United States of America v. Luis F. Guadalupe-Rivera

United States Court of Appeals
For the First Circuit
No. 05-1939
UNITED STATES OF AMERICA,
Appellee,
v.
LUIS F. GUADALUPE-RIVERA,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Hector M. Laffitte, U.S. District Judge]
Before
Lynch, Lipez, and Howard, Circuit Judges.
Laura Maldonado Rodríguez for appellant.
Nelson Pérez-Sosa, Assistant United States Attorney, with whom
Rosa Emilia Rodriguez-Velez, United States Attorney, and Mariana E.
Bauzá-Almonte, Assistant United States Attorney, were on brief, for
appellee.
August 30, 2007

-- 1 of 15 --

-2-
LIPEZ, Circuit Judge. Appellant Luis Guadalupe-Rivera
("Guadalupe") pled guilty to charges involving drug distribution
and firearm violations. He now challenges his sentence, contending
that (1) the district court abused its discretion in refusing to
conduct an evidentiary hearing on whether certain prior convictions
on which the court based his sentence were actually part of the
instant offense; and (2) the court erred in relying on his
confidential juvenile record without disclosing the content of that
record to him, in violation of Federal Rule of Civil Procedure 32.
As to the former, we find no abuse of discretion; as to the latter,
the court's error was harmless. Consequently, we affirm
Guadalupe's sentence.
I.
On July 17, 2003, a grand jury returned a superseding
indictment charging Guadalupe and twenty-six other individuals with
various violations relating to a drug distribution network. The
counts involving Guadalupe alleged conspiracy to possess with
intent to distribute and distribution of controlled substances near
a school or public housing project, in violation of 21 U.S.C. §§
841, 846, and 860 (Count One); conspiracy to use, carry or possess
firearms in violation of 18 U.S.C. § 924(c), (o) (Count Two); and
possession of a firearm in a school zone, in violation of 18 U.S.C.
§§ 2 and 922(q)(2) (Count Three).

-- 2 of 15 --

-3-
Guadalupe pled guilty to Counts One and Two. As part of
the plea agreement, the parties stipulated to the following
underlying facts:
From on or about June, 2001, and continuing up
to March 13, 2003, the defendant . . . did
agree with others to possess controlled
substances at various drug distribution
locations operating within the Nemesio R.
Canales Public Housing Project . . . . In
particular, the defendant was a manager of a
cocaine base ("crack") drug point, a runner,
and a shift supervisor at the Nemesio R.
Canales Public Housing Project.
. . .
From on or about September 12, 2001,
continuing up to March 13, 2003, [the
defendant] did knowingly, intentionally, and
unlawfully conspire and agree with diverse
other persons to possess, use, brandish, or
carry a shotgun, a .357 revolver, a .9mm
pistol, and an AR-15 semi-automatic assault
rifle, in furtherance of the drug-trafficking
conspiracy mentioned above.
The plea agreement explicitly stated that there was no stipulation
as to his criminal history category. With respect to the
sentencing recommendation, the agreement explained that if
Guadalupe’s criminal history category was II or less, the
government would recommend a sentence of 168 months' imprisonment;
otherwise, the sentencing recommendation would be the lower end of
the applicable Sentencing Guidelines range.
The Presentence Report (“PSR”) stated that Guadalupe's
prior convictions yielded eight criminal history points: three
points for a 1998 conviction involving weapons violations, violence
against public authority, and aggravated battery; two points for a

-- 3 of 15 --

The Puerto Rico Rules of Procedure for Minors' Matters, P.R. 1
Laws Ann. tit. 34, § 2237(d), require that juvenile records be kept
confidential subject to certain limited exceptions.
-4-
1999 conviction for weapons violations; two points for a 2002
conviction for possession of marijuana; and one point for a
juvenile offense, the record of which the court received on
condition of confidentiality. The PSR also added two criminal 1
history points because Guadalupe was on probation at the time he
committed the instant offenses, see U.S.S.G. § 4A1.1(d), and two
more points because he committed the instant offenses less than two
years after release from imprisonment, see U.S.S.G. § 4A1.1(e).
Thus, Guadalupe's record yielded a total of twelve criminal history
points, resulting in a criminal history category of V. Based on
this criminal history category and a total offense level of thirty-
four, the PSR stated that the applicable Sentencing Guidelines
range was 235 to 293 months' imprisonment.
During a change of plea hearing in November 2004,
Guadalupe objected to the dates of the firearms conspiracy alleged
in the indictment, arguing that the conspiracy began earlier than
September 2001. He subsequently filed an objection to the PSR,
arguing that his two prior convictions for possession of weapons in
1998 and 1999 were "a result of his involvement in the conspiracy."
Thus, he contended, those convictions should not count as separate
offenses in his criminal history. He asked the district court to
conduct an evidentiary hearing to obtain testimony from two

