United States v. Jorge Berrios-Miranda, a/k/a Yoyo

United States Court of Appeals
For the First Circuit
No. 17-1543
UNITED STATES,
Appellee,
v.
JORGE BERRIOS-MIRANDA, a/k/a Yoyo,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Carmen Consuelo Cerezo, U.S. District Judge]
Before
Lynch, Thompson, and Barron,
Circuit Judges.
Raymond L. Sanchez Maceira on brief for appellant.
Rosa Emilia Rodríguez-Vélez, United States Attorney, Mariana
E. Bauzá-Almonte, Assistant United States Attorney, Chief,
Appellate Division, and Mainon A. Schwartz, Assistant United
States Attorney, U.S. Attorney's Office, on brief for appellee.
March 22, 2019

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THOMPSON, Circuit Judge. Today we turn to the final
chapter of Jorge Berrios-Miranda's ("Berrios") sentencing
challenge, in which he contends that the district court violated
his procedural due process rights when it denied his request to
challenge the reliability of his victim's testimony by cross-
examining the victim at Berrios's resentencing hearing. Spying no
error in the district court's handling of the matter, we affirm.
Background1
We provide the following pertinent details to flesh out
the backdrop for this appeal.
Berrios was one of several men who kidnapped and held
hostage Luis F. Bello-Javier ("the victim") in August 2008. Over
the course of the several days they held the victim against his
will, the kidnappers regularly beat him and deprived him of food.
After the FBI got involved, though, the kidnappers released the
victim and were apprehended. Pursuant to a plea agreement, Berrios
pleaded guilty to kidnapping for ransom in violation of 18 U.S.C.
§§ 1201(a)(1) and (2).
1 We draw the facts from the record before us on appeal, in
particular the uncontested portions of the pre-sentence report
("PSR"), both in its original and amended form, the criminal
complaint to which Berrios pleaded guilty, and the transcript of
the resentencing hearing. See United States v. Lee, 892 F.3d 488,
490 n.1 (1st Cir. 2018) (citing United States v. Santiago-Serrando,
598 Fed. Appx. 17, 18 (1st Cir. 2015)); United States v. Talladino,
38 F.3d 1255, 1258 (1st Cir. 1994) (citations omitted).

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One of Berrios's codefendants proceeded to a trial,
during which Berrios's conduct during the kidnapping was described
not only by the victim, but also by Berrios himself. The victim
detailed how Berrios inflicted serious physical and psychological
injuries on him during the abduction and "mistreated [him] the
most." For his part, Berrios testified that he beat and threatened
to kill the victim, and also placed his gun against the victim's
head to intimidate him. Berrios also laid out how "constantly
with the crowbar of the car [he] continued to torture" the victim,
explaining that, "[t]he majority of the time, the one who was with
[the victim] was me, Jorge Berrios."
This brings us to Berrios's sentencing proceedings
(which postdate the codefendant's trial), in advance of which
Berrios filed a motion requesting a copy of the as-yet-unseen-by-
Berrios transcripts of testimony from his codefendant's trial.
The district-court judge denied the motion, but relied upon the
victim's and Berrios's trial testimony in rejecting the parties'
recommended sentence, instead imposing a harsher sentence due to
the fact that Berrios, according to the victim, had "mistreated
[him] the most."
That led to Berrios's first sentencing challenge before
this court, and we agreed with his position: "the record that was
available to [Berrios] did not otherwise contain the information
used by the district court in imposing the sentence," and the fact

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that the victim testified that Berrios mistreated him more than
anyone else was "both new and significant under our case law," so
we held that the reliance below on the victim's testimony could
not "be deemed harmless." See United States v. Berrios-Miranda,
No. 13-1808 (1st Cir. June 19, 2015) (judgment).
Back in district court for the resentencing hearing,
things didn't play out to Berrios's liking. After the district-
court judge granted Berrios access to the transcripts "relevant to
the mistreatment of the victim by [Berrios]" (the testimony given
by the victim and by Berrios), Berrios moved to compel the
government to produce the victim "to be cross examined by [him]
during [re]sentencing, to contest [the victim]'s statement that
Berrios was: 'the one who mistreated [the victim] the most.'" To
hear Berrios tell it, the victim's statement, which was not
previously subject to cross-examination at trial at all by Berrios,
was "questionable." The district-court judge ordered Berrios to
"explain how further questioning of the victim" would "challenge
as inaccurate and unreliable" the testimony that Berrios's own
statements had "essentially corroborated." Berrios wanted to
challenge the reliability of the victim's statement that he was
the worst of the tormenters: the victim had been blindfolded
during much of the abduction and therefore could not always
reliably identify his aggressors, plus certain details provided at
trial had not come up during the victim's 2009 PSR interview. He

