United States Court of Appeals 

For the First Circuit 

No. 15-2523 

UNITED STATES OF AMERICA, 

Appellee, 

v. 

LUTGARDO ACEVEDO-LÓPEZ, 

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 

Torruella, Lipez, and Barron, 

 Circuit Judges. 

Martin G. Weinberg, with whom Kimberly Homan, were on brief, 

for appellant. 

Juan Carlos Reyes-Ramos, Assistant United States Attorney, 

with whom Rosa Emilia Rodríguez-Vélez, United States Attorney, and 

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

Appellate Division, were on brief, for appellee. 

October 11, 2017 
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TORRUELLA, Circuit Judge. Defendant-Appellant Lutgardo 

Acevedo-López ("Acevedo") pled guilty to violating 18 U.S.C. 

§§ 371 and 666(a) by conspiring to bribe and paying a bribe to a 

judge on the Puerto Rico Court of First Instance. Acevedo appeals 

his sentence of nine years' imprisonment. We affirm. 

I. BACKGROUND 

A. Factual Background 

Prosecutors in the Aguadilla judicial region of 

Puerto Rico charged Acevedo with aggravated negligent homicide, 

obstruction of justice, and driving under the influence of 

alcoholic beverages after he killed another driver in a car 

accident on June 30, 2012. In November 2012, Ángel Román-Badillo 

("Lito") -- a long-time acquaintance of Acevedo -- met with Manuel 

Acevedo-Hernández (the "Judge"), a Puerto Rico Superior Court 

Judge in the Aguadilla judicial region, and the Judge's brother, 

Saúl Acevedo-Hernández ("Saúl"), and nephew, Miguel Acevedo-Manjo 

("Miguel") at a restaurant.1 They discussed Acevedo's case, and 

Lito told the Judge that Acevedo's case would be assigned to him. 

The Judge told Lito that, if he was assigned the case, he would 

let Lito know. 

 

1 Because a number of people mentioned in this opinion have the 

last name "Acevedo," we refer to them by either their first name 

or a nickname used in the record. We mean no disrespect in doing 

so. 
-3- 

In subsequent meetings, the Judge informed Lito that the 

case had been officially assigned to him. The Judge commented 

that Acevedo's criminal case was so delicate that it "could not be 

worked on, not even for $100,000," but the Judge also stated that 

he wanted a seat on the state appellate court and government jobs 

for Saúl and Miguel. 

The Judge eventually agreed to provide Acevedo with 

favorable treatment. From November 2012 to April 2013, Lito would 

invite the Judge, Saúl, Miguel, and other friends to bars and 

restaurants, and Acevedo would pay for everything. Through Lito, 

Acevedo also: (1) paid the Judge's pending state income tax debt; 

(2) bought the Judge gifts; (3) arranged for construction 

improvements on the Judge's garage; and (4) purchased a used 

motorcycle for the Judge. 

Acevedo also worked to procure a seat on the state 

appellate court for the Judge. In December 2012, Acevedo arranged 

a meeting at a golf tournament between the Judge and Anaudi 

Hernández ("Hernández"), a businessman with connections to the 

then-Governor-elect who had previously helped another judge get 

reappointed. On December 30, 2012, Lito drove the Judge to the 

golf tournament. At the tournament, Lutgardo Acevedo-López II 

("Bebé"), Acevedo's brother, told Hernández that he wanted to 

introduce Hernández to a friend who aspired to be an appellate 
-4- 

judge. The Judge became nervous because he was presiding over 

Acevedo's case, however, and he did not meet Hernández at the 

tournament. A few weeks later, however, on January 21, 2013, Lito 

drove the Judge to Hernández's residence to discuss the Judge's 

potential appointment to the appellate court. During the meeting, 

the Judge told Acevedo that his dream was to retire as an appellate 

judge. 

In return for these inducements, the Judge provided help 

with Acevedo's case. Between January and March 2013, Acevedo 

provided the Judge with draft court filings for his review and 

advice prior to filing. Further, on March 22, 2013, the Judge met 

with Lito to discuss Acevedo's case and provide strategic legal 

advice. On March 27, 2013, the Judge acquitted Acevedo of all 

charges. 

On April 5, 2013, Lito drove the Judge to a seminar. 

Later that day, Puerto Rico police officers stopped Lito, still 

with the Judge, for suspected driving while under the influence of 

alcohol. The Judge intervened on Lito's behalf, but some of the 

officers had been involved in the case against Acevedo, and they 

identified Lito as Acevedo's associate and raised concerns about 

the Judge's association with Lito. This eventually led to a 

federal investigation. 
-5- 

B. Procedural History 

On June 3, 2014, federal officers arrested Acevedo in 

the Southern District of Florida. On June 6, 2014, a magistrate 

judge in the Southern District of Florida ordered that Acevedo be 

detained and removed to the District of Puerto Rico. On July 14, 

2014, the district court for the district of Puerto Rico conducted 

a de novo detention hearing and reinstated the Florida magistrate's 

detention order. 

