United States Court of Appeals

For the First Circuit

No. 22-1116

UNITED STATES OF AMERICA,

Appellee,

v.

WESLEY PORTELL-MÁRQUEZ,

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF PUERTO RICO

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

Before

Kayatta, Howard, and Thompson,

Circuit Judges.

Héctor Sueiro Álvarez, with whom Eric Alexander Vos, Federal 

Public Defender, and Franco L. Pérez-Redondo, Assistant Federal 

Public Defender, were on brief, for appellant. 

David C. Bornstein, with whom W. Stephen Muldrow, United 

States Attorney, Mariana E. Bauzá-Almonte, Assistant United States 

Attorney, Chief, Appellate Division, and Julia M. Meconiates, 

Assistant United States Attorney, were on brief, for appellee.

February 10, 2023
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HOWARD, Circuit Judge. Having received the same 

incarcerative sentence on remand that had been imposed prior to 

his previous sentencing appeal, Wesley Portell-Márquez ("Portell") 

challenges the imposition of his sentence of twenty-four months' 

imprisonment for violating the terms of his supervised release. 

Concluding that the sentence is both procedurally and 

substantively reasonable, we affirm. 

I. BACKGROUND

On October 1, 2019, Portell completed a thirty-sevenmonth term of imprisonment for possession of a firearm following 

a felony conviction, see 18 U.S.C. § 922(g)(1), and began a threeyear term of supervised release. Fifteen months into his term of 

supervised release, Puerto Rico police officers intervened in a 

domestic dispute between Portell and his pregnant consensual 

partner. Portell was charged with two counts of aggravated abuse 

pursuant to Article 3.2 of Puerto Rico's Domestic Violence law.1

Portell's probation officer subsequently informed the district 

court that Portell had violated two separate conditions of his 

supervised release that prohibited his commission of any federal, 

state, or local crimes during the period of supervised release. 

The probation officer's motion summarized the allegations 

1 Prior to Portell's revocation hearing in federal court, the 

state-court complaint against Portell was dismissed pursuant to 

Puerto Rico's speedy trial requirements.
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contained in the state criminal complaint against Portell,

including that Portell had pushed and punched his partner and had 

broken her cell phone. 

The district court held a revocation hearing on May 14, 

2021. At the hearing, Portell admitted to violating the two 

conditions of his supervised release, informing the court that "he 

[wa]s not contesting the violations to the mandatory conditions 

one and two, which were that he must not commit another crime, in 

this case Article 3.2 of the Puerto Rico Domestic Violence Law,"

and that he was not contesting "docket entry 70, the motion filed 

by the probation officer."

The hearing thus focused primarily on the issue of an 

appropriate sentence. As to this, Portell argued that, properly 

categorized, his conduct constituted a grade B violation, that the 

appropriate guidelines range was eight to fourteen months' 

imprisonment, and that a sentence of fourteen months was 

appropriate given "the seriousness of the allegations" which 

warranted a sentence at "the higher end of the guidelines." 

Portell further represented to the court that this was his first 

domestic violence incident and that he was willing to attend 

couples therapy or anger management courses if the court deemed 

those necessary to his rehabilitation. On the question of the 

violation grade, the government deferred to the probation officer,

who contended that the violation was a grade A violation. The 
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government then focused on "the gravity" of Portell's violation,

noting that he broke the victim's cell phone; forcefully pushed 

her with both hands; and punched her in the face, which broke her 

lip and required her to receive medical attention. The government 

also stressed that the victim obtained an ex parte protection order 

based on her fear for her security and indeed her life. 

Acknowledging that Portell had "accepted that he committed the 

violations," and weighing that against their seriousness, the 

government argued for a sentence of eighteen months' imprisonment. 

Given an opportunity to respond, Portell did not object to the 

government's discussion or characterization of the facts alleged 

in the complaint; instead, Portell reiterated that he believed his 

conduct was a grade B violation and that the seriousness of the 

offense warranted a sentence at the higher end of the guidelines. 

The court determined that Portell's was a grade A 

violation and calculated his Guidelines incarcerative range to be 

eighteen to twenty-four months. The court then imposed a sentence

of twenty-four months' imprisonment, explaining that the sentence 

was warranted "[t]o reflect the seriousness of the offense, promote 

respect for the law, provide just punishment for the offense, 

afford adequate deterrence, and to protect the public from further 

crimes by Mr. Portell." In doing so, the court specifically noted 

that "the State Court documents reflect that Mr. Portell physically 

assaulted his pregnant consensual partner by punching her with his 
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fist -- punching her mouth with his fist, breaking her cell phone, 

and pushing her." Following the announcement of the sentence, 

Portell objected "to the finding of a grade A violation," 

reiterated his argument that he had committed only a grade B 

violation, and, on that sole basis, objected to the substantive 

and procedural reasonableness of the sentence. 

