          United States Court of Appeals
                     For the First Circuit


No. 17-1346

                    UNITED STATES OF AMERICA,

                            Appellee,

                               v.

                      JOSUE MARRERO-PÉREZ,

                      Defendant, Appellant.


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

         [Hon. Francisco A. Besosa, U.S. District Judge]


                             Before

                 Torruella, Boudin, and Barron,
                         Circuit Judges.


     Rick Nemcik-Cruz on brief for appellant.
     Rosa Emilia Rodríguez-Vélez, United States Attorney, Mariana
E. Bauzá-Almonte, Assistant United States Attorney, Chief,
Appellate Division, and Julia M. Meconiates, Assistant United
States Attorney, on brief for appellee.


                        January 25, 2019
           BOUDIN, Circuit Judge.          Police officers in Puerto Rico

received a tip as to the whereabouts of Josue Marrero-Pérez

("Marrero"),    who   had     left    Delaware    to    evade   arrest    on   an

outstanding warrant.        Locating him at his premises in Puerto Rico,

they discovered in plain view in the building a Glock pistol and

a Smith & Wesson semiautomatic pistol, each loaded with ammunition.

They arrested him and a grand jury indicted him on two counts of

possessing a firearm while prohibited from doing so because of a

prior felony conviction, 18 U.S.C. § 922(g)(1), and because of his

fugitive status, id. § 922(g)(2).

           Without a plea bargain, Marrero pled guilty to both

charges.      The   final    presentence      investigation     report   ("PSR")

recommended that the guidelines range be fixed at 37-46 months in

prison, based on a recommended total offense level of 17 and a

recommended    criminal     history    category    of   IV.     The   probation

officer's report set out an ominous criminal record, some of whose

detail and characterizations Marrero disputes in this appeal.

According to the report, as a juvenile Marrero behaved violently

and was arrested regularly, and as an adult he had been convicted

twenty times including for assault, drug violations, resisting

arrests and possessing a firearm with an obliterated serial number.

           The PSR advised that Marrero's category IV designation

substantially understated his criminal history and likelihood of

further crimes, suggesting as options an upward departure or a


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variant sentence.     The PSR had been available to Marrero and his

lawyer but no objection was made to the report, and at sentencing

defense counsel stated that he had reviewed the PSR prior to that

hearing.    He did not object to the report at any time before the

sentence.

            At sentencing, after hearing Marrero's allocution and

his lawyer's request for a sentence at the lower end of the

proposed range, the court said that Marrero's record called for an

upward   departure.   See   U.S.S.G.   §   4A1.3(a)(1).   As   the   judge

concluded at sentencing,

     Mr. Marrero's vast prior record, as reflected in the
     pre-sentence investigation report and history of
     convictions, indicates that his Criminal History
     Category substantially underrepresents the seriousness
     of his offense or the likelihood that he will commit
     other crimes. . . . Mr. Marrero has been arrested at
     least 44 times during his life . . . . As an adult, Mr.
     Marrero has more than 20 convictions . . . . According
     to documentation received from the probation officer, in
     the District of Delaware, Mr. Marrero has the following
     known history of warrants: 25 failure to appear, 13
     violations of probation, and 28 failures to pay, all of
     which is consistent with Mr. Marrero's utter disregard
     for the law and high[] likelihood of recidivism.

            The district court imposed a variant sentence of 72

months, itself in excess of the 60-month upward variance proposed

by the government.       The most difficult issue on this appeal

concerns the possibility that the judge at sentencing relied in

his upward variance on prior arrests of the defendant which did




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not result in convictions; Marrero also objects to a lack of detail

in other cases where the conviction is conceded.

              In   addition   to    the    PSR,     documents   concerning

outstanding warrants in Delaware were apparently provided by the

probation officer to the court; this information was not included

in the PSR but was referred to by the court at sentencing.        Marrero

now suggests that it is a "fair inference" from the sentencing

transcript that these documents were provided to the court ex parte

and should have been tested at a hearing.

             Marrero's strongest arguments are that the sentencing

judge (1) relied on past arrests listed in the PSR (usually

involving at worst trivial conduct), many of which did not result

in prosecution or conviction, and (2) relied on ex parte documents

which were not timely disclosed to the defense.

             We agree that as a matter of judicial policy, in this

case and henceforth, no weight should be given in sentencing to

arrests not buttressed by convictions or independent proof of

conduct.     See U.S.S.G. § 4A1.3(a)(3).          In certain perhaps rare

cases,   a   reasonable   person   might   in   particular   circumstances

assign some weight to a collection of arrests, but no such argument

is made or available here.          To rely on acquitted conduct in

sentencing was troublesome enough even where the government needed

to provide only preponderant proof rather than proof beyond a




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reasonable doubt, see United States v. Watts, 519 U.S. 148, 152

(1997) (per curiam); proof only of an arrest is no proof of guilt.