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also hoped to elicit testimony that Berrios saved the victim's
life. The judge denied the motion because cross-examination "would
be a bald attempt to mount an attack to [the victim's] credibility"
that "would only serve to further victimize him," and, in any
event, Berrios was not entitled to cross-examine the victim -- he
had all the relevant information he needed and "had a fair
opportunity to comment on it or otherwise challenge" that
information.
Ultimately, the district-court judge sentenced Berrios
to a within-guidelines term of 136 months -- eight months less
than the previous sentence. In so doing, the judge stated she had
"carefully evaluated" Berrios's "conduct while the kidnapping
victim was in his custody, as it was described at trial, not only
by him but by the victim himself." As part of that, the judge
found that Berrios was the one who "principally" held the victim
and, based on the record, Berrios was responsible for
"mistreat[ing] [the victim] the most." The judge also took into
account Berrios's corroborative testimony: "I told him that if he
screamed, that I was going to kill him"; "I placed [the gun] on
his head"; "I intimidated him"; "[I] torture[d] him mentally."
And now here we are, entertaining Berrios's latest claim
of error: he submits that his procedural due process rights were
violated when the district-court judge denied him the opportunity
to contest misinformation about his treatment of the victim during

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the abduction by cross-examining the "unreliable" victim, and this
led to the imposition of a sentence based on inaccurate
information. Unlike his last sentencing challenge, this one fails.
Standard of Review
We review the sentencing court's interpretation and
application of the sentencing guidelines de novo, the fact-finding
for clear error, and the judgment calls for abuse of discretion.
United States v. Acevedo-López, 873 F.3d 330, 335 (1st Cir. 2017)
(citation omitted).
Discussion
Berrios's appellate contentions boil down to the
argument that his procedural due process rights were trampled when
the district-court judge gave the victim's testimony "full
credibility" without affording Berrios the opportunity to cross-
examine 2 the victim to demonstrate that the testimony was
unreliable. 3 To drive home his point, he casts doubt on the
2 To be clear: Berrios is using the term "cross-examine" very
loosely. Because the government never brought in the victim to
testify at the sentencing hearing, what Berrios actually means by
"cross-examine" is his effort to compel the government to make the
victim available at sentencing so that Berrios might probe the
victim about testimony he gave at the codefendant's trial. This
is not a classic "cross-examination."
3 Berrios advances much of his procedural due process argument
under the three-prong test set forth in Mathews v. Eldridge, 424
U.S. 319, 335 (1976), which we have never used to guide our
analysis in this context. Because we dispose of his arguments on
appeal under our controlling case law in this arena, as we discuss

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testimony's reliability by comparing and contrasting it with the
PSR: in the victim's 2009 interview for Berrios's PSR, the victim
revealed that the kidnappers kicked him in the head daily, struck
him with a wooden stick, and poured water on him, but these details
do not appear in the victim's 2012 trial testimony. Berrios
emphasizes that the victim accused Berrios of "mistreat[ing] [him]
the most" for the very first time during the 2012 trial. He also
presses that several kidnappers abused the victim, but with the
victim often blindfolded, he could not have known who "mistreated
[him] the most." Berrios submits that he should have been allowed
to cross-examine the victim during his sentencing proceedings to
zero in on all of this "questionable" information.
Unsurprisingly, the government disagrees. 4 Because
procedural due process protections at sentencing are narrower than
those prior to the establishment of a defendant's guilt, the
government says that Berrios has no right to cross-examine the
in our primer, we need not weigh in on or employ his suggested
framework.
4 We pause to address a threshold argument advanced by the
government: at his second sentencing, when Berrios accepted as
true the district-court judge's factual findings -- telling the
court through counsel that he had "come to terms with the [c]ourt's
findings in the last sentencing hearing . . . that [Berrios] was
the man who tortured the victim, and he has come to realize that"
-- he waived any argument that he was not the person who mistreated
the victim the most. However, because we can dispose of the case
on other grounds, we assume favorably to Berrios that he has not
waived his arguments.

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victim at the resentencing hearing. Berrios had advance notice of
the trial testimony this time, as well as a chance to challenge it
before he was sentenced. Further, the government argues that it
was proper for the district-court judge, in her substantial
discretion, to consider relevant trial testimony at sentencing,
including trial testimony given without Berrios there to cross-
examine the person testifying.
Primer
At a sentencing hearing, neither the Federal Rules of
Evidence nor the Sixth Amendment right to cross-examination apply,
United States v. Bramley, 847 F.3d 1, 5 (1st Cir. 2017) (citing
United States v. Rodriguez, 336 F.3d 67, 71 (1st Cir. 2003)), and
sentencing judges may consider any evidence with "sufficient
indicia of reliability to support its probable accuracy," United
States v. Cintrón–Echautegui, 604 F.3d 1, 6 (1st Cir. 2010)
(quoting United States v. Zapata, 589 F.3d 475, 485 (1st Cir.
2009)); see also United States v. Doe, 741 F.3d 217, 235-36 (1st
Cir. 2013). Under this approach, the court has considerable leeway
to rely upon "virtually any dependable information." Doe, 741
F.3d at 236 (quoting Cintrón–Echautegui, 604 F.3d at 6). This
even includes "statements which have not been subjected to the
crucible of cross-examination." Acevedo-López, 873 F.3d at 340
(quoting Doe, 741 F.3d at 236). That said, the lower court's
discretion is not boundless and must comport with due process

