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United States v. Cotto-Negron

United States Court of Appeals, First Circuit

January 9, 2017

UNITED STATES OF AMERICA, Appellee,
v.
ANGEL L. COTTO-NEGRON, a/k/a Quija, Defendant, Appellee.

         APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF PUERTO RICO [Hon. José A. Fusté, U.S. District Judge]

          Tina Schneider on brief for appellant.

          Rosa 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.

          Before Howard, Chief Judge, Selya and Lipez, Circuit Judges.

          LIPEZ, Circuit Judge.

         Appellant 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.

         I.

         In 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 ("PSRs").

         In 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.

         In 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.

         All 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.[1]

         As part 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.[2] 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.

         Cotto-Negrón 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.[3] The resulting total offense level for Cotto-Negrón was thus 28.

         Cotto-Negrón's 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 ...

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