Not for Publication in West's Federal Reporter

United States Court of Appeals For the First Circuit

No. 20-1170

UNITED STATES OF AMERICA,

Appellee,

v.

KEVIN JADIEL FIGUEROA-ROMAN,

Defendant, Appellant.

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

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

Before

Barron, Chief Judge, Hamilton* and Thompson, Circuit Judges.

Syrie D. Fried, with whom Good Schneider Cormier & Fried was on brief, for appellant.

Gabriella S. Paglieri, with whom W. Stephen Muldrow, United States Attorney, and Mariana E. Bauzá-Almonte, Assistant United States Attorney, Chief, Appellate Division, and Maarja T. Luhtaru, Assistant United States Attorney, were on brief, for appellee.

* Of the United States Court of Appeals for the Seventh Circuit, sitting by designation. July 18, 2024 THOMPSON, Circuit Judge. Kevin Jadiel Figueroa-Roman

("Figueroa-Roman") went on a carjacking spree in April 2019,

participating in multiple carjackings alongside three associates

(ultimately codefendants) with the endgame of selling the stolen

cars. Caught, arrested, and indicted,1 Figueroa-Roman struck a

deal and pleaded guilty to four counts of aiding and abetting his

cohorts. On appeal, he challenges the 108-month sentence he was

given by the district court. Figueroa-Roman says that sentence is

procedurally unreasonable because the court inadequately explained

its sentencing rationale and impermissibly relied on factors that

were either already accounted for in the guidelines calculations

or were unsupported by the record. As we'll explain, writing

solely for the parties as we do so, we vacate and remand for

clarification. We can keep our discussion succinct.2

1 In July 2019, a grand jury rendered a seven-count superseding indictment against Figueroa-Roman and his codefendants. Four of those counts were against Figueroa-Roman, all for violations of

and

, aiding and abetting, with the intent to cause death or serious bodily harm, in the taking of a motor vehicle from the person of another by force, violence, and intimidation. 2 Since Figueroa-Roman's sentencing appeal comes on the heels of him pleading guilty, the facts we recite today are "from the plea agreement, the change-of-plea colloquy, the undisputed portions of the presentence investigation report ('PSR'), and the transcript of the disposition hearing." United States v. Rivera-Santiago,

(1st Cir. 2019) (quoting United States v. O'Brien,

(1st Cir. 2017)).

- 3 - Our outcome today is propelled by a comment the district

court made during Figueroa-Roman's sentencing colloquy. To get

our bearings, we'll zip back in time to the sentencing hearing --

beyond the parties' arguments, up to the part where the sentencing

judge is offering his reasoning as he pronounces sentence. The

district court determined that the parties' requested sentences

(while probation calculated a guidelines sentencing range of 70 to

87 months' imprisonment, Figueroa-Roman asked for 63 months'

imprisonment3 and the government suggested 70.5 months'

imprisonment) failed to reflect the seriousness of the offense,

promote respect for the law, protect the public from further crimes

by Figueroa-Roman, or address deterrence and punishment. The court

went on (emphasis ours):

The Court has balanced Mr. Figueroa's lack of a criminal record, the pro-social support he enjoys from his family, with the seriousness of the offense, their violent nature, the psychological impact caused to the victims, and Mr. Figueroa's association with convicted

3Actually, he requested a sentence in accordance with what he sought in his sentencing memorandum, which was a downward variance and a sentence of 36 months of imprisonment -- but, as the government suggests on appeal, this was probably a typo. Certainly the sentencing court understood Figueroa-Roman to have requested 63 months as it indicated as much during sentencing (and no one chimed in with an objection or correction).

- 4 - felons when assessing Mr. Figueroa's risk to the community once he is released.

The court imposed 108 months' imprisonment as to each count, to be

served concurrently.

As part of his argument to us on appeal, Figueroa-Roman

zeroes in on the sentencing court's reliance on Figueroa-Roman's

"association with convicted felons," which he says is a problem:

There is no evidence that his codefendants were convicted felons

before the carjacking offenses. True, they were about to become

felons in consequence of the indictment and ensuing plea deals.4

But Figueroa-Roman urges that there's nothing in his sentencing

record to indicate that any of his cohorts otherwise had engaged

in pre-carjacking felonious conduct -- or that Figueroa-Roman knew

about any such conduct.

The government offers a different take on the court's

"association with convicted felons" comment, arguing to us on

appeal that "it is possible that, when 'assessing [] Figueroa's

risk to the community once he is released,' the district court

meant to refer to Figueroa's and his co-defendants' decision to

engage in a joint, week-long crime spree that resulted in felony

convictions, rather than any of their prior crimes," particularly

4 After Figueroa-Roman's September 6, 2019 change-of-plea hearing, his comrades followed suit and changed their pleas to guilty as well, with plea agreements following closely on the heels of each change-of-plea hearing (with all hearings taking place before this same district court judge).

- 5 - when the record bears out that they were childhood friends. Most

importantly, says the government, there were other legally

adequate reasons for the court's upward variance (like the violence

involved in the offense and the victim impact statements).

From our vantage point, we perceive a few aspects of

this "convicted felons" comment that obstruct meaningful appellate

review.

