Sociedad para Asistencia Legal de Puerto Rico

United States Court of Appeals

For the First Circuit

No. 05-2469

UNITED STATES,

Appellee,

ERNESTO CIRILO-MUÑOZ, a/k/a Nesty,

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF PUERTO RICO

[Hon. Héctor M. Laffitte, Senior U.S. District Judge]

Before

Torruella, Lynch, and Lipez,

Circuit Judges.

Mark Diamond for appellant.

Germán A. Rieckehoff, Assistant United States Attorney, with whom H.S. Garcia, United States Attorney, and Nelson Pérez-Sosa, Assistant United States Attorney, were on brief, for appellee.

October 2, 2007

Per Curiam. It is the decision of the court, by vote of the majority, that Ernesto Cirilo-Muñoz's sentence is vacated and remanded. One judge votes for that remand because of his view that the sentence imposed is unreasonable and that the explanation for it is inadequate. The other judge votes for remand because of the inadequacy of the sentencing explanation. One judge dissents from this remand decision.

The majority of the court has rejected defendant's sentencing arguments that the sentence was unreasonable because there was insufficient evidence to convict him and, separately, that the fact of the sentence disparity between defendant and Lugo itself establishes that the sentence is unreasonable. Two judges of the court disagree as to whether there was a Guidelines error as to the minimal participant issue; the third judge finds it unnecessary to address the issue on appeal in light of the remand for resentencing.

This result is explained by the three attached opinions.

TORRUELLA, Circuit Judge. In varied forms and postures, this is the third instance in which we are called upon to pass on the fate of Ernesto Cirilo-Muñoz, also known as "Nesty." See United States v. Mangual-Corchado, 139 F.3d 34 (1st Cir. 1998) (direct appeal); Cirilo-Muñoz v. United States, 404 F.3d 527 (1st Cir. 2005) (petition for review under 28 U.S.C. § 2255 for ineffective assistance of counsel). I suggest that had Cirilo-Muñoz been more discerning as to the company that he kept, or put otherwise, had he not been in the wrong place at the wrong time, Mangual-Corchado, 139 F.3d at 54-55 (McAuliffe, J., dissenting), he would in all likelihood have passed through his otherwise unremarkable life without his existence ever receiving official notice. But as these several appeals attest, such was not to be. Thus, Cirilo-Muñoz appears before us once more seeking justice, this time appealing from the twenty-seven year sentence imposed by the district court after its original draconian judgment of life imprisonment was vacated by us. Cirilo-Muñoz, 404 F.3d at 533. Unfortunately, as I predicted, id. at 535-37 (Torruella, J., concurring), not much was gained by sending the case back to the same district judge.

In what is by now the most notorious central fact of this case, the district judge had sentenced the actual assassin of the victim, who was a Puerto Rico state policeman acting in an undercover capacity, to seventeen

Through these appeals we have been assuming that the murdererwas sentenced to twenty-two years imprisonment, and it istechnically correct that he was sentenced to a "total of 22 years." In fact, however, the Government had recommended a sentence of onlyfifteen years for Counts 1, 2, and 4 (with a mandatory sentence offive years for count 3). See United States of America, MotionPursuant to Section 5K1.1 of the United States SentencingCommission Guidelines Manual and Title 18 of U.S.C. Section3553(e), United States v. Lugo-Sánchez, CR-94-363, at 5, ¶ 3j(Mar. 5, 1996). Ultimately, Lugo was sentenced to only seventeenyears for Count 1 (aiding and abetting in the murder of the officerwhile trying to avoid prosecution for drug offenses), Count 2(aiding and abetting in carjacking the officer's car in the processof which he was murdered), and Count 4 (aiding and abetting in thepossession with the intent to distribute more than 500 grams ofcocaine). See Transcript, Sentencing of José Lugo-Sánchez, UnitedStates v. Lugo-Sánchez, CR-94-363 ("Lugo Sentencing Tr.") at 27(D.P.R. March 5, 1996). Thereafter, the district judge imposed anadditional mandatory consecutive sentence of five years under Count3 (aiding and abetting in the use of a firearm while committing acrime of violence). Id. The only count for which Cirilo-Muñoz wasfound guilty by the jury, and thus the only one appropriate for aconsideration of his allegations as to disparity in sentencing, wasCount 1, for which he was first sentenced to life imprisonment, andon remand, to twenty-seven years imprisonment.

Close years imprisonment for the officer's murder, justifying this lopsided action on the fact that the murderer had turned state's evidence and "cooperated" with the Government. In contrast, in re-sentencing Cirilo-Muñoz, to whom the district judge was able to attribute no higher appellation than that of a "minor" participant in the perpetration of the crime for which he was convicted, see U.S.S.G. § 3B1.2(b),

"Based on the defendant's role in the offense, decrease theoffense level as follows: . . . (b) If the defendant was a minorparticipant in any criminal activity, decrease by 2 levels." U.S.S.G. § 3B1.2(b). The Sentencing Guidelines define a minorparticipant as a defendant "who is less culpable than otherparticipants, but whose role could not be described as minimal." U.S.S.G. § 3B1.2 app. note 5.

Close the district judge "reduced" Cirilo-Muñoz's life sentence to "only" twenty-seven years of incarceration.

Cirilo-Muñoz was also sentenced to four years of supervisedrelease, ordered to participate in a drug-testing program, and wasassessed $50.00 in penalties. See Amended Judgment in a CriminalCase, United States v. Cirilo-Muñoz, CR-94-363 at 3-5 (D.P.R.Aug. 22, 2005).

Close This results in a sentence imposed on the "minor" aider and abettor that is 59% higher than that of the actual killer. Leaving aside the fact that the imposition of a sentence of twenty-seven years imprisonment on a minor participant in this case is grossly unreasonable, the absurdity of this unjustified disparity is further highlighted by the events surrounding this grisly murder, including the assassin's actions in that respect, and Cirilo-Muñoz's minimal involvement in this unfortunate event. This is strikingly evident if one considers that Cirilo-Muñoz was found guilty of only the aiding and abetting charge with regard to Count 1, having been absolved by the jury of both the carjacking and weapons offenses. Moreover, there was a dearth of evidence to sustain even the aiding and abetting charge because of Cirilo-Muñoz's lack of prior knowledge of the assassin's plans or intentions, or of his engaging in any deliberate action in aid or support of the same before the murder of the police agent by the actual killer.

Predictably, given the sentence imposed after remand, this appeal ensued in which Cirilo-Muñoz claims, in substance, that his sentence is unreasonable (1) because of the failure of the district judge to grant him a further reduction in his sentence notwithstanding that the evidence showed him to be a "minimal" participant in the perpetration of the offense for which he was convicted, see U.S.S.G. § 3B1.2(a),

"Based on the defendant's role in the offense, decrease theoffense level as follows: . . . (a) If the defendant was a minimalparticipant in any criminal activity, decrease by 4 levels." U.S.S.G. § 3B1.2(a). The Sentencing Guidelines define minimalparticipants as "defendants who are plainly among the leastculpable of those involved in the conduct of a group." U.S.S.G.§ 3B1.2 app. note 4.