-- 4 of 15 --

-5-
cooperating government witnesses, Edna Diaz Pastrana and Leonor
Cuadrado Figueroa, claiming that they would verify that the prior
convictions were part of the conspiracy alleged in the indictment.
He attached copies of notes in Spanish taken during law enforcement
interviews with the witnesses, asserting that these notes supported
his claim.
At the sentencing hearing on May 16, 2005, defense
counsel renewed the objection to counting the weapons convictions
in Guadalupe's criminal history and again alleged that the
testimony of the two government witnesses would establish that the
conspiracy began prior to the dates specified in the indictment.
The court declined to hold an evidentiary hearing for such
testimony, and counted the convictions toward the criminal history.
Also at the sentencing hearing, defense counsel objected to the
court's consideration of confidential information regarding
Guadalupe's juvenile history, asserting that she should have access
to the information if the court intended to rely on it. However,
the court stated that "I don't think it would change anything,"
and included the juvenile history in its sentencing calculation.
Finally, Guadalupe contended that the 2002 marijuana conviction was
part of the instant conspiracy. The court accepted that
contention.

-- 5 of 15 --

The two points added for the marijuana conviction were 2
removed, as well as the two points added under U.S.S.G. § 4A1.1(e)
because the instant offense had occurred less than two years after
Guadalupe was released after serving his term of imprisonment for
the marijuana conviction. The changes left eight criminal history
points, with a resulting criminal history category of IV.
Guadalupe's plea agreement also contained a provision 3
waiving his right to appeal. Although the government argued the
waiver issue in its opening brief, it conceded at oral argument and
confirmed in an "Informative Motion" submitted the following day
that the waiver of appeal language in the plea agreement did not
conform to the understanding of the parties. For that reason, the
government withdrew its waiver of appeal argument.
-6-
With the marijuana conviction excluded, Guadalupe's
criminal history category was reduced to IV, yielding a Sentencing 2
Guidelines range of 210 to 262 months' imprisonment. The court
then sentenced Guadalupe to concurrent terms of imprisonment of 222
months on each count. Guadalupe appeals, contending that (1) the
district court abused its discretion in refusing to hold an
evidentiary hearing for the testimony of the government witnesses;
and (2) the district court erred in considering confidential
information from his juvenile record without disclosure of that
information to him and his counsel.3
II.
A. Evidentiary Hearing
The Sentencing Guidelines instruct courts to determine an
offender's criminal history category by adding a specified number
of points "for each prior sentence of imprisonment," U.S.S.G. §
4A1.1; the length of the prior sentence determines the number of

-- 6 of 15 --

-7-
points added. The Sentencing Guidelines further define a prior
sentence as "a sentence imposed prior to sentencing on the instant
offense, other than a sentence for conduct that is part of the
instant offense." U.S.S.G. § 4A1.2 cmt. n.1 (emphasis added). In
light of this provision, Guadalupe argues that the conduct leading
to his 1998 and 1999 weapons convictions was part of the conduct
comprising the instant conspiracy and should not have been included
in his criminal history calculation.
Guadalupe contends that the district court should have
held an evidentiary hearing to consider the testimony of
cooperating government witnesses Diaz and Cuadrado, who he claims
would testify that his weapons violations in 1998 and 1999 were
part of the instant conspiracy. The inclusion of the 1998 and 1999
weapons convictions made a substantial difference in the
calculation of Guadalupe's criminal history. Without those two
offenses, Guadalupe would have had only three criminal history
points, rather than the eight that the district court included in
its calculation. This would have resulted in a criminal history
category of II, and pursuant to the plea agreement, the government
would have recommended a sentence of only 168 months rather than
the 222 months that the court imposed. Before the district court,
Guadalupe made this assertion in his objection to the PSR and
attached Spanish language notes from law enforcement interviews
with these witnesses. We review the district court's decision to