For starters, we conclude it is unclear what the

sentencing court meant when it referred to Figueroa-Roman's

"association with convicted felons." That item in the list of

things the court was balancing has ambiguities baked into it that

spark a spate of questions -- mainly of the "who," "what," and

"when" variety. Are the "convicted felons" Figueroa-Roman's

carjacking codefendants? And was the court saying those

codefendants were felons at the time of the offense? At the time

of Figueroa-Roman's sentencing? Post-release (and/or likely to

associate upon that release)? Was the court referring to some

other convicted felons? At what point is Figueroa-Roman doing the

"associat[ing]" with these felons, whomever they are? And what is

the significance of any such "association" when Figueroa-Roman had

no criminal record at the time of his offense and (unlike with

some repeat offenders, for instance) the record reflects no

prohibition on this first-time-offender's association with anyone?

- 6 - All of this to say, the court's comment begs many questions, and

the transcript can reasonably be read in different ways.

Relatedly, not only is the meaning of the court's comment

unclear, but also the manner in which we'd review it and its role

in the sentencing determination is murky. Because we do not know

what the court meant when it made this comment, it's not clear to

us whether it was supposed to be a reference to a certain fact, a

new finding of fact, or something else. This could impact our

standard of review.

And likewise unclear is how, if at all, we might

extrapolate the role this "association with convicted felons"

consideration played in the sentencing -- without an understanding

of what the court meant by it, we cannot assess whether and to

what extent it affected the sentencing explanation. See, e.g.,

United States v. Colón-Cordero,

(1st Cir. 2024)

("But on this record, we do not know precisely to what degree the

court relied on its erroneous . . . fact, whether based on a

misunderstanding of the record or extrapolated from the record, in

fashioning the resulting sentence."); United States v.

Navarro-Santisteban,

(1st Cir. 2023) (remanding

because we couldn't "extricate the influence" of the court's

- 7 - erroneous reliance on tainted hearsay evidence "from the court's

broader sentencing rationale").

Under some circumstances and at certain junctures, we

sometimes can discern what a sentencing court meant by making

reasonable inferences and using the context available to us from

our cold appellate vista. See, e.g., Colón-Cordero,

(collecting examples and discussing how, when trying to pin

down the adequacy of a sentencing rationale, we can sometimes draw

inferences from the sentencing record). Not so here. The

transcript is susceptible to various plausible understandings of

what was said. See United States v. Serrano-Berríos,

(1st Cir. 2022) (remanding for clarification when it

was "unclear what the court meant by" a statement that was open to

multiple interpretations and not clearly tethered to the

sentencing record); United States v. Cáceres-Cabrera,

(1st Cir. 2007) (remanding for clarification when "[t]he

sentencing transcript can be read to support either side's argument

as to the court's reasons").

All told, this confusion -- from basic meaning to the

downstream effects of that uncertainty on our lens of review --

has a material impact on our ability to undertake meaningful

appellate review. See, e.g., United States v. Carrión-Meléndez,

- 8 -

(1st Cir. 2022) (observing that appellate review

is frustrated when the reasons underpinning a ruling are unclear).

Accordingly, in need of the aforementioned clarity to

proceed, the most prudent course here is for us to vacate and

remand so the court can clarify what it meant by Figueroa-Roman's

"association with convicted felons." See

(taking a similar

approach, deciding "that it is prudent to give the District Court

the opportunity to clarify and, if appropriate, reconsider the

precise basis for" its rationale relative to the application of a

sentencing enhancement); see also United States v. Gilman,

(1st Cir. 2007) ("[I]f we are in fact unable to

discern from the record the reasoning behind the district court's

sentence, appellate review is frustrated and 'it is incumbent upon

us to vacate, though not necessarily to reverse' the decision below

to provide the district court an opportunity to explain its

reasoning at resentencing." (quoting United States v. Feliz,

(1st Cir. 2006)) (citing United States v. McDowell,

(1st Cir. 1990))); United States v. Levy,

(1st Cir. 1990) ("Where, as here, the record admits

of possible ambiguity, our practice is to remand for a limited

purpose.").

To be quite clear, we leave untouched and intimate no

view on the adequacy of the court's sentencing explanation or any

other question raised in this appeal. All we are saying today is

- 9 - that we find ourselves unable to proceed to a meaningful review of

aspects of this appeal without this "association with convicted

felons" quandary cleared up. And that is so even if we are on

plain error review, given the potential for prejudice depending on

the statement's intended meaning. Cf. Gilman,

("Even if the shortfall of the court's explanation in that respect

is viewed as an obvious error, that would leave Gilman standing

only at second base. To make it to home plate by establishing

plain error, Gilman must round each of the bases as to which he

carries the burden of persuasion. . . . While in this instance

the district court's statement at the sentencing hearing itself

was inadequate as a matter of law, the record provides no reason

to believe that remanding this case to the district court for

resentencing would in any way alter Gilman's sentence.").

For these reasons, we vacate the sentence and remand to

the district court for clarification in accordance with this

opinion. This panel retains jurisdiction over this matter.

- 10 -