Close (2) because of the failure of the district judge to adequately consider and apply the factors established in 18 U.S.C. § 3553(a)

"The court shall impose a sentence sufficient, but notgreater than necessary, to comply with the purposes set forth inparagraph (2) of this subsection. The court, in determining theparticular sentence to be imposed, shall consider--

(1) the nature and circumstances of the offense and the historyand characteristics of the defendant;

(2) the need for the sentence imposed--

(A) to reflect the seriousness of the offense, to promoterespect for the law, and to provide just punishment for theoffense;

(B) to afford adequate deterrence to criminal conduct;

(D) to provide the defendant with needed educational orvocational training, medical care, or other correctional treatmentin the most effective manner;

(3) the kinds of sentences available;

(4) the kinds of sentence and the sentencing range establishedfor--

(A) the applicable category of offense committed by theapplicable category of defendant as set forth in the guidelines--

(i) issued by the Sentencing Commission pursuant to section994(a)(1) of title 28, United States Code, subject to anyamendments made to such guidelines by act of Congress (regardlessof whether such amendments have yet to be incorporated by theSentencing Commission into amendments issued under section 994(p)of title 28); and

(ii) that, except as provided in section 3742(g), are ineffect on the date the defendant is sentenced; or

(B) in the case of a violation of probation or supervisedrelease, the applicable guidelines or policy statements issued bythe Sentencing Commission pursuant to section 994(a)(3) of title28, United States Code, taking into account any amendments made tosuch guidelines or policy statements by act of Congress (regardlessof whether such amendments have yet to be incorporated by theSentencing Commission into amendments issued under section 994(p)of title 28);

(5) any pertinent policy statement--

(A) issued by the Sentencing Commission pursuant to section994(a)(2) of title 28, United States Code, subject to anyamendments made to such policy statement by act of Congress(regardless of whether such amendments have yet to be incorporatedby the Sentencing Commission into amendments issued under section994(p) of title 28); and

(B) that, except as provided in section 3742(g), is in effecton the date the defendant is sentenced.

(6) the need to avoid unwarranted sentence disparities amongdefendants with similar records who have been found guilty ofsimilar conduct; and

(7) the need to provide restitution to any victims of theoffense."

Close when determining his re-sentence, (3) by reason of the disparity in the sentence imposed after remand when it is compared to that received by the "key culprit" to the murder, and lastly, (4) because his constitutional right against excessive punishment is violated by his being sentenced for a crime for which he is innocent as a matter of law.

I. The Facts

I am compelled to return to where I left off in my last intervention in this matter. Cirilo-Muñoz, 407 F.3d at 538 (Torruella, J., concurring). I then made reference to a quote from Gothe to the effect that, "[n]othing is more damaging to a new truth than an old error,"

Gothe, Spruche in Prosa.

Close for if anything is consistently obvious throughout the tortuous path of this case it is how the previous errors committed by the controlling participants have haunted it, and have unjustly stacked the deck against Cirilo-Muñoz and obstructed the search for the truth.

The record is crystal clear that the Government commenced this case focusing on Cirilo-Muñoz as the prime suspect of the murder of the undercover police agent, Iván Mejías-Hernández (Mejías). This occurred because the actual perpetrator of the murder, José Lugo-Sánchez (Lugo), fingered Cirilo-Muñoz as the person who killed Mejías in an attempt to divert attention away from himself. This started on November 9, 1994, during the course of an interview with F.B.I. Special Agents René F. Medina (Medina) and Manuel Pérez, Jr. (Pérez), in which Lugo told the agents that on November 1, 1994, Cirilo-Muñoz and Saúl Mangual-Corchado (Saúl) accosted Mejías, whom Lugo said Cirilo-Muñoz suspected of being a police informant.

The agents' Report (also known as a "302 Report") is part ofthe record in this case.

Close Lugo falsely claimed that Cirilo-Muñoz held a gun to Mejías and forced Mejías into his own car, a white Suzuki, and thereafter left the area with him and Saúl in the Suzuki, followed by a black Oldsmobile. Lugo told the F.B.I. agents that the following day he heard of Mejías's murder on television.

Later that same day, Lugo gave a second false version of the murder of agent Mejías to the F.B.I. This time, although admitting to some participation in the events surrounding Mejías's murder, Lugo continued to implicate Cirilo-Muñoz, whom he depicted as the proponent and leader of the group, claiming that Cirilo-Muñoz had told him that he was going to take Mejías and kill him, and needed to have Lugo and Luis Antonio Ramírez-Ynoa (Tony) follow in the black Oldsmobile to pick them up afterwards.

Based on the information provided by Lugo to the F.B.I. in these two interviews, on November 23, 1994, Agent Medina appeared before a grand jury and gave testimony which substantially tracked the information given to him and Pérez by Lugo, implicating Cirilo-Muñoz as the perpetrator of Mejías's murder and the carjacking of his automobile.

See Transcript of "Testimony of René F. Medina, Grand JuryInvestigation, Before the Grand Jury, Federal Building, Hato Rey,Puerto Rico" (D.P.R. November 23, 1994). This transcript is alsoin the record of the case.

Close At the time of his appearance before the grand jury, as will be presently discussed, it is not clear whether Agent Medina was totally unaware that the information given to him by Lugo on November 9 regarding Cirilo-Muñoz's actions and his alleged complicity in the murder of Mejías and the carjacking of Mejías's car, were almost completely false.

See Trial Transcript, United States v. Cirilo-Muñoz, CR-94-363 ("Trial Tr.") at vol. VI, pp. 654-61, 664-69, 674-75 (D.P.R.1995).

Close In any event, based on Agent Medina's testimony, the grand jury issued an indictment on November 23, 1994.

The indictment that issued was never superseded, and thus this indictment (based on Lugo's fabrications) is the accusation on which the case against Cirilo-Muñoz was tried. Furthermore, Lugo's original story continued to dictate the Government's actions and its posture before the district court, a situation which in turn has greatly influenced the district court's actions.

The indictment charged in Count 1 that on November 1, 1994, Lugo, Cirilo-Muñoz, Saúl, and Ramírez-Ynoa aided and abetted each other "during the commission of, and while attempting to avoid apprehension . . . for a felony drug violation, to wit: possession with intent to distribute cocaine," by killing and/or counseling the intentional killing of Mejías-Hernández, a local law enforcement officer engaged in the performance of his official duties, in violation of 21 U.S.C. § 848(e)(1)(B) and 18 U.S.C. § 2. In Count 2, the same persons were charged with aiding and abetting each other in taking Mejías's motor vehicle by force, to wit, forcing Mejías into the car at gunpoint and causing his death, all in violation of 18 U.S.C. § 924(c)(1) and 18 U.S.C. § 2. Count 3 charges them with aiding and abetting each other in the use of a firearm while committing a crime of violence, to wit, the carjacking, in violation of 21 U.S.C. § 848(e)(1)(B) and 18 U.S.C. § 2. Count 4 charged only Lugo and Saúl with aiding and abetting each other in possessing with the intent to distribute 500 grams or more of cocaine, a violation of 21 U.S.C. § 841(a)(1) and 18 U.S.C. § 2.

As previously stated, it is not clear whether the Government knew that Lugo's story was fabricated before the indictment against Cirilo-Muñoz was sought. According to a 302 report dictated by Agent Medina the day before he testified before the grand jury,

This report is also in the record of the case.

Close he again met with Lugo on November 22 in the Guaynabo Metropolitan Detention Center, a federal facility, in the presence of Lugo's attorney and the Assistant U.S. Attorney working on the case. At that time, Lugo stated that his earlier statements "on November 9, 1994 were accurate as to his involvement with Ernesto Cirilo-Muñoz . . . . [I]n the murder of Officer Mejías . . . however Lugo . . . indicated that he had withheld information on other subjects that own and operate the drug point." The report further indicates that Lugo said that his previous statements to the F.B.I. about what Cirilo-Muñoz had told him on November 1 regarding Mejías, "had not been accurate." Lugo stated that what Cirilo-Muñoz had actually said was, "[F]ollow us so we can take this man down." Lugo stated that he had been traveling with "Tony" in a black Oldsmobile following Cirilo-Muñoz, Saúl, and Mejías, when Lugo asked Tony why Cirilo-Muñoz and Saúl were taking Mejías, and Tony responded, "[T]o take him down." Lugo said that after Cirilo-Muñoz and Saúl pushed the Suzuki off the road and boarded the Oldsmobile, Cirilo-Muñoz stated, "Boy, I gave him one in the stomach and three on the head." Lugo stated that Cirilo-Muñoz then said, "All of you know how this is, whoever talks or snitches, knows what will be coming." Lugo also told Agent Medina that he was surprised to see Cirilo-Muñoz at the drug point because approximately four months earlier, Cirilo-Muñoz left the area because he failed to pay for an undisclosed amount of drugs that he consumed, and ever since, had not been at the drug point. Lugo stated that it was common knowledge that specific instructions had been given that Cirilo-Muñoz was to be beaten up if he showed up, and thus Lugo was of the opinion that Cirilo-Muñoz should pay off his drug debt by killing Mejías.