On Portell's appeal to this court, the government 

conceded that the grading analysis conducted in the district court 

was erroneous. We agreed, and in an order of judgment, vacated 

and remanded to the district court on the grounds that the district 

court's violation-grading process and conclusion were inconsistent 

with our circuit's precedent. United States v. Portell-Márquez, 

No. 21-1447, 2021 WL 5458605 at *1-2 (1st Cir. Nov. 22, 2021). In 

that decision, we specifically noted that "[a]t the final 

revocation hearing, [Portell] did not challenge the contents of 

the operative violation report, but he did argue that the 

violations should be treated as grade B violations for sentencing 

purposes." Id. at *1.

On remand, the district court concluded that Portell's 

was indeed a grade B violation and calculated his guidelines range 

to be eight to fourteen months. Portell again argued that a 

fourteen-month sentence was appropriate and informed the court 

that he would be receiving treatment for his anger management 

issues. The court then explained that it had "taken into 
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consideration the factors set forth in [18 U.S.C. § 3553(a)], and 

the seriousness of Mr. Portell's violations" and that it found his 

violations to "reflect[] his complete lack of respect for the law, 

the supervision process, and conditions of supervised release 

imposed by this [c]ourt" and that "his original sentence [for the 

original firearms offense] did not serve the objective of 

punishment or deterrence." The court then imposed an upwardlyvariant sentence of twenty-four months of imprisonment, the same 

length it had imposed after the original revocation hearing (and 

the court also included an additional eighteen month term of 

supervised release). In doing so, the court reiterated that "the 

state court documents reflect that Mr. Portell physically 

assaulted his pregnant consensual partner by pushing her and 

punching in the mouth with his fist and breaking her cell phone." 

Portell once again objected to the procedural and substantive 

reasonableness of the sentence, arguing that it was improper for 

the court to consider the state-court complaint and that, without 

the complaint, there was no evidence or basis on which the court 

could justify the above-guidelines sentence. 

II. DISCUSSION

A.

We review the sentence imposed following the revocation 

of supervised release for abuse of discretion. United States v. 

Wright, 812 F.3d 27, 30 (1st Cir. 2016). Within this abuse of 
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discretion review, "[w]e review factual findings for clear error, 

arguments that the sentencing court erred in interpreting or 

applying the guidelines de novo, and judgment calls for abuse of 

discretion simpliciter." United States v. Laureano-Pérez, 797 

F.3d 45, 80 (1st Cir. 2015) (quoting United States v. Serunjogi, 

767 F.3d 132, 142 (1st Cir. 2014)).

B.

Portell appeals the sentence imposed by the district 

court as both procedurally and substantively unreasonable, arguing 

that the court lacked a sufficient basis on which to justify its 

upwardly-variant sentence. According to Portell, the record was 

devoid of specific information regarding the conduct underlying 

his arrest, and thus the sentencing judge necessarily obtained 

that information from, and premised the variance on, the Spanishlanguage state-court criminal complaint in violation of the Jones 

Act. See 48 U.S.C. § 864 ("All pleadings and proceedings in the 

United States District Court for the District of Puerto Rico shall 

be conducted in the English language."); United States v. MillánIsaac, 749 F.3d 57, 64 (1st Cir. 2014) ("As a consequence [of the 

Jones Act], federal judges must not consider any untranslated 

documents placed before them."). Portell's challenge fails, 

however, because the district court did not rely on the Spanishlanguage complaint to justify its sentence. The district court 

instead relied on the probation officer's motion, and, critically, 
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Portell's admission to the conduct described in that motion which 

provided a sufficient basis on which the district court justified 

its sentence. 

i.

At sentencing, a "court may 'consider evidence including 

letters, affidavits, and other material that would not be 

admissible in an adversary criminal trial.'" United States v. 

Colón-Maldonado, 953 F.3d 1, 3 (1st Cir. 2020) (quoting Morrissey

v. Brewer, 408 U.S. 471, 489 (1972)). However, the evidence 

considered by the district court in determining an appropriate 

sentence must be reliable. Id. (citing United States v. Portalla, 

985 F.2d 621, 622 (1st Cir. 1993)); see also United States v. 

Mills, 710 F.3d 5, 15 (1st Cir. 2013) ("[T]he court can consider 

all kinds of relevant information regardless of admissibility at 

trial (including hearsay that has never been tested by crossexamination), provided it has 'sufficient indicia of reliability 

to support its probable accuracy.'" (quoting U.S.S.G. § 6A1.3)). 

