Mills,

(1st Cir. 2013) ("[T]he court can consider

all kinds of relevant information regardless of admissibility at

trial (including hearsay that has never been tested by cross-

examination), provided it has 'sufficient indicia of reliability

to support its probable accuracy.'" (quoting U.S.S.G. § 6A1.3)).

"[T]he court has considerable leeway in deciding whether

particular evidence is reliable enough for sentencing purposes,

and we review only for abuse of discretion.'" Mills,

.

Accordingly, while we have held that "a sentencing court

may not rely upon a bare arrest record or mere charges 'unsupported

by any admission or some other evidence' . . . [to] vary[] above

- 8 - the Guidelines based on the statutory sentencing factors

enumerated in

(a)," see United States v. Rivera-

Ruiz,

(1st Cir. 2022) (emphasis added)

(quoting United States v. Catillo-Torres,

(1st Cir.

2021)), we have also held that, where the allegations in an arrest

report or similar document are buttressed by some other evidence

providing the requisite sufficient indicia of reliability that the

conduct underlying the arrest occurred, a court is not precluded

from considering the arrest and conduct underlying it at

sentencing,

. We have found such indicia of reliability

to be present where the defendant either affirmatively admitted to

the conduct underlying the arrest or unproven charges, or did not

object to a presentence investigation report ("PSR") setting forth

the conduct. See

(finding that "the district court acted

within its discretion in relying upon [an administrative]

complaint" because the defendant had not objected to the

description of events underlying the complaint in a PSR and thus

"the record supported a finding that the underlying conduct more

likely than not occurred"); see also United States v. Dávila-

Bonilla,

(1st Cir. 2020) (no error in district

court's consideration of a dismissed local charge at sentencing

because the defendant's "unobjected-to admissions to the

preparer's report provide some greater indicia of reliability that

the actions triggering the arrests occurred") (internal quotations

- 9 - and citation omitted); United States v. Rodríguez-Reyes,

(1st Cir. 2019) (finding that unobjected-to portions of

the defendants' PSR which described earlier arrests "provide[d]

'some greater indicia of reliability,' beyond the mere fact of

arrest, 'that the conduct underlying the arrest[s] took place'")

(alterations in original) (quoting United States v. Marrero-Pérez,

(1st Cir. 2019)). Further, "we have held that a

sentencing court may consider arrests not leading to convictions

where '[t]here is no reason . . . given [defendant's] failure to

contest the facts [in the PSR] and the absence of any acquittal,

to doubt that these facts occurred.'"

(alterations in original)

(quoting United States v. Tabares,

(1st Cir.

1991) (Breyer, J.)).

While these cases primarily dealt with a defendant's

admission, or failure to object, to conduct as described in a PSR,

we can fathom no principled reason for applying a different rule

where, as here, the defendant's admission is instead made to a

probation officer's motion identifying violations of supervised

release conditions. In such a situation, a district court may

rely on that admission as demonstrating reliably that the conduct

alleged occurred, just as we have previously held that it may do

so where the admission is made to conduct described in a PSR.

- 10 - ii.

Here, Portell admitted to the conduct alleged in the

probation officer's motion and this admission provided the

district court with a sufficiently reliable evidentiary basis to

conclude that the conduct underlying the arrest occurred and to

consider that conduct, as described in the motion and admitted by

Portell, at sentencing.

Portell argues that the district court misunderstood the

scope of his admission, claiming that while he admitted to

violating Article 3.2, and thus the conditions of his supervised

release, he did not admit to any specific conduct in violation of

Article 3.2. This argument is unavailing and contradicted by the

record.

At the revocation hearing, Portell specifically

represented to the court that he was not contesting "docket entry

70, the motion filed by the probation officer." Further, Portell's

arguments at sentencing were implicitly premised on the facts

alleged in the probation officer's motion, with Portell repeatedly

acknowledging "the seriousness of his offense" and the

appropriateness of a sentence at the high-end of the guidelines

range, representing that this was his first domestic violence

incident and demonstrating a willingness to attend anger

management courses. Portell's reliance on these facts in making

his sentencing arguments precludes him from now disclaiming their

- 11 - validity. Cf. United States v. Parrilla-Tirado,

(1st Cir. 1994) ("It is the policy of the law to hold litigants to

their assurances. . . . '[w]e will not permit a defendant to turn

his back on his own representations to the court merely because it

would suit his convenience to do so.'") (alteration in original)

(quoting United States v. Pellerito,

(1st Cir.