At a minimum, by the time the Government sought its indictment against Cirilo-Muñoz, and Agent Medina appeared before the grand jury to repeat what Lugo had told him in the course of three interviews, it should have been apparent that Lugo was unreliable and less than truthful. It is obvious that the Government was uneasy with the information provided by Lugo up to then, for even though the investigation, which had been conducted by agents with considerable experience,

For example, Agent Pérez had seven years experience with theF.B.I. Trial Tr. at vol. VII, p. 1062, l. 6.

Close resulted in an indictment, the investigation continued even after the indictment was issued.

Thus, on December 19 to 20, 1994, Agents Medina and Orlando Pages

Agent Pages had nine years extensive experience with theF.B.I. Trial Tr. at vol. VII, pp. 880-81.

Close again met with Lugo at the federal detention center,

The interview is memorialized in a nine-page 302 report datedDecember 20, 1994, subscribed to by both agents. The followingdiscussion is based entirely on that report.

Close during portions of which Lugo's defense lawyer and the Assistant U.S. Attorney were also present. During this interview, Lugo gave a third version of what transpired on November 1, 1994 regarding the murder of Police Officer Mejías and of Cirilo-Muñoz's involvement, or more accurately, his lack of involvement.

Lugo started by explaining that he had become indebted to "Chispo," a childhood friend. Chispo supplied the drugs that Lugo sold at the drug "punto"

Literally "point", which in drug parlance means "a place orlocale where drugs are sold," usually outdoors on a street corneror the like.

Close in front of a small store known as "El Cafetín Ideal." Lugo had become indebted because in addition to selling drugs, he was using drugs and not paying for them. Lugo said that Chispo became upset with him, and Lugo's father had to bail him out by paying the money he owed. Thus, Lugo did not work the "punto" for about three weeks, after which he convinced Chispo to give him back his job and was assigned the 9:00 a.m. to 6:00 p.m. shift, Mondays through Wednesdays. Thereafter, he continued selling drugs, "[u]ntil he killed Ivan Mejías Hernández on November 1, 1994."

Agents Medina & Pages, 302 Report, December 20, 1994, at 1.

Lugo said that he first saw Mejías in October in front of Cafetín El Ideal. Thereafter, another drug dealer advised Lugo that Mejías had tried to purchase a "package" of cocaine

A "package" in the illegal drug trade contains ten smallplastic bags filled with cocaine.

Close from him, but he did not sell it to him because he saw a revolver in Mejías's vehicle, a white Suzuki. Lugo stated that he saw Mejías again at El Ideal during the second week in October and sold him five small plastic bags of cocaine for fifty dollars. On Friday of the second week in October, Lugo saw Mejías for the third time at El Ideal. Mejías was looking for a person named Luis Navarro and left when he did not find him. By this time, Lugo stated, he and the other dealers running the drug point at Cafetín El Ideal had become suspicious of Mejías because he had purchased large amounts of drugs immediately after he met a dealer there. Because of this, Lugo and these dealers were of the opinion that Mejías was a snitch or undercover policeman. During the last week in October, Chispo told Lugo that if Mejías came back to Cafetín El Ideal and stayed after dark, "to take him and kill him." On Halloween night, which was the day before Mejías's murder, Chispo advised Lugo for the second time that if Mejías came to the drug point at Cafetín El Ideal to make sure to take him and kill him.

Lugo explained that on November 1, 1994, he started selling drugs in front of Cafetín El Ideal at about 9:00 a.m. Between 9:00 a.m. and 2:00 p.m., others arrived at Cafetín El Ideal, including Saúl, Cirilo-Muñoz, and Tony. Sometime between 2:15 and 2:30 p.m., Mejías arrived in his Suzuki. He went into the Cafetín and purchased a bottle of rum. Mejías then called a person named "Navarro" on the telephone, whom he claimed owed him money. When Navarro showed up, he and Mejías had a heated argument and Navarro left on foot. Mejías then went to his vehicle where he retrieved a revolver and then put it back in his car, before following Navarro on foot. Lugo and some of the dealers ran after him to see what would happen, but only saw Mejías and Navarro talking to each other.

According to Lugo, Mejías returned to El Ideal, and at this time, Lugo decided to kill him as instructed by Chispo. Lugo walked to a small schoolhouse located next to El Ideal where Tony, Mejías, and a person named "David" were standing. Lugo asked them to accompany him to the back of a residence located in front of El Ideal owned by a person named "Juan." Once there, an argument ensued between Mejías and Lugo, Mejías claiming that he read Lugo's lips earlier that day when he saw Lugo tell David to accept Mejías's invitation to go shopping with him at the Plaza Carolina Mall in order to learn more about him. Lugo then accused Mejías of being a snitch, to which Mejías did not react, whereupon Lugo asked Tony for his car keys. Lugo said he then went to Tony's car, a black Oldsmobile, where he retrieved a Colt .38 caliber revolver from the trunk. Lugo returned to El Ideal, where he advised Saúl that he was going to take Mejías from the area in order to kill him. Saúl advised Lugo that he should approach Mejías with the gun, and that he would go around the house and set upon Mejías from the other side to take his car keys. They would then search Mejías's car for the revolver Lugo had seen.

Lugo and Saúl walked to the back of Juan's house and carried out their plan. Lugo approached Mejías with the revolver and asked him for his car keys, which Saúl took. Cirilo-Muñoz, Elio, and Saúl went to the car and searched it while Mejías sat on the back steps of the residence, watched by Lugo. After Mejías's car was searched and his gun retrieved, Lugo escorted Mejías to the Suzuki and told him to leave the area and that he never wanted to see him again. Mejías got into his car and started the engine, but did not drive away. A person named "Yito" walked over to Lugo and said to him, "No, you've got to take him." Lugo apologized to Mejías, and made him sit in the back seat behind the driver, while Saúl sat in the driver's seat and Lugo sat in the back with Mejías. Tony walked over to Lugo and said he and Cirilo-Muñoz would follow in Tony's car so they could pick them up after they killed Mejías.

Lugo, Saúl, and Mejías drove away in Mejías's car. Cirilo-Muñoz and Tony followed with Cirilo-Muñoz driving. As the Suzuki drove away, Mejías turned toward Lugo and pled with him not to kill him, since he had a six-month old baby boy, to which Lugo responded, "I have to do it," firing once into Mejías's stomach. On impact, Mejías grabbed his stomach and opened his mouth, while gasping for breath, whereupon Lugo fired a second shot into the right side of Mejías's head. Saúl, who was driving the car, turned to complain about the noise and lost control of the car in a curve, ending up in front of someone's driveway. In the process Mejías's body fell toward Lugo, who moved, letting the cadaver fall lengthwise on the seat. Thereafter, Lugo sat on top of Mejías's corpse until the car had stopped. Upon noticing he was covered with Mejías's blood, Lugo moved to the front seat of the Suzuki.

Shortly afterwards, the Suzuki stopped on the road past a country store. Yito drove up on a motorcycle and asked what had happened to Mejías. Lugo told him he had killed him, to which Yito nodded his head in approval. Yito drove away and Lugo noticed Cirilo-Muñoz and Tony driving towards them in Tony's black Oldsmobile. Saúl and Lugo drove off, followed by the Oldsmobile with Tony and Cirilo-Muñoz. They all continued until reaching a deserted area where Cirilo-Muñoz and Tony pulled in front of Saúl and Lugo's car and stopped.

Tony got out and walked towards Lugo. Lugo handed him the gun he used to shoot Mejías. Tony asked Lugo if he made sure Mejías was dead; Lugo answered that had shot Mejías twice. Tony then went into the Suzuki and shot Mejías twice in the back of the head. Lugo got into the black Oldsmobile with Cirilo-Muñoz, Tony got into the Suzuki with Saúl, and both cars left with the Suzuki leading the way.

