FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF
PUERTO RICO [Hon. José A. Fusté, U.S. District
Schneider on brief for appellant.
Emilia Rodríguez-Vélez, United States Attorney,
Nelson Pérez-Sosa, Assistant United States Attorney,
Chief, Appellate Division, and Juan Carlos Reyes-Ramos,
Assistant United States Attorney, on brief for appellee.
Howard, Chief Judge, Selya and Lipez, Circuit Judges.
Ángel Cotto-Negrón pled guilty to one count of
committing a Hobbs Act robbery in violation of 18 U.S.C.
§ 1951(a) and was sentenced to a prison term of 120
months. On appeal, he challenges his sentence as both
procedurally and substantively unreasonable. We agree that
the sentence was procedurally unreasonable because it was
premised on factual findings that are not supported by any
evidence in the record. Accordingly, we vacate the sentence
and remand the case for resentencing.
setting forth the facts of this case, we draw upon the
stipulated facts in the plea agreements of
Cotto-Negrón and his co-defendants and their
respective presentence investigation reports
December 2010, Cotto-Negrón and a number of
co-defendants met several times to plan a robbery of a Kmart
store located at San Patricio Plaza in Guaynabo, Puerto Rico.
On December 31, Cotto-Negrón, along with William
Zambrana-Sierra, Analdi Tanco-Moreno, and one other
co-defendant, drove with accomplice Edgar Velazquez-Fontanez
to the Kmart, dropping Velazquez-Fontanez off to execute the
robbery. There is no evidence in the record indicating which
of the co-defendants was the driver of the car.
Velazquez-Fontanez entered the store and hid in the sporting
goods section until the store closed. He announced to two
night crew employees that the store was being robbed and then
struck one of the employees with the butt of a firearm,
causing bleeding and a laceration to the victim's head.
Velazquez-Fontanez next tied up the employees and began
stealing merchandise. After more employees arrived at the
Kmart in the morning, Velazquez-Fontanez forced the manager
to open the store safe, and he took the money inside. He
exited the store with the merchandise and cash, exceeding
$50, 000 in total value. At that point the same group of
accomplices arrived back at the Kmart, picked up
Velazquez-Fontanez, and drove off.
September 2013, a grand jury issued a five-count indictment
related to the robbery of two Kmart stores, including the
Kmart at San Patricio Plaza. Cotto-Negrón,
Zambrana-Sierra, and Tanco-Moreno were charged under count
one, conspiracy to commit robbery, and count three, robbing
the Kmart at San Patricio Plaza, both in violation of the
Hobbs Act, 18 U.S.C. § 1951(a). They were not charged
under any other counts in the indictment.
three agreed to plead guilty to count three in exchange for
dismissal of the conspiracy count. Each of their plea
agreements incorporated identical stipulated facts regarding
their illegal activity, and the PSRs of Cotto-Negrón
and Zambrana-Sierra likewise contained an identical
recitation of facts describing the San Patricio robbery and
their respective roles in the crime.
of their respective plea agreements, Cotto-Negrón,
Zambrana-Sierra, and Tanco-Moreno each agreed with the
government to a recommended Sentencing Guidelines calculation
at a total offense level of 26. Zambrana-Sierra and Tanco-Moreno
were both sentenced in accordance with their agreements at
the low end of the Guidelines range consistent with their
respective criminal histories.
was sentenced one day after Zambrana-Sierra. As with the
other two defendants, the court accepted the calculation
recommended in his plea agreement -- but with one addition.
Citing a recommendation by the probation office in
Cotto-Negrón's PSR, the court
announced at the sentencing hearing that it was including a
two-level Guidelines enhancement because a victim had
sustained a bodily injury. The resulting total offense level for
Cotto-Negrón was thus 28.
lawyer objected to the application of the bodily injury
enhancement because the court had not imposed it on the two
other co-defendants. The following colloquy then ensued:
COURT: Don't talk about yesterday's sentence, because
the individual in that case did not drive anybody to the
Kmart, nor picked up any victims in the Kmart. It's
completely different. It's not the same.
DEFENSE COUNSEL: As I understand it, Your Honor, they're
in the ...