-- 7 of 15 --

As noted, the law enforcement interview notes that Guadalupe 4
attached to his objection to the PSR were in Spanish and were
unaccompanied by English translations. Federal litigation in
Puerto Rico must be conducted in English, 48 U.S.C. § 864, and,
"[w]hen a district court accepts foreign-language documents without
the required English translations, an appellate court cannot
consider the untranslated documents on appeal." Dávila v.
Corporacion de P.R. para la Difusion Publica, ___ F.3d ___, 2007 WL
2253531, at *2 (1st Cir. Aug. 7, 2007); Fed. R. App. P. 10. Thus,
even though the government submitted translations of the notes on
appeal, we cannot consider them. Guadalupe offers no explanation
for his omission of translations before the district court.
-8-
deny an evidentiary hearing at sentencing for abuse of discretion.
See United States v. McAndrews, 12 F.3d 273, 279 (1st Cir. 1993).
There may be circumstances in which a court should hear
evidence regarding a prior conviction to determine whether the
conduct underlying that conviction is part of the instant offense.
However, under the circumstances present here, we cannot conclude
that the district court abused its discretion in refusing to hear
testimony from Diaz and Cuadrado. Guadalupe offered no evidence to
indicate that these witnesses would testify that his prior
convictions were part of the instant conspiracy. His motion 4
objecting to the PSR contained the bare allegation that these
witnesses would testify that the conspiracy began before the 2001
date alleged in the indictment. At the sentencing hearing,
Guadalupe's counsel argued that the "indictment doesn't control the
scope" of the conspiracy and stated that Guadalupe would testify
that he entered the conspiracy in February 1998. However, counsel
did not even mention Cuadrado by name at the hearing, and mentioned

-- 8 of 15 --

-9-
Diaz only to state that she would testify that Guadalupe's 2002
marijuana conviction was part of the instant conspiracy.
In short, there was no evidence to support counsel's bare
allegations that testimony from Diaz and Cuadrado would reveal that
Guadalupe's prior weapons convictions stemmed from conduct that was
part of the instant conspiracy. Thus, we conclude that the
district court did not abuse its discretion in declining to hold an
evidentiary hearing.
B. Juvenile Record
Guadalupe also argues that the district court improperly
relied on his confidential juvenile record in sentencing him
without sufficiently disclosing the content of that record to him,
in violation of Federal Rule of Criminal Procedure 32. We review
de novo a district court's compliance with Rule 32. See, e.g.,
United States v. Baldrich, 471 F.3d 1110, 1112 (9th Cir. 2006). If
an error occurred, we will remand for resentencing if that error
was not harmless. See, e.g., United States v. Hamad, ___ F.3d ___;
2007 WL 2049867, at *9 (6th Cir. July 19, 2007) (applying harmless
error review after finding a violation of Rule 32).
A federal court may consider an offender's juvenile
record in determining a sentence. See United States v. Gonzalez-
Arimont, 268 F.3d 8, 15 (1st Cir. 2001). The Sentencing Guidelines
provide, inter alia, that the sentencing court should
(A) add 2 points . . . for each adult or
juvenile sentence to confinement of at least

-- 9 of 15 --

-10-
sixty days if the defendant was released from
such confinement within five years of his
commencement of the instant offense;
(B) add 1 point . . . for each adult or
juvenile sentence imposed within five years of
the defendant's commencement of the instant
offense not covered in (A).
U.S.S.G. § 4A1.2(d)(2). Thus, it was proper for the district court
to include Guadalupe's juvenile record in its criminal history
calculation.
Under the Puerto Rico Rules of Procedure for Minors'
Matters, however, juvenile records must be sealed, and access to
them is strictly limited. See P.R. Laws Ann. tit. 34, § 2237(d).
Such confidential information, if used in federal sentencing, is
subject to certain procedural requirements. Federal Rule of
Criminal Procedure 32 states that a PSR "must exclude . . . any
sources of information obtained upon a promise of confidentiality."
Fed. R. Crim. P. 32(d)(3). However, Rule 32 also states that at
sentencing the court "must give to the defendant and an attorney
for the government a written summary of — or summarize in camera —
any information excluded from the presentence report under Rule
32(d)(3) on which the court will rely in sentencing, and give them
a reasonable opportunity to comment on that information." Fed. R.
Crim. P. 32(i)(1)(B).
Regarding Guadalupe's juvenile conviction, the PSR
stated, in full:

-- 10 of 15 --

-11-
The Court has received information regarding
this defendant's prior juvenile record under
the promise of confidentiality and non-
disclosure pursuant to a local court order.
As such, complete disclosure of the subject
information, which under [sections
4A1.2(d)(2)(B) and (a)(2) of the Sentencing
Guidelines] affects the computation of his
criminal history category is withheld.
Then, at the sentencing hearing, the district court stated that it
"has received information that is confidential about this
defendant's prior criminal record . . . . This will also be
considered." Guadalupe's counsel objected, stating: "I am counsel
and I should have that information available . . . . If you're
going to consider it, we should have an opportunity to examine it
or rebut it." The court responded: "I don't think it would change
anything, counsel. It says that -- it was two counts of violation
of the weapons law. So that's it. And this will go on the record.
So I will consider that in my sentencing."
On appeal, the government contends, as a preliminary
matter, that Guadalupe did not preserve his challenge to the
district court's reliance on the confidential information. It
argues that, although defense counsel objected at sentencing to the
district court's failure to disclose the details of Guadalupe's
juvenile record to her, she did not object to the one point that
was assessed for Guadalupe's juvenile record, either in his
objection to the PSR or at sentencing. We need not resolve this
issue, however, because even if the challenge was properly