At that point Cirilo-Muñoz asked Lugo how he killed Mejías, but Lugo, who was under the influence of cocaine, would not answer. Cirilo-Muñoz told Lugo that, earlier, Tony had stated that if Lugo did not make sure that Mejías was dead, Tony would personally make sure he was. They eventually found the quarry that Lugo was looking for and Saúl and Tony pushed the Suzuki over the side of the hill with Mejías's body inside. Saúl and Tony ran and got into the Oldsmobile with Cirilo-Muñoz and Lugo. Again, while they were driving away from this scene, Cirilo-Muñoz, who was driving the car, asked Saúl, Lugo, and Tony how they killed Mejías, but no one would answer him. Instead Lugo counted the money he took from Mejías's body, which totaled two hundred and forty dollars, and divided it equally among the occupants of the car.

Cirilo-Muñoz drove Lugo to his home, and they separated. Lugo stated that he burnt this bloody clothes, putting the buttons and zipper in the trash as they would not burn.

Lugo then told Agent Medina that he had switched roles with Cirilo-Muñoz during his original account of the events because he feared Cirilo-Muñoz least of those involved. Lugo also thought Cirilo-Muñoz would be supported least by the drug dealers involved.

I have taken the trouble of detailing these incidents because they are important in several ways. First of all, this last version of events is substantially different than the prior statements given by Lugo. More importantly, it is different in ways that significantly bolster Cirilo-Muñoz's present contention as to his minimal participation in the crime for which he was found guilty. Secondly, I wish to point to the fact that the Government never resubmitted this new evidence to the grand jury notwithstanding that it was this new version of events that the Government later relied on in its case against Cirilo-Muñoz. It would seem that had the Government's prime concern been seeing that justice was done, upon acquiring this new knowledge of Lugo's murder of Mejías and Cirilo-Muñoz's attenuated role therein, its duty was to reconvene the grand jury to seek a superseding indictment charging Cirilo-Muñoz with being an accessory after the fact, 18 U.S.C. § 3, the crime which the evidence showed he actually committed, rather than as an aider and abettor of Mejías's murder. In fact, Lugo's testimony at trial substantially tracked his December 19-20 statement to the F.B.I., except that, as I will presently detail, his actual testimony is even more favorable to Cirilo-Muñoz's contentions.

See Trial Tr. at vol. V, p. 546 - vol. VII, p. 827.

Lugo, who was eligible to receive the death penalty for the murder of Mejías during the commission of the carjacking, 18 U.S.C. § 2119(3), and for his murder of a police officer, 21 U.S.C. § 848(e)(1)(B), pleaded guilty to the charges against him pursuant to an agreement entered with the Government whereby he agreed "to cooperate fully and truthfully with the United States" including "to testify as a witness before any Grand Jury . . . and at any hearing or trial, when called upon to do so by the United States".

Plea and Cooperation Agreement, United States v. Lugo-Sánchez, CR-94-363 ("Plea and Cooperation Agreement") at 4, ¶ 7a(D.P.R. September 11, 1995). It is signed by Lugo, his attorney, and the Assistant U.S. Attorney. They also subscribe to anattached document entitled "Government's Version of the Facts"which appears to be a verbatim copy of Agents Medina and Page's 302Report from December 19-20, 1994, the so-called third version ofevents which was never submitted to the grand jury.

Close The agreement is "conditioned only upon [Lugo] providing full, complete and truthful cooperation," and he is "only required to tell the complete truth."

Plea and Cooperation Agreement at 5, ¶ 8.

Close If he failed "in any way to fulfill completely all obligations under this agreement," including "withholding evidence, or otherwise . . . not [being] completely truthful with the United States . . . or in testimony before a Grand Jury or at trial," then the Government would be released from its obligations under the agreement and Lugo could be fully charged with the crimes to which he confessed, as well as perjury.

Id. at 5-6, ¶ 9.

Close Upon acceptance of this agreement by the court, the Government agreed that Lugo would not be charged with any other crimes committed by him about which he had informed the Government, "if he testifies truthfully at any grand jury, trial or other proceeding."

Id. at 8, ¶ 14.

Close In exchange for Lugo's plea and agreement, the Government further "agreed to recommend to the Court, at the time of sentencing, that a downward departure is appropriate and [to] inform the Court of the extent of cooperation provided by defendant [Lugo]."

Id. at 8-9, ¶ 16.

Lugo thus became the star for the prosecution, testifying against his co-defendants, including Cirilo-Muñoz, commencing September 18, 1995, the fifth day of the trial.

See Trial Tr. at vol. V., pp. 547 - vol. VII, p. 827.

Close His testimony substantially consisted of a reiteration of the third version of the events surrounding his murder of Agent Mejías on November 1, 1994,

See id. at vol. V, p. 556, ll. 6-16; id. at vol. V, p. 558,ll. 14-19.

Close in which he basically retracted his implication of Cirilo-Muñoz as the murderer and principal, and admitted it was he who killed Mejías and led this criminal enterprise.

See id. at vol. V, p. 557, ll. 2-11.

Close I will thus not repeat what has been amply detailed. However, Lugo's trial testimony further clarified several points which are important in absolving Cirilo-Muñoz from the shadow of wrongdoing cast on him by the chain of events I have described. These clarifications are relevant to the issue of the reasonableness of the sentence imposed because they not only establish that Cirilo-Muñoz lacked prior knowledge that Mejías would be killed by Lugo, but that in any event, his participation in the events was minimal prior to Mejías's murder by Lugo. Furthermore, it is important to emphasize that this is the uncontradicted evidence of the Government's own witness, a witness who has hanging over his head the threat of losing a benevolent sentencing arrangement if he does not testify truthfully. Thus, rather strong proof that Lugo testified truthfully, and that the Government believes that he did, lies in the fact that the Government has not reneged on the plea agreement. This makes the Government's actions regarding Cirilo-Muñoz's sentence even more egregious.

The testimony of Lugo at trial established that besides Lugo, only Tony knew about the existence of a gun, having been called on the telephone by Lugo, told of Lugo's intention to kill Mejías,

See id. at vol. V, p. 578, ll. 21-25.

Close and asked to bring the gun to El Ideal on November 1, shortly before the assassination.

See id. at vol. V, p. 579, ll. 13-15.

Lugo's testimony further established that after Lugo's confrontation with Mejías behind Juan's house, Lugo left with Tony and David, and proceeded alone towards El Ideal, where Cirilo-Muñoz was, as well as Yito and several young men.

Id. at vol. V, p. 592, ll. 21-25.

Close Because Lugo was mad at Mejías as a result of the incident with him behind Juan's house, he invited Cirilo-Muñoz to hit Mejías.

Id. at vol. V, p. 593, ll. 1-5

Close This offer was rejected

If Cirilo-Muñoz refused to join in the beating up of Mejías,is it logical that he would shortly thereafter join in his murder?

Close and Lugo "started getting angrier, angrier and angrier," and went to Tony, who had remained behind Juan's house, got the keys to the Oldsmobile, and retrieved the gun from under the rear seat.

Id. at vol. V, p. 593, ll. 4-13.

Close Lugo then returned the car keys to Tony and went back to El Ideal by himself,

Id. at vol. V, p. 593, l.23 - p. 594, l.2.

Close where he encountered Cirilo-Muñoz, Yito, Saúl, and several others.

Id. at vol. V, p. 594, ll. 1-2.

Close The gun was in Lugo's waist, with his shirt pulled out and covering the firearm.

Id. at vol. V, p. 594, ll. 3-14.

Close Upon encountering Saúl at Cafetín El Ideal, Lugo again tried to get them to beat up Mejías,

Because of translation problems, a recurrent problem that isapparent throughout this record, it is not clear if Lugo isreferring to all of those who were present, of just to Saúl. Thetranscript reads as follows:

LUGO: There I encountered Saúl [Mangual-] Corchado andthe ones I've mentioned, to fire them up.

THE REPORTER: "To fire them up?"

. . .

LUGO: I again mentioned this to him to "prenderlo,prenderlo, so that we could all hit him."

