                 Not for Publication in West's Federal Reporter

          United States Court of Appeals
                        For the First Circuit


No. 12-1591

                              UNITED STATES,

                                 Appellee,

                                      v.

                        JORGE AVILÉS-SANTIAGO,

                         Defendant, Appellant.


          APPEAL FROM THE UNITED STATES DISTRICT COURT
                 FOR THE DISTRICT OF PUERTO RICO

              [Hon. José A. Fusté, U.S. District Judge]



                                   Before

                         Lynch, Chief Judge,
                Torruella and Selya, Circuit Judges.



     Raymond L. Sánchez Maceira for appellant.
     Alberto R. López Rocafort, Assistant United States Attorney,
with Rosa Emilia Rodríguez-Vélez, United States Attorney, Nelson
Pérez-Sosa, Assistant United States Attorney, Chief, Appellate
Division, and Thomas F. Klumper, Assistant United States Attorney,
on brief for appellee.



                              March 14, 2014
             LYNCH, Chief Judge.    After being arrested as part of a

forty-seven defendant drug conspiracy, defendant Jorge Avilés-

Santiago pled guilty to one count of the indictment against him.

His common-law wife and the mother of his two young children,

Kimberly Meléndez-López, was also a defendant in the conspiracy,

and   also   pled   guilty   to   charges    of   possessing   firearms   in

furtherance of the conspiracy. She was sentenced by the same judge

in a proceeding that occurred before Avilés-Santiago's sentencing

hearing.

             In this appeal, Avilés-Santiago argues that the district

court committed procedural error when it used a conclusion it had

drawn from Meléndez-López's sentencing to increase his sentence

without giving him previous notice of this issue, and that the

conclusion is not otherwise supported on this record.             We agree

with Avilés-Santiago, and so vacate his sentence and remand his

case for resentencing.

                                     I.

             Under his plea agreement, Avilés-Santiago pled guilty to

Count One of the indictment, which charged him with conspiring to

possess with intent to distribute one kilogram or more of heroin,

five kilograms or more of cocaine, 280 grams or more of cocaine

base, 100 or more kilograms of marijuana, and quantities of

oxycodone and alprazolam, all within 1,000 feet of a public housing

facility in Corazal, Puerto Rico.           See 21 U.S.C. §§ 841(a), 846,


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860. The agreement stipulated that Avilés-Santiago was responsible

for between 500 grams and two kilograms of cocaine, resulting in a

minimum sentence of five years and a maximum sentence of eighty

years' imprisonment.       The parties agreed to recommend a 70-month

sentence.     The court rejected that sentence.

             Avilés-Santiago admitted that he joined the conspiracy in

May 2010, acted as a seller, and he possessed and carried firearms

in furtherance of the conspiracy.           His Presentence Investigation

Report (PSR), to which neither party objected, shows that he had no

prior criminal history, save for a juvenile offense which resulted

in no criminal history points.              Importantly, it contained no

information, or even any hint, that the defendant bore greater

culpability on a theory he had induced his young wife into his

criminal activity.

             Meléndez-López's two older half-brothers, along with her

stepfather     and   her   mother,   were    also   members   of   the   drug

conspiracy.      Indeed, a photograph, posted on Facebook, showed

Avilés-Santiago and Meléndez-López each holding weapons in the

company of her two older brothers.         She had pled guilty and, at age

21, been sentenced a month earlier before the same district judge.

The judge had shown her leniency and sentenced her to probation.

             Avilés-Santiago is two years older than Meléndez-López,

and he stated at sentencing that their relationship began when she

was 15.   The court reasoned that Avilés-Santiago had "dragged her"


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into the conspiracy, based on what the court had surmised from

sentencing his wife.   As said, no such theme appeared in the PSR.

Nor had Avilés-Santiago or his counsel been present at Meléndez-

López's sentencing hearing, nor was a transcript of that hearing

provided to Avilés-Santiago.

          When questioned by the court as to whether he had in fact

"dragged" Meléndez-López into the drug conspiracy, Avilés-Santiago

flatly denied the accusation, saying "[t]he truth is that I would

do my own thing, and I never said anything to her.   I would do my

thing, and I never said anything about it to her."   The court then

asked about the photograph.       Avilés-Santiago replied that the

picture was taken at a party and that he had been drinking heavily

at the time and "didn't even realize that that had happened."

