          United States Court of Appeals
                     For the First Circuit


No. 14-2147

                         UNITED STATES,

                            Appellee,

                               v.

         ALEXANDER RODRÍGUEZ-MELÉNDEZ, a/k/a Cinco Mil,

                      Defendant-Appellant.


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

        [Hon. Aida M. Delgado-Colón, U.S. District Judge]


                             Before

                       Howard, Chief Judge,
                Lipez and Barron, Circuit Judges.


     Rick Nemcik-Cruz on brief for appellant.
     Rosa Emilia Rodríguez-Vélez, United States Attorney, Nelson
Pérez-Sosa, Assistant United States Attorney, Chief, Appellate
Division, and Francisco A. Besosa-Martínez, Assistant United
States Attorney, on brief for appellee.


                          July 8, 2016
            LIPEZ, Circuit Judge.           After serving a prison term for

a drug trafficking offense, appellant Alexander Rodríguez-Meléndez

admitted    to    possessing      a   firearm     in   furtherance    of   a    drug

trafficking crime in violation of the conditions of his supervised

release.     The    district      court    revoked     supervised    release    and

sentenced   him    to   36    months     imprisonment.       Rodríguez-Meléndez

appeals,    arguing     that       his    sentence     was   procedurally       and

substantively unreasonable.

            We     conclude       that    his     sentence   was     procedurally

unreasonable because it was premised on purported facts from

Probation Office records, directly contrary to the facts contained

in   the    relevant       Presentence          Investigation    Report     (PSR).

Accordingly, we vacate the sentence and remand for resentencing.1

                                          I.

            After completing a prison sentence for conspiracy to

possess    with   intent     to   distribute      narcotics,    appellant      began

serving an eight-year term of supervised release on June 14, 2012.

On January 31, 2014, police executed a search warrant on his home

and vehicle, and seized a .40 caliber pistol, two magazines

containing 22 rounds of .40 caliber ammunition each, and at least

40 grams of cocaine.         Based on that search, the Probation Office



     1 In light of this disposition, we do not address appellant's
argument of substantive unreasonableness. We intimate no view on
that issue.


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filed a motion to show cause alleging that appellant had violated

the conditions of his release by:        committing a federal crime, see

U.S.S.G. § 5D1.3(a)(1), possessing a firearm and ammunition, see

id. § 5D1.3(d)(1), and possessing a controlled substance, see id.

§§ 5D1.3(a)(2), (c)(7).       Appellant received a copy of the motion,

which explained the factual basis of the allegations as described

above.     He   subsequently       conceded   that   he   had    violated     the

conditions of his release by committing a new federal offense

involving possession of a firearm. In a separate proceeding before

a different judge, appellant pled guilty to possessing a firearm

in   furtherance   of   a   drug   trafficking   crime.         See   18   U.S.C.

§ 924(c)(1)(A). He has acknowledged that revocation was mandatory.

See id. § 3583(g)(2) (requiring revocation for possession of a

firearm in violation of the conditions of release).

           At the revocation hearing, which focused on sentencing

because appellant had already conceded his violation, appellant

argued that the court ought to consider his role as the provider

for his family and reduce his sentence accordingly.               Unconvinced,

the district court imposed 36 months imprisonment -- the maximum

permitted by statute,2 six months more than the high end of the




      2Appellant's original conviction was a Class B felony. Where
the basis for imposing a term of supervised release is a Class B
felony, the maximum sentence for violating the conditions of
supervised release is 36 months. 18 U.S.C. § 3583(e)(3).


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applicable Sentencing Guidelines range,3 and 12 months more than

the government's recommendation.4

          Before arriving at that sentence, the district court

said that, in its view, appellant was "not adjusting well" to life

outside prison. It premised this conclusion in part on information

"within the record of the probation office . . . that during the

term of supervision [appellant] tested positive a couple of times."