THE INTERPRETER: "Prenderlo, not fire them up."

Id. at vol. V, p. 594, ll. 16-22 (emphasis added).

Close but again the record does not show any takers. Saúl then suggested that he would go around Juan's house and come up behind Mejías while Lugo pointed the gun at him, and take Mejías' car keys away from him,

Id. at vol. V, p. 595, ll. 7-13.

Close and "that's how it was."

Id. at vol. V, p. 595, ll. 15-21.

Close Then, everyone behind Juan's house (Saúl, Tony and David Silva) left.

Id. at vol. V, p. 595, l. 23; p. 596, ll. 9-11.

Close While this was happening, Cirilo-Muñoz was "in the business", i.e., the Cafetín El Ideal.

Id. at vol. V, p. 596, ll. 12-13.

Lugo testified that he proceeded alone to the Suzuki with Mejías in front of him, having warned him not to try anything, as he was armed.

Id. at vol. V, p. 596, l. 21 - p. 597, l. 1.

Close Saúl, Tony, Junito, and David were at the Suzuki, searching the car for Mejías's weapon, and had found it,

Id. at vol. V, p. 596, ll. 15-19.

Close whereupon Lugo waited for them to get away from the car.

Id.

Close Lugo then told Mejías to get in, and "not come around anymore ever."

Id. at vol. V, p. 597, ll. 3-5.

Close Before Mejías could leave, someone told Lugo that he "had to take him [i.e., Mejías] away; that he could come back."

Id. at vol. V, p. 598, l. 12 - p. 599, l. 1.

Close Lugo opened Mejías's door and told Mejías to get into the rear seat and signaled Saúl to get into the driver's seat.

Id. at vol. V, p. 599, ll. 3-7.

Close Lugo went around, opened the door and got into the rear, and once inside the car, pulled out the gun he had been carrying in his waist.

Id. at vol. V, p. 599, ll. 9-19.

Close Saúl started the car, and he and Lugo left with Mejías in the Suzuki,

Id. at vol. V, p. 599, ll. 21-23.

Close and "six or ten seconds" later Lugo shot twice at Mejías, once into his stomach and once into his right temple.

Id. at vol. V, p. 600, l. 17 - p. 601, l. 19.

Close Before Lugo fired the shots, Mejías asked him "not to kill him, that he had a six-month baby girl," but he "didn't pay attention to him."

Id. at vol. V, p. 600, ll. 23-25.

From the above testimony of the Government's star witness -- the only testimony presented by the Government regarding Cirilo-Muñoz's state of mind -- there is simply no evidence that Cirilo-Muñoz knew what was going to happen or was happening. And there is certainly not a scintilla of proof that he intentionally aided in these events; the fact that he was absolved of the carjacking and weapons charges merely confirms this asseveration. Although Lugo testified that he had seen Cirilo-Muñoz before, "real close to the [Suzuki]" when Tony, Saúl, Junito and David were searching it for Mejías's weapon, he stated that Cirilo-Muñoz was "not searching inside the car" -- he was just "looking."

Id. at vol. V, p. 597, ll. 16-19 (emphasis added).

Close Lugo further stated, however, that when he and Saúl left in the Suzuki with Mejías, Cirilo-Muñoz and Tony "were at the El Ideal Cafetín -- or Cafetín El Ideal."

Id. at vol. V, p. 600, ll. 10-15 (emphasis added).

Close Lugo later testified that after he had killed Mejías, farther down the road, Saúl came to a stop near a business called "El Cano's," and when he "looked toward the front, Cirilo[-Muñoz] and Tony Ynoa were in the -- were in the Oldsmobile."

Id. at vol. V, p. 602, ll. 8-24.

Close Thereafter, "[t]hey followed behind [the Suzuki]. [Lugo] really [doesn't] know whether they had agreed -- they agreed to follow because [Lugo] did not hear anything."

Id. at vol. V, p. 603, ll. 4-6. See also id. at vol. VI, p.697, l. 8 - p. 698, l. 11.

Close I will not discuss the events that transpired thereafter, as they are irrelevant to the central issue of aiding and abetting in the murder of Mejías, which require proof of what transpired before the murder took place. Suffice it to say that the evidence in this record does not have the requisite prior knowledge by Cirilo-Muñoz.

II. The Standard: What is the function of a court of appeals in

determining the validity of a criminal sentence?

As recently restated by the Supreme Court, "[t]he federal courts of appeals review federal sentences and set aside those they find 'unreasonable.'" Rita v. United States, 127 S. Ct. 2456, 2459 (2007); cf. United States v. Booker, 543 U.S. 220, 261-263 (2005). The Court further affirmed the obvious: "[D]istrict judges . . . [a]t times impose sentences that are unreasonable [and] [c]ircuit courts exist to correct such mistakes when they occur." Rita, 127 S. Ct. at 2466. As is already clearly apparent, the present case is undoubtedly one in which the sentence imposed is patently unreasonable. It is thus the duty of this Court to carry out its designated function by vacating the sentence, and remanding the case again for a second resentencing.

Clearly, whether a sentence is "reasonable" is a mixed question of law and fact. See, e.g., United States v. Willams, 475 F.3d 468, 474 (2d Cir. 2007). As such a sentence is subject to review under an abuse of discretion standard which is guided by what has been established by Congress as the prevalent sentencing legal philosophy of the United States. Rita, 127 S. Ct. at 2470-71 (Stevens, J., concurring) ("Simply stated, Booker replaced the de novo standard of review required by 18 U.S.C. § 3742(e) with an abuse-of-discretion standard that we called 'reasonableness' review." (quoting United States v. Booker, 543 U.S. 220, 262 (2005))). In Rita, the Court emphasized Congress's mandate to sentencing judges established in the basic sentencing objectives set forth in 18 U.S.C. § 3553(a), as well as in its directive to sentencing judges that they "impose ... sentence[s] [that are] sufficient, but not greater than necessary, to comply with" these basic aims. Id. at 2463; see also 18 U.S.C. § 3553(a). The Court additionally underscored the "Statutory Mission" and "Basic Approach" given by Congress when it enacted this legislation: "'uniformity in sentencing by narrowing the wide disparity in sentences imposed by different federal courts for similar conduct,'" as well as "'proportionality in sentencing through a system that imposes appropriately different sentences for criminal conduct of different severity.'" Id. at 2464 (quoting U.S.S.G. § 1A.1, intro to comment, pt. A, ¶ 2) (emphasis in the original).

Thus, I see our role in determining the validity of a sentence whose reasonableness is questioned as one requiring analysis of the sentence and the reasons given by the sentencing court in reaching its conclusions, tested against the record of the case to determine whether the reasoning is supported by the record, and ultimately, whether the sentence is reasonable. Of course, in analyzing a sentence, we look to the basic sentencing objectives of 18 U.S.C. § 3553(a), and ultimately, whether the sentence is "sufficient but not greater than necessary" to comply with the basic aims listed in § 3553(a)(2):

(A) to reflect the seriousness of the offense, to promote respect for the law, and to provide just punishment for the offense;

(B) to afford adequate deterrence to criminal conduct;

(D) to provide the defendant with needed educational or vocational training, medical care, or other correctional treatment in the most effective manner.

It is probable that it may not be possible to establish beforehand an all-encompassing definition of what is a "reasonable sentence" -- a definition that covers all circumstances and extremes. But all is not lost, and this is not an unheard-of situation in the law. See, e.g., Booker, 543 U.S. at 262 ("'Reasonableness' standards are not foreign to sentencing law."); Williams v. Taylor, 529 U.S. 362, 387 n.4 (2000) (noting that the term "unreasonable" was difficult to define in the context of the Anti Terrorism and Effective Death Penalty Act). It is possible to establish the middle ground, and leave the establishment of the fringes to the development of jurisprudence. That is, after all, the tried and true process of our common-law system. Perhaps a valid starting point is the dictionary. There, we come upon the definition of "reasonable" as "amenable . . . agreeable to reason, just, rational, not immoderate, not excessive, not unjust, tolerable, moderate, sensible . . . ." Webster's New Unabridged Oxbridge Dictionary 1502 (1972).