          The district court also spoke explicitly about Meléndez-

López's sentencing hearing:

          THE COURT: You know that I sentenced Kimberly
          [Meléndez-López]; am I right?

          THE DEFENDANT:   Yes.

          THE COURT: And I determined when I sentenced
          Kimberly that she was a victim in a sense of
          your own wrongdoings. Do you understand that?

          THE DEFENDANT:   Yes.

          THE COURT:   You dragged her into this, and
          you're leaving behind two small kids, [ages]
          three and one. And in order -- for the sake
          of the kids, for the sake of the kids that are
          your kids, you know what I did? I gave her a
          probation sentence, exposing myself to a
          reversal, because I thought these kids would

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             not be without a mother.    There was no way
             that I could sleep that evening thinking that
             those two kids were going to be without a
             mother.

             THE DEFENDANT: I want to thank you for that
             from the bottom of my heart.

Defense counsel interjected that the evidence was that it was

Meléndez-López's two older brothers who gave her the firearms.

             Nonetheless, the court, based in part on its conclusion

that   Avilés-Santiago          had   dragged          Meléndez-López      into     the

conspiracy, sentenced Avilés-Santiago to 87 months, well above the

70-month    sentence     recommended       by    the    parties    under     the   plea

agreement    (but     nevertheless        within    the    sentencing      guidelines

range).

                                          II.

             We     review    criminal     sentences       under     the   sentencing

guidelines for abuse of discretion.                 Gall v. United States, 552

U.S. 38, 51 (2007).          Our inquiry proceeds in two steps.              First, we

determine whether the district court committed any procedural

error, and then, if we find none, we proceed to review the

substantive reasonableness of the sentence for abuse of discretion.

See United States v. King, 741 F.3d 305, 308 (1st Cir. 2014).

Here, we need not proceed past the first step.

             Avilés-Santiago argues that there was procedural error in

that the court relied on conclusions drawn from another sentencing

proceeding     at    which     he   was    not     present,    and    that    he    was


                                          -5-
disadvantaged as a result.          At no point prior to Avilés-Santiago's

sentencing was he or his counsel informed that his sentence stood

to be sharply increased beyond the recommendation agreed to in the

plea agreement on the basis of a co-defendant's sentencing hearing.

               The only piece of evidence referenced by the district

court    in    the    defendant's   sentencing    was   the   photograph   from

Facebook in which both the defendant and Meléndez-López are holding

guns.        Her brothers also appear in the photograph.            The photo

itself falls far short of establishing, on its own, that Avilés-

Santiago "dragged" Meléndez-López into anything, to say nothing of

the possibility that Meléndez-López acted of her own choice,

contrary to old gender stereotypes.

               We need not test the proposition that it is an acceptable

goal of sentencing to provide disincentive to individuals who

induce the primary caretaker, here the mother, of young children,

into criminal activity. The core problem here was a lack of notice

to the defendant: going into the hearing, neither he nor his

counsel had any forewarning that the proceeding's outcome would

turn    on    the    district   judge's    already-established    belief   that

Avilés-Santiago lured Meléndez-López into a pattern of criminal

activity.        More notice is required before a defendant can be

sentenced on the basis of a conclusion drawn from some other

proceeding.         Cf. United States v. Reynoso, 254 F.3d 467, 469 (3d

Cir. 2001) ("[W]e hold that before a sentencing court may rely on


                                          -6-
testimonial or other evidence from an earlier proceeding, it must

afford fair notice to both defense counsel and the Government that

it plans to do so.").

          Given the unusual circumstances of this case, we agree

there was procedural error and it prejudiced the defendant.   We do

not know if there is evidence to support the court's belief, but

there is none present in this record, and a sentence based on an

unsupported fact cannot stand.     See United States v. González-

Castillo, 562 F.3d 80, 83 (1st Cir. 2009) ("[B]asing a substantial

criminal sentence on a non-existent material fact threatens to

compromise the fairness, integrity, or public reputation of the

proceedings.").

                               III.

          The defendant's sentence is vacated, and the case is

remanded for resentencing.   We take no view as to the duration of

the sentence to be imposed on remand.




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