United States v. Jesus Franquiz-Ortiz

United States Court of Appeals
For the First Circuit
No. 09-1815
UNITED STATES,
Appellee,
v.
JESUS FRANQUIZ-ORTIZ,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[[Hon. José Antonio Fusté, U.S. District Judge]]
Before
Lipez, Howard and Thompson,
Circuit Judges.
Laura Maldonado Rodríguez on brief for appellant.
Rosa Emilia Rodriguez-Velez, United States Attorney, and
Nelson Pérez-Sosa, on brief for appellee.
June 9, 2010

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Per Curiam. This is an appeal from a sentence imposed
upon revocation of supervised release.
Jesus Franquiz-Ortiz (Franquiz) was convicted in 2003 on
a plea of guilty to conspiracy to possess with intent to distribute
heroin, a Class C felony. He was sentenced to serve 46 months of
imprisonment and three years of supervised release. The parties
agree, in their briefs, on the events that led to revocation of the
term of supervised release and the imposition of a sentence of
imprisonment.
After about two years of the term of supervised release
had elapsed, during an unannounced visit in April 2009, the
probation officer found a package containing one pound of marijuana
in Franquiz's car. The probation officer filed a motion for an
order to show cause in regard to revocation.
Franquiz did not challenge the allegation that he had
committed a Grade B violation of a condition of his supervised
release and waived his right to a preliminary hearing. At the
final hearing, the parties presented to the court a joint
recommendation of 12 months of imprisonment without further
supervised release. Under the United States Sentencing Guidelines,
§ 7B1.4(a), the recommendation represented an upward departure from
the advisory guideline range of 4-10 months for a Grade B violation
and a criminal history category (CHC) I. The government offered no
argument in regard to the joint recommendation. Defense counsel

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argued, in support of the recommendation that, while on supervised
release, Franquiz had been steadily employed for two years, had
never tested positive to drugs, had paid his alimony, and had filed
his income tax returns; in addition, this was his first time before
the court in relation to supervised release.
The district court rejected the joint recommendation and
imposed a sentence of 24 months of imprisonment, the statutory
maximum permissible sentence under 18 U.S.C. § 3583(e)(3) and well
above both the applicable advisory guideline range of four to ten
months and the parties' joint recommendation of twelve months. The
court offered the following explanation:
I am not prepared to give him ... a guideline
range sentence.... This individual has been
given opportunities. What he has done is not
de minimis by any means, and I do think that
if I am not going to supervise him anymore, I
am going to make him serve 24 months with no
additional supervision.
(Emphasis added). As the sentence proposed by the parties was, in
fact, itself above the advisory guideline range, this comment does
not reveal the court's rationale for imposing a non-guideline
sentence twice as long.
We review sentences imposed upon revocation of supervised
release under the deferential abuse of discretion standard. United
States v. McInnis, 429 F.3d 1, 4 (1st Cir. 2005). In order to do
so, we need a record that provides a basis for evaluating the
district court's exercise of its broad authority.

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Here, the court's explicit statement is, by itself,
insufficient. Unfortunately, the court's rationale cannot be
inferred from the record on appeal. In the instant case - as in
many revocation cases - the record is thin. It reflects no input
from the probation officer. No information is contained in the
transcript of the preliminary hearing waiver proceedings beyond
that necessary to establish that the waiver was knowing and
voluntary. Neither party submitted a sentencing memorandum or any
other document to the district court. At the revocation hearing,
after suggesting a sentence of 12 months, the AUSA made no other
statement. Nothing in the record refers to any sentencing factor
set out in 18 U.S.C. § 3583. Therefore, we cannot know what facts
and arguments the district court considered. Compare United States
v. Zapata, 589 F.3d 475 (1st Cir. 2009)(record reflected court's
consideration of identifiable facts and arguments).
The lack of an explicit or implicit explanation is of
particular concern when the substantive reasonableness of the
sentence is not immediately apparent. First, it is not clear why
the court regarded the above-guideline joint recommendation of the
parties as insufficient punishment for the breach of trust that the
violation represented. Second, by imposing the statutory maximum
sentence, the court left no room for harsher sentences for those
with higher criminal history categories and more serious
violations. As we noted in United States v. Gallo, 20 F.3d 7, 14

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(1st Cir. 1994); accord United States v. Torres-Marin, 06-1333 (1st
Cir. May 15, 2007)(unpub), the court's calibration of the relevant
factors is an element of the exercise of discretion.
As the record provides an insufficient basis for review
of the procedural and substantive reasonableness of the sentence,
the revocation sentence is vacated and the case is remanded for
resentencing in conformity with this opinion.

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