The sentence appealed from by Cirilo-Muñoz does not withstand the scrutiny imposed by these standards. As I will demonstrate: (1) the scant reasoning provided by the sentencing judge is faulty and is not supported by the record; (2) the sentence fails to meet the objectives of § 3553(a) because it is substantially greater than necessary to comply with those basic aims; (3) the sentence fails to promote uniformity in sentencing when compared to similar sentences imposed in the federal system; and (4) the sentence is grossly disproportionate when the severity of the defendant's actions is considered. Cirilo-Muñoz's sentence also fails the Webster's test: it is unjust, immoderate, and intolerable. In short, the sentence imposed upon Cirilo-Muñoz after remand is unreasonable.

III. Is the Sentence Supported by the Judge's Reasoning?

Although we are concerned with the sentence imposed on Cirilo-Muñoz after we remanded the case, given that the second sentence was nearly equally as draconian as the first, the circumstances of the first sentence serve as background to the present appeal and shed some light on the district judge's actions and reasoning in the matter presently before us.

In the first sentencing proceeding, although there was a dearth of evidence to the effect that Cirilo-Muñoz knew that Mejías was a police officer and that Lugo planned to kill him -- a point emphasized by counsel for the defense to the district judge -- the judge flatly rejected this contention and instead concluded that there was evidence to infer that "this defendant knew that the victim was a police officer and he was being killed because he was a police officer."

See Transcript of Sentencing Hearing, United States v.Cirilo-Muñoz, CR-94-363 ("Sentencing Tr.") at p. 13, ll. 11-15(D.P.R. January 16, 1996).

Close The judge then proceeded to analyze a version of the evidence that is not supported by the record, which commences with Cirilo-Muñoz's arrival at El Ideal ten to fifteen minutes after Tony, which the judge deemed "important because that place[d] Cirilo-Muñoz in that area which is a very small area close to the main events."

Id. at p. 13, ll. 20-22.

Close Thereafter, the judge continued discussing the events that followed, assuming and speculating, despite the lack of any support on the record, knowledge by Cirilo-Muñoz as to what was going on regarding Lugo's plans and actions,

Id. at pp. 13-15.

Close even regarding crimes as to which Cirilo-Muñoz was acquitted by the jury.

"And then [Cirilo-Muñoz] got into the car with Ynoa -- tofollow the victim who was kidnaped or abducted in the car. And heknew at that time that they were not going to go to a picnic. Thatwas -- that was -- there's -- there's -- there was something goingon there." Id. at p. 14, ll. 16-20.

Close In fact, it could be argued from statements at that hearing that the judge erroneously thought that mere presence at the scene by Cirilo-Muñoz was sufficient to imply knowledge and intent. See United States v. Guerrero, 114 F.3d 332, 342 (1st Cir. 1997). The judge's faulty reasoning is especially apparent in his surmising Cirilo-Muñoz's prior knowledge from the fact that the Suzuki went out of control because of the loudness of the shots fired by Lugo into Mejías.

Id. at p. 14, l. 22 - p. 15, l. 8.

Close Apart from the lack of logic of these events establishing the prior knowledge by Cirilo-Muñoz, there is absolutely no evidence to establish that the Oldsmobile in which Cirilo-Muñoz was driving was anywhere near the Suzuki when the fatal shots were fired. Yet the district judge had no qualms in concluding, "I'm certain a fired shot must have been heard by the drivers in the other car."

Id. at p. 15, ll. 6-8.

Close Based on this dubious evidence and total speculation, the judge went on to conclude that although Cirilo-Muñoz was a minor participant, he knew that Mejías was a police officer. Although he stated at first that he would not give him life imprisonment,

Id. at p. 6, l. 10.

Close the judge nevertheless proceeded to impose life imprisonment.

Id. at p. 27, ll. 20-21. The statements by the judge seemto confuse Lugo's actions when he murdered Mejías with Cirilo-Muñoz's, who was nowhere in the vicinity when Lugo killed Mejías. Thus, the district judge refers to the heart-rending incident inwhich Mejías begs for mercy, an event that took place while Lugowas with Mejías and Tony in the Suzuki, after they had left the ElIdeal area, and before Cirilo-Muñoz and Tony arrived in theOldsmobile down the road near the general store, El Cano's. Id. atp. 27, ll. 7-9. Cirilo-Muñoz was not a participant, not even awitness, to this cold-blooded act by Lugo, yet the district judgeseems to hold it against him.

Close Finding that the sentence lacked any support in the facts of the case, we vacated and remanded to the district court for resentencing.

With this background we thus come upon the resentencing hearing held on August 19, 2005, which is further illustrative of the district court's reasoning. As previously indicated, upon motion of Cirilo-Muñoz's counsel and in consonance with this Court's ruling, the presentence report was amended to strike its asseveration to the effect that Cirilo-Muñoz was involved in the distribution of drugs, there being no evidence in the record to said effect.

Transcript of Resentencing Hearing, United States v. Cirilo-Muñoz ("Resentencing Tr.") at p. 3, l. 20 - p. 4, l. 24 (D.P.R.August, 19, 2005).

Also upon motion of Cirilo-Muñoz's counsel, the presentence report was amended to reflect our decision to the effect that there was no evidence on the record to support the conclusion that Cirilo-Muñoz knew that Mejías was a police officer,

Id. at p. 5, l. 16 - p. 6, l. 5.

Close which as has been pointed out in discussing the first sentencing hearing, was a key finding of the district court on which it based its imposition of Cirilo-Muñoz's life sentence.

Supra note 54.

Defense counsel then requested that there be a further amendment to reflect that "there's no evidence in the record to determine why Mr. Cirilo followed the car. In other words, there is no evidence that anyone asked my client to follow him."

Resentencing Tr. at p. 6, ll. 12-16.

Close This colloquy then took place:

THE COURT: Then why did he follow him?

COUNSEL FOR CIRILO-MUÑOZ: That's exactly what the Court of Appeals said. We don't know the answer to that. There's no evidence on the record as to that.

THE COURT: Because the problem is that this individual, Mejías, was, I would say, sort of kidnapped into this vehicle, and then the other vehicle followed where this defendant was in that vehicle. Wasn't he driving the vehicle, the defendant?

COUNSEL: Was he driving the other vehicle?

THE DEFENDANT: Yes.

THE COURT: So how come you are going to follow another car that has already there unwillingly in custody? I mean -- and then that car was thrown over some quarry so that this car was needed to bring back the other fellows. I think that he knew that he was following that car. He didn't know that he was a police officer, but that's another point. This, I will deny this.

Id. at p. 6, l. 16 - p. 7, l. 19.

This interchange reveals several errors, including several inappropriate assumptions by the district judge.

First of all, it is apparent from the judge's comments that he assumed that Cirilo-Muñoz knew that Mejías was being kidnaped by Lugo, and somehow was an accomplice or an aider and abettor in that endeavor. In fact as the record clearly establishes, Cirilo-Muñoz was kept outside the inner circle of knowledge as to what was going on. He was unaware that Lugo was armed, Lugo keeping the gun hidden under his belt

Trial Tr. at vol. V, p. 594, ll. 3-14.

Close and not taking it out until he was in the Suzuki with Mejías and Saúl.

Id. at vol. V, p. 599, ll. 9-19.

Close There is simply no evidence that would allow the judge to conclude that Cirilo-Muñoz was aware that Mejías was "sort of kidnaped in his vehicle." Furthermore, to the extent that this statement reflects that the judge somehow lumped Lugo's taking of Mejías with the carjacking of his vehicle, it seems to be an inappropriate confusion or merger of facts and charges, and the consideration by the judge of allegations as to which the jury clearly absolved Cirilo-Muñoz, i.e., Counts Two and Three of the indictment. Additionally, there is simply no evidence to support the judge's comments regarding the so-called follow-up car, as Lugo, the Government's star witness and the only one to testify in this regard, stated that he did not know why Cirilo-Muñoz had shown up in the Oldsmobile,

Id. at vol. V, p. 603, ll. 4-6.