"[T]he court has considerable leeway in deciding whether 

particular evidence is reliable enough for sentencing purposes, 

and we review only for abuse of discretion.'" Mills, 710 F.3d at 

16. 

Accordingly, while we have held that "a sentencing court 

may not rely upon a bare arrest record or mere charges 'unsupported 

by any admission or some other evidence' . . . [to] vary[] above 
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the Guidelines based on the statutory sentencing factors 

enumerated in 18 U.S.C. § 3553(a)," see United States v. RiveraRuiz, 43 F.4th 172, 181-82 (1st Cir. 2022) (emphasis added)

(quoting United States v. Catillo-Torres, 8 F.4th 68, 71 (1st Cir. 

2021)), we have also held that, where the allegations in an arrest 

report or similar document are buttressed by some other evidence 

providing the requisite sufficient indicia of reliability that the 

conduct underlying the arrest occurred, a court is not precluded 

from considering the arrest and conduct underlying it at 

sentencing, id. at 184. We have found such indicia of reliability 

to be present where the defendant either affirmatively admitted to 

the conduct underlying the arrest or unproven charges, or did not 

object to a presentence investigation report ("PSR") setting forth 

the conduct. See id. (finding that "the district court acted 

within its discretion in relying upon [an administrative] 

complaint" because the defendant had not objected to the 

description of events underlying the complaint in a PSR and thus 

"the record supported a finding that the underlying conduct more 

likely than not occurred"); see also United States v. DávilaBonilla, 968 F.3d 1, 10 (1st Cir. 2020) (no error in district 

court's consideration of a dismissed local charge at sentencing 

because the defendant's "unobjected-to admissions to the 

preparer's report provide some greater indicia of reliability that 

the actions triggering the arrests occurred") (internal quotations 
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and citation omitted); United States v. Rodríguez-Reyes, 925 F.3d 

558, 565 (1st Cir. 2019) (finding that unobjected-to portions of 

the defendants' PSR which described earlier arrests "provide[d] 

'some greater indicia of reliability,' beyond the mere fact of 

arrest, 'that the conduct underlying the arrest[s] took place'") 

(alterations in original) (quoting United States v. Marrero-Pérez, 

914 F.3d 20, 24 (1st Cir. 2019)). Further, "we have held that a 

sentencing court may consider arrests not leading to convictions 

where '[t]here is no reason . . . given [defendant's] failure to 

contest the facts [in the PSR] and the absence of any acquittal, 

to doubt that these facts occurred.'" Id. (alterations in original) 

(quoting United States v. Tabares, 951 F.2d 405, 411 (1st Cir. 

1991) (Breyer, J.)). 

While these cases primarily dealt with a defendant's 

admission, or failure to object, to conduct as described in a PSR, 

we can fathom no principled reason for applying a different rule 

where, as here, the defendant's admission is instead made to a 

probation officer's motion identifying violations of supervised 

release conditions. In such a situation, a district court may 

rely on that admission as demonstrating reliably that the conduct 

alleged occurred, just as we have previously held that it may do 

so where the admission is made to conduct described in a PSR. 
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ii.

Here, Portell admitted to the conduct alleged in the 

probation officer's motion and this admission provided the 

district court with a sufficiently reliable evidentiary basis to 

conclude that the conduct underlying the arrest occurred and to 

consider that conduct, as described in the motion and admitted by 

Portell, at sentencing. 

Portell argues that the district court misunderstood the 

scope of his admission, claiming that while he admitted to 

violating Article 3.2, and thus the conditions of his supervised 

release, he did not admit to any specific conduct in violation of 

Article 3.2. This argument is unavailing and contradicted by the 

record. 

At the revocation hearing, Portell specifically 

represented to the court that he was not contesting "docket entry 

70, the motion filed by the probation officer." Further, Portell's 

arguments at sentencing were implicitly premised on the facts 

alleged in the probation officer's motion, with Portell repeatedly 

acknowledging "the seriousness of his offense" and the 

appropriateness of a sentence at the high-end of the guidelines 

range, representing that this was his first domestic violence 

incident and demonstrating a willingness to attend anger 

management courses. Portell's reliance on these facts in making 

his sentencing arguments precludes him from now disclaiming their 
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validity. Cf. United States v. Parrilla-Tirado, 22 F.3d 368, 373 

(1st Cir. 1994) ("It is the policy of the law to hold litigants to 

their assurances. . . . '[w]e will not permit a defendant to turn 

his back on his own representations to the court merely because it 

would suit his convenience to do so.'") (alteration in original)

(quoting United States v. Pellerito, 878 F.2d 1535, 1539 (1st Cir. 