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demands and the parameters of Rule 32 of the Federal Rules of
Criminal Procedure. 5 Bramley, 847 F.3d at 5. Indeed, due process
requires that a defendant "be sentenced upon information which is
not false or materially incorrect," id. (quoting United States v.
Curran, 926 F.2d 59, 61 (1st Cir. 1991)), and "a defendant must be
provided with a meaningful opportunity to comment on the factual
information on which his or her sentence is based," id. at 6
(quoting United States v. Berzon, 941 F.2d 8, 10 (1st Cir. 1991)).
See also United States v. Kenney, 756 F.3d 36, 49-50 (1st Cir.
2014); United States v. Rivera-Rodríguez, 489 F.3d 48, 55 (1st
Cir. 2007).
Analysis
Having reviewed the district-court judge's pronouncement
of sentence -- which went down after she denied Berrios's request
to first cross-examine the victim -- we see no error. Berrios's
procedural due process rights were not violated by the district-
court judge's decision denying Berrios's request to cross-examine
5 Rule 32 provides, in pertinent part, that the court must
provide defendants "any information excluded from the presentence
report . . . 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); see also United States v. Rivera-
Rodríguez, 489 F.3d 48, 53 (1st Cir. 2007) (highlighting that the
Supreme Court has instructed that Rule 32 "contemplates full
adversary testing of the issues relevant to a [g]uidelines sentence
and mandates that the parties be given 'an opportunity to comment
upon the probation officer's determination and on other matters
relating to the appropriate sentence.'" (quoting Burns v. United
States, 501 U.S. 129, 135 (1991))).

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the victim because he had no right to do so: as we've already
explained, there is no Sixth Amendment right to cross-examine at
sentencing. Bramley, 847 F.3d at 5 (citing Rodriguez, 336 F.3d at
71). And Berrios had advance access to the PSR and transcripts of
trial testimony (none of which were "new" or unknown to him by
that point), as well as his "meaningful opportunity to comment on
the factual information on which his . . . sentence is based" at
the resentencing hearing, and that's all the due process required
here. Id. at 6 (quoting Berzon, 941 F.2d at 9); see also Kenney,
756 F.3d at 50 (explaining that the lower court's reliance on
testimony from the codefendant's trial was appropriate when the
information was "hardly new" to the defendant and therefore could
not have "taken [him] by surprise at his sentencing") (quoting
Rivera-Rodriguez, 489 F.3d at 55); Rivera-Rodriguez, 489 F.3d at
55 (concluding that information could not be considered "new" or
absent from the record when it had been set forth in the
indictment, PSR, and plea agreement). In fact, the sentencing
judge here really took pains to list the information upon which
she was basing the sentence, which -- especially on the heels of
our remand order -- tells us that she was acutely aware that
Berrios needed to be informed about the information that would
help her craft his sentence. See, e.g., Bramley, 847 F.3d at 8
(observing same).

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And remember, as to the district-court judge's reliance
on the victim's trial testimony, a sentencing judge, in her
substantial discretion, can consider any evidence with sufficient
indicia of reliability and can rely upon "virtually any dependable
information." Doe, 741 F.3d at 236 (quoting Cintrón–Echautegui,
604 F.3d at 6). Here, the victim's testimony, given under oath,
that Berrios "mistreated [him] the most" was corroborated when
Berrios testified that "the majority of the time the one who was
with [the victim] was me," and he testified in detail about the
various ways in which he physically and psychologically abused the
victim. See Acevedo-López, 873 F.3d at 340 (noting that
reliability can be supported by corroborating evidence); United
States v. Zuleta-Alvarez, 922 F.2d 33, 37 (1st Cir. 1990). Plus,
the resentencing judge presided over Berrios's codefendant's
trial, so she was already familiar with the issues and had been
there to observe the victim's testimony and assess credibility
firsthand. See Acevedo-López, 873 F.3d at 340-41 (citing Zuleta-
Alvarez, 922 F.2d at 37). True, the victim may not have been
cross-examined by Berrios or to Berrios's liking by counsel for
the codefendant, but, as we've said before, "that is not fatal in
and of itself." Id. (citing Doe, 741 F.3d at 236). Truth be told,
even if the victim had not been cross-examined at trial, it would
still be within the district-court judge's discretion, on this
record, to consider the victim's testimony at sentencing. Id. at

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340; see also Zuleta-Alvarez, 922 F.2d at 36; Cintrón–Echautegui,
604 F.3d at 6.
Final Words
The last time this case was before us, we remanded it
because the sentencing judge had relied upon information that had
not previously been available to Berrios, and that had the effect
of depriving him of the opportunity to comment on or otherwise
challenge material information considered by the district court.
But this time around, Berrios was aware of the testimony and he
got his meaningful opportunity to address it during the
resentencing. The district court committed no error in disallowing
cross-examination of the victim at Berrios's resentencing. We
affirm.

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