Close as he had never told Cirilo-Muñoz to follow him.

Id. at vol. VI, p. 698, ll. 2-21.

Close In fact, it was only Lugo who knew about the quarry, and it was he who led the way there.

The Government then presented its arguments. Although by now, having had the benefit of Lugo's third confession and testimony at trial, the prosecution should have known better, it continued its take-no-prisoners approach to Cirilo-Muñoz, adding its own fuel to the fire, and further leading the court to error:

ASSISTANT U.S. ATTORNEY: He killed -- He was involved in killing of an individual that happened to be also a law enforcement. Part of the group that was involved in the killing knew that he was a law enforcement.

Therefore, at least 99.9 of that group knew they kidnaped and they were to kill a law enforcement.

. . .

You cannot be an accessory after the fact when you follow the vehicle when the police officer was kidnaped and they were going to kill him.

The murder happened after this defendant followed that vehicle, and he was the driver. Therefore, he was a participant prior to the killing. He was a participant while the police officer was being kidnaped.

THE COURT: When they pushed the car down the quarry with the victim inside the car, that cannot be done. That's why he was found guilty of aiding and abetting as to murder.

. . .

ASSISTANT U.S. ATTORNEY: A law enforcement officer died because this defendant, as well as others, were involved.

Resentencing Tr. at p. 20, l. 17 - p. 22, l. 6. This hostileand aggressive attack by the prosecution against Cirilo-Muñoz is ingreat contrast to the Government's friendly, almost paternalisticstance at Lugo's sentencing hearing. Although Mejías's murder andcarjacking were admittedly "not the only assaults he had committed,[and] not the only violent crime he had ever engaged in [havingpreviously been sentenced for robbery]", Lugo Sentencing Tr. at p.10, ll. 6-7, and Lugo was thus considered a "potential enforcer" byhis drug bosses, id. at p. 10, l. 15, the Government extolled hiscontributions as a witness, saying he cooperated from thebeginning, and glossing over his initially false statements aboutCirilo-Muñoz, which the Government did not even deign to mention. Id. at p. 17, l.6 - p. 18, l. 24.

Of course these interchanges reveal not only misstatements by the prosecution but also factual errors by the judge. The very remand took place because of lack of evidence that Cirilo-Muñoz was aware of Mejías's status as a police officer. Furthermore Cirilo-Muñoz was acquitted of any complicity in the kidnaping/carjacking of Mejías. Additionally, Mejías was murdered by Lugo within seconds of leaving the El Ideal area. At this point Cirilo-Muñoz was not only not following in the Oldsmobile, but according to the only evidence in the record -- Lugo's testimony at trial -- he and Tony were at El Ideal.

Tr. V, p. 600, ll. 8-24.

Close Lastly, although Cirilo-Muñoz was present when the Suzuki was pushed over the embankment, there is no evidence that he participated in this act, which in any event would have made him an accessory after the fact, not an aider and abettor in the murder, as Mejías was unfortunately already dead.

Not content with the situation, the district judge then proceeded to interrogate Cirilo-Muñoz directly:

THE COURT: Let me ask you this question: Why did you follow the car where the victim here was being kidnaped?

THE DEFENDANT: Well, when they thought they were going to give this person a beating, I never had any awareness of a death or anything, because otherwise, I wouldn't have done it, and in my very own ignorance, I wanted to see just to look, and when I came to learn about it, it was too late. I couldn't go back. And then my life was also at risk because I was in the midst of it all, without really having wanted to.

THE COURT: You stopped the car near the other cars; right?

THE DEFENDANT: Not so near.

THE COURT: How far?

THE DEFENDANT: One hundred meters.

THE COURT: Did you observe when they pushed the car over the quarry?

THE DEFENDANT: When I got there, that's what they were doing. I don't know what they were doing. I saw that, but like I said, it was already too late. I was already involved.

THE COURT: And you knew that Mejías was inside the car when the car was being pushed down the quarry?

MR. GUZMAN: I think for the translation, I think he also said he was already dead. He also said that earlier.

. . .

THE DEFENDANT: By the time I got there, they were doing that. It was already done.

THE COURT: And you knew there was a person inside that car, the victim?

THE DEFENDANT: Well, not really. I never saw him.

THE COURT: Who brought the others, Lugo and Ramírez-Ynoa back?

THE DEFENDANT: I did.

THE COURT: Well, then you followed them to bring them back in another car; right.

THE DEFENDANT: Oh, I have never said -- no.

THE COURT: So didn't you wonder what happened to the person that was inside the car?

THE DEFENDANT: After the facts, yes. That's when I learned what had gone on.

Resentencing Tr. at p. 23, l. 25 - p. 26, l. 9.

The district judge then proceeded to resentence Cirilo-Muñoz, explaining that he would not make any variance "[b]ecause I don't feel that the whole affair in this case requires that I vary the sentence downward . . . . I will sentence him under the advisory guidelines, and I'll give him a reasonable sentence" (emphasis added).

Id. at p. 27, ll. 20-25. To what "whole affair" was thejudge referring? Cirilo-Muñoz was found guilty only on Count 1,and was a minor participant at that, according to the judge.

Close The judge then proceeded to "explain" his reasoning by simply reading the various sentencing factors in 18 U.S.C. § 3553(a), and stating how "Defendant Lugo Sánchez was the person who knocked at the door first," and cooperated with the Government, thus warranting the special treatment that he received.

Id. at p. 28, l. 17 - p. 29, l.17.

Getting to the specifics of the sentence, the district judge said that he had

to pay obeisance to the Court of Appeals where the Court says that the evidence was thin. The Court of Appeals didn't say there was no evidence. Simply, it was thin, which means there was some evidence. . . . [I]t's going to be very difficult for a Court of Appeals or a higher court to reverse a judge when the judge sentences a defendant at the lower end of the advisory guideline. That's as reasonable as I can be. As a matter of fact this defendant is getting a 38-year reduction [from the prior life sentence]. If he lives to 65, he would get a 43-year reduction.

Id. at p. 30, l. 21 - p. 31, l. 18.

The judge then proceeded to sentence Cirilo-Muñoz to 324 months of imprisonment, i.e., twenty-seven years.

Id. at p. 32, l. 17.

I cannot say that these statements by the district court, which consist mainly of a restatement of the law as well as a sarcastic statement regarding the "reduction," provide me with much insight into his reasoning. Reading between the lines, I get the distinct impression that it is merely a clumsy attempt to evade appellate review. I do not believe it is a successful one.

IV.

A. "The nature and circumstances of the offense" of which

Cirilo-Muñoz was convicted.

I start with the first factor to be considered in imposing a sentence, "the nature and circumstances of the offense and the history and characteristics of the defendant," 18 U.S.C. § 3553(a)(1). As should be crystal clear from the recitation of the facts, there is no evidence in the trial record that Lugo told Cirilo-Muñoz,

See Trial Tr. at vol. V, p. 586, ll. 2-4.

Close or any one else in Cirilo-Muñoz's presence,

Cirilo-Muñoz was not present in the back of Juan's house,across the street from the Cafetín El Ideal, when Mejías had theargument with Lugo in the presence of Tony and David Silva. There,Mejías confronted Lugo about the conversation between Lugo andDavid -- which Mejías had lip-read -- in which Lugo had asked Davidto go with Mejías to Plaza Carolina to check on the bona fides ofMejías, whom Lugo suspected of being a police informant. Seegenerally Trial Tr. at vol. V, pp. 586-92.

Close that he intended to kill Mejías or that Cirilo-Muñoz had this prior knowledge that he intended to kill Mejías,

See Trial Tr. at vol. VI, p. 696, l. 22 - p. 697, l. 1.

Close and most importantly, that Cirilo-Muñoz did anything before Mejías was killed intending to aid in this nefarious endeavor. I recognize that this statement is contrary to the jury verdict, which has already been affirmed by this Court. See Mangual-Corchado, 139 F.3d 34. Although I strongly believe that the conviction should have been reversed, even accepting that there was minimally sufficient evidence for a jury to find Cirilo-Muñoz guilty, that evidence shows that his link to this crime was so attenuated, so remote, that even the appellation "minimal participant" does not do it justice. I briefly explain.