1989)). 

Furthermore, Portell failed to raise any objection at 

the initial revocation sentencing hearing when both the government 

and the court specifically repeated, and extensively discussed, 

the conduct alleged in the probation officer's motion. When 

Portell did object at that hearing, the objection was limited to 

the court's violation grading methodology and conclusion. 

Accordingly, when we decided Portell's appeal on that issue we 

expressed the same understanding as to the scope of Portell's 

admission as the district court (which Portell now challenges): 

that "[a]t the final revocation hearing, [Portell] did not 

challenge the contents of the operative violation report . . ." 

Portell-Márquez, 2021 WL 5458605 at *1 (emphasis added). 

Portell also failed to raise an objection when the 

district court once again discussed those same facts on remand in 

advance of handing down its new sentence. When Portell finally 

did object to the sentence, and to the court's reliance on the 

conduct alleged in the probation officer's motion, he specifically 
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stated that he "did not contest the allegations for sentencing 

purposes" but nonetheless argued that the court could not rely on 

those uncontested allegations at sentencing. The flaw in this 

argument is that it would require a court to permit Portell to 

admit to the conduct described in the officer's motion and to rely 

on that conduct for the purposes of his own sentencing arguments, 

but preclude the court from similarly considering that conduct in 

crafting its sentence. Portell's challenge is thus without merit 

and contradicted by the record. His admission to the conduct 

alleged in the probation officer's motion provided the requisite 

"indicia of reliability" that the conduct prompting his arrest 

occurred and it was not an abuse of the court's discretion for the 

court to consider that conduct at sentencing.

In addition to the scope of his admission, Portell's 

challenge also focuses on the district court's reference to "the 

state court documents" as demonstrating that the court nonetheless 

improperly premised its sentence on the state-court complaint. 

However, as discussed, the record reveals that the variance was 

not premised on the state-court documents themselves but was 

instead based on the probation officer's motion (which summarized 

the allegations in the state-court documents) and, crucially, 

Portell's admission to the conduct described therein. Indeed, the 

court explained as much when Portell objected on these grounds at 

the second sentencing hearing; the court noted that it considered 
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that Portell punched his partner in the mouth and, when Portell 

claimed that conduct had not been proven, responded that "that's 

what's in the probation officer's motion, which [Portell] did not 

contest." Accordingly, even if we were to agree with Portell and 

conclude that the district court's reference to "the state court 

documents" demonstrates that the court did consider Spanishlanguage documents -- which we do not -- any Jones Act violation 

would be harmless, and we would nonetheless affirm the sentence on 

the basis that the Spanish-language information was merely 

cumulative of the information to which Portell admitted and which 

the district court properly considered in justifying its sentence. 

See Millán-Isaac, 749 F.3d at 64-66 ("[N]ot all Jones Act 

violations require reversal. . . . [I]f the untranslated evidence 

is merely cumulative, any prejudice to the parties caused by this 

court's inability to review untranslated evidence is 

inconsequential and will not require reversal.") (citations 

omitted).

Portell's claims of procedural and substantive error are 

both premised on his arguments that the district court improperly 

relied on the Spanish-language evidence and otherwise lacked a 

sufficient basis on which it could justify the variant sentence. 

Those arguments are, for the reasons discussed above, unavailing. 

Further, we do not find any other error, procedural or substantive, 

with the district court's sentencing methodology or the sentence 
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it imposed. The district court "calculat[ed] the applicable 

Guidelines Sentencing Range ('GSR'), address[ed] any objections to 

the probation department's [motion], g[ave] both parties an 

opportunity to argue for whatever sentence they deem[ed]

appropriate, consider[ed] the 18 U.S.C. § 3553(a) sentencing 

factors, and explain[ed] the reasoning behind the chosen 

sentence." Laureano-Pérez, 797 F.3d at 80 ("A sentence is 

procedurally sound so long as the district court complies with 

th[is] specifically delineated roadmap." (internal quotation marks 

and citation omitted)). And, the court's variant sentence, 

premised on the nature of Portell's violation, "reflects a 

plausible sentencing rationale and a defensible result" and is 

thus substantively reasonable. United States v. Soto-Soto, 855 

F.3d 445, 450 (1st Cir. 2017) (internal quotation marks and 

citation omitted). Affirmed.