          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
          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).


                                - 2 -
          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


                                    - 3 -
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


                                    - 4 -
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


                                          - 5 -
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-

examine2   the   victim    to     demonstrate     that     the    testimony      was

unreliable.3     To drive home his point, he casts doubt on the




      2To 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."
      3Berrios 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


                                       - 6 -
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.


                                       - 7 -
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


                                   - 8 -
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))).


                               - 9 -
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).




                                   - 10 -
             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


                                  - 11 -
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.




                               - 12 -