It mentioned this point twice, and later recommended that appellant

receive drug treatment in prison.   The court expressed particular

concern that appellant had returned to bad behavior shortly after

his release, i.e., he "tested positive a couple times" and was

caught with drugs and a gun within 18 months.      In the court's

words, "it was not too long after he was released on supervision

that he began to experience difficulties."   The probation officer

present at the hearing did not comment on the matter.5


     3 Appellant's offense under 18 U.S.C. § 924(c)(1)(A) was a
Grade A violation of the conditions of supervised release.
U.S.S.G. § 7B1.1(a)(1); United States v. Ortiz-García, 665 F.3d
279, 285 (1st Cir. 2011).     Given appellant's Criminal History
Category of IV, the Guidelines recommended that he serve 24 to 30
months of his supervised release in prison. U.S.S.G. § 7B1.4(a).
     4 Appellant was later sentenced to the mandatory minimum of
five years in prison in the parallel proceeding, as recommended by
the Sentencing Guidelines.       See 18 U.S.C. 924(c)(1)(A)(i);
U.S.S.G. § 2K2.4(b).     That sentence runs consecutive to the
revocation sentence imposed in this case. See U.S.S.G. § 7B1.3(f).
     5 The probation officer did contribute additional background,
informing the court that appellant had been under criminal
investigation after his release.     Appellant believes that this
disclosure prejudiced him in the eyes of the court.      Appellant


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              The court's observation that Probation Office records

indicated      that   appellant       had   "tested    positive"    during   his

supervised release ran directly contrary to what we know of the

Probation Office's records. Two days earlier, the Probation Office

issued    a    PSR    in    appellant's     parallel     criminal     proceeding

indicating that "urine tests collected by the U.S. Probation

officer yielded negative results to all drugs tested," and that

"during his federal supervised release term, the defendant has not

ingested any illegal drugs."

              After discussing appellant's poor adjustment to life

outside of prison, the court justified the 36-month prison term

with reference to the breach of trust created by the violation of

the conditions of supervised release, in combination with "the

danger posed to the community by possess[ion of] a weapon."                  See

U.S.S.G. Ch. 7, Pt. A(3)(b).           Rodríguez-Meléndez timely appealed,

arguing   that    his      sentence   was   procedurally   and     substantively

unreasonable.




reads the court's statement that "the authorities were looking at
you and that led to you having this weapon at your house" to
indicate that the court believed that the investigation somehow
caused him to obtain a weapon. We read the transcript differently.
In context, it appears to be a statement of chronology, not
causation, simply stating that the criminal investigation began
before appellant was caught with a firearm. In all, the district
court seemed unperturbed by the fact that appellant was being
investigated after his release, noting that "charges did not
materialize" from that investigation, which was "to the
defendant[']s benefit" at sentencing.


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                                       II.

          As      with   sentences      imposed    following    a    criminal

conviction,    we    ordinarily   review      sentences   imposed   following

revocation of supervised release for abuse of discretion.             United

States v. Wright, 812 F.3d 27, 30 (1st Cir. 2016); United States

v. Santiago-Rivera, 594 F.3d 82, 84 (1st Cir. 2010).                However,

appellant failed to raise his claims below, and concedes that the

applicable standard is plain error.           See United States v. Dávila-

González, 595 F.3d 42, 47 (1st Cir. 2010).                For appellant to

prevail, he therefore must show "(1) that an error occurred (2)

which was clear or obvious and which not only (3) affected the

defendant's substantial rights, but also (4) seriously impaired

the   fairness,     integrity,    or     public   reputation   of   judicial

proceedings."       United States v. Roy, 506 F.3d 28, 30 (1st Cir.

2007) (quoting United States v. Duarte, 246 F.3d 56, 60 (1st Cir.

2001)).


                                       III.