First, given the testimony that nobody told Cirilo-Muñoz of the intended murder of Mejías before it happened, at best, Cirilo-Muñoz could not have had more than fleeting knowledge that a crime was going to occur. Moreover, there was no testimony that Cirilo-Muñoz had any desire to engage in any sort of violence against Mejías; if anything, he had turned down two of Lugo's invitations to injure Mejías. Furthermore, to the extent that Cirilo-Muñoz did provide some minimal support by driving a getaway car, it is hard to see how this sole action could be considered so worthy of our opprobrium that we would put Cirilo-Muñoz in jail for what amounts to most of his natural life.

Thus, even if we accept that Cirilo-Muñoz's actions and mens rea are sufficient for a conviction, it is clear that his foreknowledge of the crime was largely hypothetical, and his willing and intentional participation minimal at best. This becomes even more evident when Cirilo-Muñoz's role is compared to that of Lugo -- the perpetrator of the crime, the organizer of the scheme, and ultimately, the beneficiary of a Government-requested sentence that was effectively ten years below Cirilo-Muñoz's sentence. Thus, given Cirilo-Muñoz's marginal role, it is clear that a sentence of twenty-seven years is plainly unreasonable.

B. The history and characteristics of Cirilo-Muñoz.

The first fact to be considered is Cirilo-Muñoz's undisputed lack of any criminal record.

See Presentence Report, United States v. Cirilo-Muñoz, CR-94-363 at p. 9, pt. B, (D.P.R. Dec. 28, 1995).

Close Second, there is no evidence in the record that Cirilo-Muñoz was involved in the sale of drugs. See Cirilo-Muñoz, 404 F.3d at 528. There was incorrect information to the contrary in his first presentence report, and this information was objected to by defense counsel at his resentencing hearing. This error was then corrected by the sentencing judge.

See supra n.62.

Cirilo-Muñoz, who was eighteen years old when the incidents involved took place, lived a short distance from the Cafetín El Ideal, a neighborhood bar which was the hang-out for the young men that lived in the typical poor Puerto Rico barrio

Best translated as "neighborhood." See The Concise OxfordSpanish Dictionary 76 (1998).

Close of Parcelas Colón, in the Municipality of Trujillo Alto. They went there to play pool and purchase and drink alcoholic beverages, Mangual-Corchado, 139 F.3d at 38 n.3, although as has been described, some went there to sell drugs at the punto across the street. Cirilo-Muñoz was a user of drugs, and like the "other young guys," a perpetual hanger-on at the Cafetín El Ideal, "spen[ding] nine hours a day, seven days a week, at El Ideal." Id. Although some of the other young men that went there caused problems in and around the El Ideal premises, Cirilo-Muñoz was not one of them.

Trial Tr. at vol. III, p. 282, ll. 10-14.

Close The owner of El Ideal, José Adalberto Lugo-Ramírez, one of the Government's key witnesses at the trial, testified that he had known Cirilo-Muñoz during the four years he had owned that business: "He's a good guy -- good guy. He's never had any problems with me. He goes there. He makes his purchases. He doesn't make any fuss or no -- nothing disorderly, a good young man. . . . He's a -- he's a normal guy who goes to the business. He's a good young man."

Id. at vol. II, p. 226, l. 24 - p. 227, l. 15.

Close Cirilo-Muñoz was an insignificant "groupie," which is precisely why Lugo fingered him initially, and told Agent Medina "he was the least to be feared by him and would be the least likely to be protected by the drug dealers involved," i.e., Cirilo-Muñoz was deemed expendable; he was a de facto disposable accessory, an ideal subject to take the rap for Lugo, a convenience that the Government blithely went along with. A sentence of twenty-seven years is clearly unreasonable for such a man.

C. The sentence of twenty-seven years imprisonment imposed upon

Cirilo-Muñoz as an aider and abettor is unreasonable because it

is greater than necessary to meet the goals established by

Congress, lacking both uniformity and proportionality.

In addition to those already discussed, among the factors that Congress indicated should be considered in determining a criminal sentence are "promot[ing] respect for the law and . . . provid[ing] just punishment for the offense." 18 U.S.C. § 3553(a) (2)(A). I believe it appropriate to ask: How it can be argued that the sentencing of Cirilo-Muñoz to twenty-seven years in this case promotes respect for the law? Even if we accept the district court's conclusions -- that Cirilo-Muñoz is, at worst, a minor aider and abettor in the charges under Count 1 for which he was convicted -- it remains that the actual assassin, who was convicted not only of Count 1, but of all four counts of the indictment, and who possessed an extensive criminal record, was sentenced to only seventeen years. How can a twenty-seven year sentence imposed upon Cirilo-Muñoz for minor participation be considered a "just sentence"?

Quite the opposite, a sentence like the one in the case against Cirilo-Muñoz promotes disrespect for the law, and any semblance of justice in this outcome is purely coincidental. In fact, under the legal codes of many of the most advanced countries in the world, a manipulation of the criminal system such as has taken place in the present case is simply not permissible. See, e.g., Jenia Iontcheva Turner, Judicial Participation in Plea Negotiations: A Comparative View, 54 Am. J. Comp. L. 199, 218 (2006) ("[P]rosecutors [in Germany] cannot make credible commitments that the court will accept a particular charge or sentence bargain."); Maximo Langer, From Legal Transplants to Legal Translations: The Globalization of Plea Bargaining and the Americanization Thesis in Criminal Procedure, 45 Harv. Int'l L.J. 1, 50 (2004) (noting that in Italy, plea-bargaining "can only be applied in cases where the sentence does not exceed five years of imprisonment after sentence reduction"); id. at 59 (noting that plea-bargaining in France may "be applied only to non-serious offenses"); see also William J. Stuntz, Plea Bargaining and Criminal Law's Disappearing Shadow, 117 Harv. L. Rev. 2548, 2567 (2001) (criticizing federal plea bargaining on the ground at the results produced in federal plea bargains are "much more likely to flow from the prosecutors' preferences than from the voters'"). Although I realize that such is not the law or practice in this country, even under our system, the outcome of the present case does little to enhance respect for the law in the eyes of the citizenship. What the average citizen sees is a criminal who knows the ropes and, as a result, is literally getting away with murder by circumventing the system, with an insignificant clod being left holding the bag.

Even in our legal system, the cases that are reported do not support the disparity extant in this case between Cirilo-Muñoz, a minor aider and abettor, and Lugo, the principal and murderer. I have found no reported case where an aider and abettor such as Cirilo-Muñoz was given a higher sentence than the principal. The few cases in which the principal and accessory were sentenced to the same term all have in common the fact that the accessory played a large role in the scheme. See, e.g., United States v. Harris, 167 Fed. Appx. 856, 861 (2d. Cir 2006) (unpublished opinion) (co-defendant's sentence lower where the one with the higher sentence was found to be the leader of the scheme); United States v. Harris, 397 F.3d 404, 416-17 (6th Cir. 2005) (case remanded for a hearing for a minimal participant downward departure where the aider and abettor and principal received the same sentence); see also United States v. Sitting Bear, 436 F.3d 929, 936 (8th Cir. 2006) (aider and abettor of murder of young child and the principal received the same sentence where court found that both parties "were equally culpable for the actions that led to and ultimately caused [the child's] death"); United States v. Wilson, 202 Fed. Appx. 550, 554 (3d Cir. 2006) (unpublished opinion). Clearly, the circumstances of the present case fall outside any of those cases.

V. Conclusion

The sentence imposed upon Cirilo-Muñoz is unreasonable because, as we said in a different context, but also dealing with the concept of what is unreasonable, it is "so devoid of record support, [and] so arbitrary, as to indicate that it is outside the universe of plausible, credible outcomes." O'Brien v.

Actualidad

Disparidad en sentencias puede ser ilegal.