-- 11 of 15 --

-12-
preserved, the court's error in not disclosing the content of
Guadalupe's juvenile record was harmless.
The Supreme Court has explained that the purpose of Rule
32 is to ensure "focused, adversarial development of the factual
and legal issues relevant to determining the appropriate Guidelines
sentence." Burns v. United States, 501 U.S. 129, 134 (1991). It
is essential to this adversarial process that the court provide the
defendant with all information related to his sentence on which the
court intends to rely so that the defendant has adequate
opportunity to contest any inaccuracies or present other relevant
factors. See, e.g., Baldrich, 471 F.3d at 1114 (explaining that
Rule 32 requires that "all facts relevant to the defendant's
sentence be provided to the defendant for adversarial testing");
United States v. Pabon-Cruz, 321 F. Supp. 2d 570, 573 (S.D.N.Y.
2003)("[T]he process of disclosure, comment, and judicial ruling
provided by Rules 32(e)-(i) is more than adequate to address any
inaccuracy in the PSR. . . . Rule 32 specifically requires the
Court to disclose to the defendant any information that the Court
will rely on that is not in the PSR . . . ."). Given this
underlying policy rationale, the initial question in determining
compliance with Rule 32 is whether the court has provided the
defendant with enough information to allow the defendant to have a
"reasonable opportunity to comment" on that information. Fed. R.
Crim. P. 32(i)(1)(B).

-- 12 of 15 --

The government's argument that Guadalupe's counsel should 5
have obtained the juvenile records herself is unavailing. The
Rules of Procedure for Minors’ Matters do provide that juvenile
records "will be accessible for inspection by the minor's legal
counsel after being duly identified and in the place designated for
it." P.R. Laws Ann. tit. 34, § 2237(d). However, Rule 32 requires
that the court provide the defendant with a written summary of the
confidential information before it, and there is no exception to
this requirement simply because the defendant may have alternative
avenues of obtaining the confidential information.
-13-
Ensuring a "reasonable opportunity to comment" requires
the court to give more information to defense counsel than the
cursory statement the district court provided here, which merely
informed counsel that Guadalupe's juvenile record involved two
counts of violations of the weapons laws. See, e.g., Hamad, 2007
WL 2049867, at *8 ("Because the summary did not refer to any
specific incident or name its source(s), it did not give [the
defendant] a 'reasonable opportunity' to rebut the information or
otherwise question its accuracy."). Puerto Rico law indicates that
a defendant may have access to the confidential information on
which the district court relied in this case, see P.R. Laws Ann.
tit. 34, § 2237(d), and federal law makes clear that the court
should provide that information to the defendant, see Fed. R. Crim.
P. 32(i)(1)(B). Moreover, given that the primary purpose of the 5
Puerto Rico Rules of Procedure for Minors' Matters is to protect
the privacy of juvenile offenders, there was no pragmatic reason
for the court to withhold Guadalupe's records from him and his
counsel. In light of these statutory provisions and the policy

-- 13 of 15 --

The government also argues that any error was harmless 6
because even if Guadalupe's juvenile conviction was removed from
the criminal history calculation, he would still have seven
criminal history points, which would still result in a criminal
history category of IV. Thus, there would be no difference in the
applicable sentencing range. However, having resolved the harmless
error question on other grounds, we need not address this alternate
-14-
underlying them, the district court erred in failing to give
Guadalupe a summary of the information contained in his juvenile
record.
Despite this error, the court's partial disclosure, under
the circumstances of this case, was harmless because Guadalupe
still had a sufficient basis for disputing the violations.
Guadalupe's submissions indicate that he in fact had substantial
familiarity with his own criminal history. His reply brief
acknowledges that he and his attorney "were aware of his juvenile
criminal record to some extent" and that "his actions as a juvenile
were encompassed in the conspiracy for which he was found guilty."
Guadalupe thus knew enough about his juvenile history to argue to
the district court that this history should not be included as a
separate offense in his sentencing. In light of this conceded
knowledge, we see no reason to believe that the court's failure to
offer a full explanation of Guadalupe's juvenile record impaired
his ability to contest the court's reliance on that record in its
sentencing. See Hamad, 2007 WL 2049867, at **9-10. Thus, the
district court's failure to disclose this information to Guadalupe
was harmless.6

-- 14 of 15 --

rationale.
-15-
III.
We conclude that the district court did not abuse its
discretion in declining to hold an evidentiary hearing for the
testimony of cooperating government witnesses regarding the date of
inception of the conspiracy. We further conclude that the
deficiency in the information the court disclosed to Guadalupe and
his counsel regarding his juvenile record was harmless error.
Thus, we affirm Guadalupe's sentence.
So ordered.

-- 15 of 15 --