          We confront a situation in which the sentencing court

cited and relied upon a fact that was demonstrably false.                 See

Gall v. United States, 552 U.S. 38, 51 (2007) (stating that

"selecting a sentence based on clearly erroneous facts" is an abuse

of discretion); United States v. Portalla, 985 F.2d 621, 622 (1st

Cir. 1993) (noting that evidence used in revocation hearings must




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be "reliable").       The district court twice asserted that appellant

had tested positive for controlled substances while on release,

attributing that information to Probation Office records.                               Yet,

the only Probation Office record of which we are aware -- the PSR

served two days prior to the sentencing proceeding here -- negates

that assertion.        The government does not dispute that appellant

never   tested      positive   for   controlled     substances             or    cite    any

evidence that he used controlled substances while on supervised

release.      As a result, in the parallel criminal case, a district

court handed down a within-Guidelines sentence premised on an

accurate view of the facts supplied by the Probation Office, while

in this revocation case, the district court imposed an above-

Guidelines sentence based on an erroneous understanding of the

same Probation Office records.

              The    government's     argument          to     the     contrary           is

unconvincing.        The government argues, essentially, that "at no

time    was   Rodríguez-Meléndez      accused      of    testing       positive          for

illegal drugs," and that he was instead accused by the Probation

Office of "excessive use of alcohol," suggesting that the court

must have been referring to alcohol rather than drugs.                          Yet, while

it is true that appellant was not accused by the Probation Office

of   using    controlled   substances,        he   was       also    not    accused       of

excessive use of alcohol.        To the contrary, appellant was alleged

to have violated Standard Condition 7, which required him to


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"refrain from excessive use of alcohol and . . . not purchase,

possess, use, distribute, or administer any controlled substance."

U.S.S.G. § 5D1.3(c)(7).       In context it is clear that the Probation

Office was accusing appellant under the possession of controlled

substances prong, rather than the alcohol prong, of that condition.

The Probation Office's motion did not otherwise mention alcohol,

and there is no indication that appellant had in fact abused

alcohol while on supervised release.       Further, it would be unusual

to use the term "test positive" in reference to alcohol.               The

district court's statement at the outset of the revocation hearing,

that appellant "also violated condition number 7 requiring him to

refrain from excessive use of alcohol," thus appears to be a

shorthand reference to the text of Standard Condition 7, not an

indication that any alcohol abuse had been alleged.             Hence the

court's   insistence   that    appellant   had   tested   positive   was   a

reference to the use of controlled substances while on release, a

clear and obvious error, establishing the first two prongs of the

plain error analysis.     See Roy, 506 F.3d at 30.

             We also conclude that there is "a reasonable probability

that, but for the error, the district court would have imposed a

different,     more   favorable    sentence,"    and   that,   therefore,

appellant's substantial rights have been affected.          United States

v. González-Castillo, 562 F.3d 80, 83 (1st Cir. 2009) (quoting

United States v. Perazza-Mercado, 553 F.3d 65, 78 (1st Cir. 2009)).


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The court's erroneous belief that appellant had used drugs was not

the most important factor in its sentencing decision.                         We do not

doubt    that    the    sentence   was      driven    primarily     by     appellant's

commission of a second drug trafficking crime and the danger posed

by his possession of a loaded weapon.                  But the district court's

repeated references to the positive drug tests, which it saw as

evidence that appellant was not adjusting well to life outside

prison, indicate that the drug issue was a salient one in its

analysis.       There is a reasonable probability that, absent the

aggravating drug use factor, the court would have chosen a sentence

below the maximum.

            Finally, we conclude that the reliance of the court on

a   demonstrably        wrong   fact   in    imposing       its   sentence      for   the

violation    of       supervised   release       is   an    error   that      "seriously

impair[s]       the    fairness"   and      "public        reputation    of    judicial

proceedings."         Roy, 506 F.3d at 30 (quoting Duarte, 246 F.3d at

60).     Two courts imposed sentences in related cases, one within

the Guidelines range, one above it, relying on mutually exclusive

facts.    To protect the fairness and integrity of the sentencing

process, the district court should impose a sentence in this

revocation proceeding based on a correct view of the facts. Hence,

we vacate the judgment of the district court.



            So ordered.


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