             As for lack of detail, the PSR offers nothing as to the

substance of the juvenile conduct for seven of the ten arrests;

and no facts are provided for ten of the twenty adult convictions

beyond the fact of conviction; whether in most cases more is

required   is    more   doubtful.          But    other   arrests   resulted    in

proceedings     that    were   nolle      prossed    or   otherwise   terminated

without a trial or a guilty plea.

             Subtracting allegations in the PSR for which there are

no detailed records or for which no conviction resulted, much

remains that is unhelpful to Marrero, and serious prior crimes and

recidivist      behavior   are      of   course     proper   considerations    at

sentencing. 18 U.S.C. § 3553(a)(1)-(2)(C).                   How unhelpful is a

judgment call largely confided to the sentencing judge, who is in

a good position to make such individualized assessments.                See Gall

v. United States, 552 U.S. 38, 51-52 (2007).

             Reliance on arrests alone or other dubious inferences to

enhance a criminal sentence might be thought to offend the often

invoked    "presumption        of    innocence,"       but    historically     the

presumption has governed only the trial itself.                United States v.

Doyle, 348 F.2d 715, 721 (2d Cir. 1965) (Friendly, J.).                Thus, at

sentencing judges have long been free to rely on anything useful




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that is established by a preponderance of the evidence, without

regard to ordinary rules of trial evidence.1

            The line between the criminal trial itself and almost

everything afterwards is sharp, enshrining the care and protection

afforded    to   the   defendant   at     the    trial.      The    comparative

informality of everything after the guilty verdict has practical

advantages and is too well settled for debate.             The Supreme Court

may on a rare occasion arguably seem to extend the presumption of

innocence   beyond     its   historical    core,    see,    e.g.,    Nelson   v.

Colorado, 137 S. Ct. 1249 (2017), but not yet in any discernable

pattern directly relevant to a sentencing hearing.

            Marrero's failure to object to the sentence based on

the   judge's    possible    reliance     on    arrests    not   resulting    in

conviction does not insulate the district judge's purported error

from review by this court--even under the plain error test--and

this circuit has several times warned over a three-year period

against reliance on arrests as a proxy for criminal culpability or

the likelihood of recidivism.      United States v. Rondón-García, 886

F.3d 14, 25-26 (1st Cir. 2018); United States v. Delgado-Sánchez,

849 F.3d 1, 13 (1st Cir. 2017); United States v. Cortés-Medina,


      1See McMillan v. Pennsylvania, 477 U.S. 79, 91 (1986); Taylor
v. Kentucky, 436 U.S. 478, 483 n.12 (1978); United States v.
Gonzalez-Vazquez, 34 F.3d 19, 25 (1st Cir. 1994); see also In re
Whitney, 421 F.2d 337, 338 (1st Cir. 1970) (presumption of
innocence does not apply to probation revocation).



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819 F.3d 566, 570 (1st Cir. 2016).         In sum, to equate arrest with

guilt is by now both error and obviously so.

           Material about past offenses may be furnished wholesale

to the probation officer by the government's lawyer and probably

as often adopted by the probation officer without much scrutiny--

counting on defense counsel to object if warranted.                So far as

appears, no such objection was advanced here, so the judge ended

up with a package of allegations, correctly believing that defense

counsel   never   disputed   the   underlying   facts   or   the    negative

inferences one might draw from them.         The crimes proved by adult

convictions, without more, may well have justified an upward

variance. U.S.S.G. § 4A1.3(a)(1).      This is a classic issue for the

district judge and would be tested, even if the objection had been

made and preserved, only for abuse of discretion.              See United

States v. Vázquez-Martínez, 812 F.3d 18, 26 (1st Cir. 2016).

           Given the lack of objection, the ordinary test is for

plain error, United States v. Sosa-González, 900 F.3d 1, 4 (1st

Cir. 2018), which requires that a defendant show that (1) an error

occurred, (2) the error was obvious, (3) the error affected

substantial rights, and (4) the error seriously impaired the

fairness, integrity, or public reputation of judicial proceedings,

see Constant v. United States, 814 F.3d 570, 580 (1st Cir. 2016).

Other statements by this court stress particular aspects of the




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test pertinent to the case at hand, but the stress is almost always

on one or more of the factors set forth in Constant.2

          Applying the Constant formulation, we think that an

error occurs when a district judge relies on an arrest report,

without some greater indicia of reliability that the conduct

underlying the arrest took place; the "obviousness" of the error

is a matter of degree but becomes greater with every new case;

whether the error affects the outcome depends on the facts peculiar

to the case (e.g., the presence or absence of corroborating

evidence in the record concerning the conduct underlying the

arrests   without   convictions);   and   the   fourth   factor--the

"miscarriage of justice" standard, Alicea, 205 F.3d at 484--is

implicated if the sentence has truly been altered by the arrests,

itself a matter that the district judge can readily lay to rest on

remand.