1989)).

Furthermore, Portell failed to raise any objection at

the initial revocation sentencing hearing when both the government

and the court specifically repeated, and extensively discussed,

the conduct alleged in the probation officer's motion. When

Portell did object at that hearing, the objection was limited to

the court's violation grading methodology and conclusion.

Accordingly, when we decided Portell's appeal on that issue we

expressed the same understanding as to the scope of Portell's

admission as the district court (which Portell now challenges):

that "[a]t the final revocation hearing, [Portell] did not

challenge the contents of the operative violation report . . ."

Portell-Márquez,

at *1 (emphasis added).

Portell also failed to raise an objection when the

district court once again discussed those same facts on remand in

advance of handing down its new sentence. When Portell finally

did object to the sentence, and to the court's reliance on the

conduct alleged in the probation officer's motion, he specifically

- 12 - stated that he "did not contest the allegations for sentencing

purposes" but nonetheless argued that the court could not rely on

those uncontested allegations at sentencing. The flaw in this

argument is that it would require a court to permit Portell to

admit to the conduct described in the officer's motion and to rely

on that conduct for the purposes of his own sentencing arguments,

but preclude the court from similarly considering that conduct in

crafting its sentence. Portell's challenge is thus without merit

and contradicted by the record. His admission to the conduct

alleged in the probation officer's motion provided the requisite

"indicia of reliability" that the conduct prompting his arrest

occurred and it was not an abuse of the court's discretion for the

court to consider that conduct at sentencing.

In addition to the scope of his admission, Portell's

challenge also focuses on the district court's reference to "the

state court documents" as demonstrating that the court nonetheless

improperly premised its sentence on the state-court complaint.

However, as discussed, the record reveals that the variance was

not premised on the state-court documents themselves but was

instead based on the probation officer's motion (which summarized

the allegations in the state-court documents) and, crucially,

Portell's admission to the conduct described therein. Indeed, the

court explained as much when Portell objected on these grounds at

the second sentencing hearing; the court noted that it considered

- 13 - that Portell punched his partner in the mouth and, when Portell

claimed that conduct had not been proven, responded that "that's

what's in the probation officer's motion, which [Portell] did not

contest." Accordingly, even if we were to agree with Portell and

conclude that the district court's reference to "the state court

documents" demonstrates that the court did consider Spanish-

language documents -- which we do not -- any Jones Act violation

would be harmless, and we would nonetheless affirm the sentence on

the basis that the Spanish-language information was merely

cumulative of the information to which Portell admitted and which

the district court properly considered in justifying its sentence.

See Millán-Isaac,

("[N]ot all Jones Act

violations require reversal. . . . [I]f the untranslated evidence

is merely cumulative, any prejudice to the parties caused by this

court's inability to review untranslated evidence is

inconsequential and will not require reversal.") (citations

omitted).

Portell's claims of procedural and substantive error are

both premised on his arguments that the district court improperly

relied on the Spanish-language evidence and otherwise lacked a

sufficient basis on which it could justify the variant sentence.

Those arguments are, for the reasons discussed above, unavailing.

Further, we do not find any other error, procedural or substantive,

with the district court's sentencing methodology or the sentence

- 14 - it imposed. The district court "calculat[ed] the applicable

Guidelines Sentencing Range ('GSR'), address[ed] any objections to

the probation department's [motion], g[ave] both parties an

opportunity to argue for whatever sentence they deem[ed]

appropriate, consider[ed] the

(a) sentencing

factors, and explain[ed] the reasoning behind the chosen

sentence." Laureano-Pérez,

("A sentence is

procedurally sound so long as the district court complies with

th[is] specifically delineated roadmap." (internal quotation marks

and citation omitted)). And, the court's variant sentence,

premised on the nature of Portell's violation, "reflects a

plausible sentencing rationale and a defensible result" and is

thus substantively reasonable. United States v. Soto-Soto,

(1st Cir. 2017) (internal quotation marks and

citation omitted). Affirmed.

- 15 -