          While the record permitted a variance upward on the basis

of convictions, we think that Marrero has made a strong enough

case that the sentencing judge relied on these past arrests in




     2 See Rondón-García, 886 F.3d at 24 (noting that for an error
to have affected a defendant's substantial rights, a defendant
must show that there is a "reasonable probability that, but for
the error, the district court would have imposed a more favorable
sentence" (internal quotation marks omitted)); United States v.
Saxena, 229 F.3d 1, 5 (1st Cir. 2000) (describing the final prong
of the plain error test as a "miscarriage-of-justice standard"
(citing United States v. Alicea, 205 F.3d 480, 484 (1st Cir.
2000))).


                               - 8 -
determining the sentence.            Here, the specific conduct underlying

the dismissed charges was not, as sometimes happens, set forth in

undisputed portions the PSR.              See Mercer v. United States, 834

F.3d 39, 50 (1st Cir. 2016).           Finally, the sentencing judge stated

on the record that "Mr. Marrero's vast prior record" and the fact

that he "has been arrested at least 44 times during his life,"

along     with   other   factors,      were   "consistent   with   [his]   utter

disregard for the law and high[] likelihood of recidivism."

             It is enough to warrant a remand that the reliance on

such arrests--now an obvious error--"set the wrong framework for

the sentencing proceedings," Molina-Martinez v. United States, 136

S. Ct. 1338, 1345 (2016).            Marrero is not in turn required to show

that this obvious error in fact influenced the length of the

sentence, a showing that in most cases will be nearly impossible

for   a   defendant      to   make    given   the   kitchen-sink   approach   to

sentencing pronouncements adopted by many judges. Cf. id. at 1347.

             While the lack of objections throughout usually would

defeat a defendant's effort to seek a remand, this course would

merely defer the matter to a likely habeas proceeding directed at

trial counsel's competence.             A predictable habeas petition would

prolong and further complicate proceedings and ultimately cost

time and trouble for judge and counsel alike, and the defendant

would already be serving his sentence when, a year or two later,

he would discover its duration.


                                        - 9 -
           Our concerns are reinforced not by the lack of detail

regarding the facts underlying the convictions--that is common,

see, e.g., United States v. Turbides-Leonardo, 468 F.3d 34, 37

(1st Cir. 2006), and only occasionally troublesome--but by the

second argument raised by Marrero, that is, the still not fully

explained material submitted ex parte by the probation officer to

the court concerning certain outstanding warrants in Delaware.

The record is not clear on this point, but it appears that defense

counsel did not object at the sentencing hearing.    Rather, at the

end of miscellany (e.g., which prison the judge might recommend

for Marrero), defense counsel said only that he wanted some

documentation that the probation officer had employed (it appears

that defense counsel had declined earlier to review it).     He did

ask for his own copy at the end of the hearing and this the court

granted.

           A remanding appeals court has authority to shape a remand

as circumstances warrant, see United States v. Correy, 570 F.3d

373, 378 (1st Cir. 2009).    Whether or not the conduct underlying

the prior arrests can be shown by a preponderance of the evidence

--and whether that matters to the district judge--is for him to

say on remand, but either way public confidence will be served by

an explicit answer.    The defendant can also pursue the issue of

the basis and impact of the ex parte material; but here the




                               - 10 -
district judge is free to take into account the lack of timely

objection.

             Ex parte communication between the probation officer and

the court is usually permissible where the court is merely seeking

advice or analysis, United States v. Bramley, 847 F.3d 1, 7 (1st

Cir. 2017); to some extent the probation office is an extension of

the district court, see United States v. Saxena, 229 F.3d 1, 5 n.1

(1st Cir. 2000), and the probation officer and the court may

consult   privately   about   certain   issues   incident   to   criminal

sentencing, see United States v. Fraza, 106 F.3d 1050, 1056 (1st

Cir. 1997).     But where the probation officer discloses new facts

that bear on the judge's sentencing calculus, cf. United States v.

Craven, 239 F.3d 91, 102 (1st Cir. 2001), the general rule requires

disclosure to the defense in advance of the sentencing hearing and

an opportunity to subject the new material "to whatever adversarial

testing may be appropriate," Bramley, 847 F.3d at 7.

             The ex parte material in this case, the outstanding

warrants in Delaware, are pretty thin as against defendant's own

criminal record but might suggest a proclivity for lawlessness or

at best a disrespect for the court system.          If the information

about the warrants was not included elsewhere in the record or

made known to Marrero prior to sentencing, reliance on this

information at sentencing would also have been error.        See United

States v. Millán-Isaac, 749 F.3d 57, 70 (1st Cir. 2014).


                                - 11 -
          Marrero's   counsel   may   well   have   received   adequate

advanced notice of the ex parte material and simply declined to

review it, as was true with other material; Marrero says only that

it is a "fair inference" from the sentencing transcript that the

material was provided ex parte.    Whatever happened, the facts and

the consequences are for the district court's consideration on

remand.

          The sentence is vacated and the matter remanded for

resentencing in accordance with this decision.      It is so ordered.




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