On August 14, 2014, Acevedo entered into a plea 

agreement. The parties stipulated to a total offense level of 

twenty-three, but Acevedo's presentence investigation report (the 

"PSR") initially recommended a total offense level of twenty-nine. 

Acevedo filed several objections to the PSR. In response to those 

objections, the probation officer issued an addendum to the PSR on 

November 3, 2015. The addendum included a revised calculation of 

the benefits received by the Judge under U.S.S.G. § 2C1.1(b)(2), 

which reduced the recommended total offense level from twenty-nine 

to twenty-seven. 

The district court held a sentencing hearing on 

November 6, 2015. Among other things, the district court found 

that the annual salary increase that the Judge would have received 

if he had been appointed as an appellate judge, totaling $123,200 

over eight years, was to be included in calculating the value of 
-6- 

the bribe under U.S.S.G. § 2C1.1(b)(2). The district court also 

found that the conspiracy involved at least five criminallyresponsible participants and was also otherwise-extensive under 

U.S.S.G. § 3B1.1(a). Altogether, the district court calculated a 

total offense level of twenty-seven and a recommended sentencing 

range of seventy to eighty-seven months of imprisonment. After 

reviewing the 18 U.S.C. § 3553(a) factors, however, the district 

court determined that "the circumstances surrounding this offense 

fall completely out of the heartland of the Sentencing Guidelines," 

and so "a variance [was] warranted." Considering "the seriousness 

of the offense and all of the factors," the district court 

therefore sentenced Acevedo to 108 months of imprisonment, one 

year less than the statutory maximum. 

Acevedo appealed his sentence. 

II. ANALYSIS 

Acevedo raises a plethora of purported procedural 

sentencing errors made by the district court. We address them 

each in turn. 

We review the district court's legal interpretation and 

application of the Sentencing Guidelines de novo, its findings of 

fact -- including calculations of value -- for clear error, and 

its judgment calls for abuse of discretion. United States v. 
-7- 

Houston, 857 F.3d 427, 432 (1st Cir. 2017); see also United States 

v. Vázquez-Botet, 532 F.3d 37, 65 (1st Cir. 2008). 

A. The District Court Did Not Err in Calculating the Value of 

the Benefit to the Judge 

Acevedo's first claim of error is that the district court 

miscalculated the value of "anything obtained or to be obtained" 

by the Judge under U.S.S.G. § 2C1.1(b)(2). U.S.S.G. § 2C1.1(b)(2)2

provides: 

If the value of the payment, the benefit received or 

to be received in return for the payment, the value 

of anything obtained or to be obtained by a public 

official or others acting with a public official, or 

the loss to the government from the offense, whichever 

is greatest, exceeded $5,000, increase by the number 

of levels from the table in § 2B1.1 (Theft, Property 

Destruction, and Fraud) corresponding to that amount. 

Acevedo's plea agreement calculated the "Value of the Payment" as 

more than $30,000 but less than $95,000, which corresponded to a 

six-level increase.3

But the district court conducted its own calculation. 

Because it could not determine the monetary value to Acevedo of an 

 

2 Acevedo's PSR and the district court quoted the November 1, 

2013 edition of the United States Sentencing Guidelines Manual in 

this instance. We do so as well. 

3 As the plea agreement indicates only a six-level increase in 

light of U.S.S.G § 2C1.1(b)(2), the plea agreement presumably 

contemplated that the "value of the payment" did not exceed 

$70,000. See U.S.S.G § 2C1.1(b)(2) (referencing the table at 

§ 2B1.1). 
-8- 

acquittal, or the loss to the government, the district court 

calculated the value of what was "to be obtained by [the Judge]" 

-- which it found was an appellate judgeship -- pursuant to his 

agreement to provide Acevedo favorable treatment. It determined 

that the Judge would have received an extra $15,400 per year in 

annual salary if he had been appointed to the appellate court, and 

that he would have received that additional salary from 2013 -- 

the year the Judge acquitted Acevedo -- until 2021, when the Judge 

would reach the mandatory retirement age of seventy. This 

increased salary over a period of eight years resulted in a 

calculated expected benefit of $123,200, resulting in an eightlevel increase in Acevedo's total offense level.

Acevedo first attacks the district court's finding by 

arguing that, although the Judge may have expected an appellate 

judgeship, that expectation was not reasonable. The district 

court found otherwise, and we see no clear error. The appellate 

judgeship was a centerpiece of the bribe -- the Judge stated that 

he would not otherwise participate in the conspiracy, "not even 

for $100,000." In addition, all parties took steps to facilitate 

the Judge's appointment. Acevedo coordinated two meetings between 

the Judge and Hernández, a key fundraiser for the then governorelect. The Judge took steps to attend the first meeting, at a 

golf tournament, and he subsequently met Hernández at Hernández's 
-9- 

home. It is true that there is no evidence that the Judge applied 

for an appellate judgeship, but there is substantial 

circumstantial evidence of the Judge's expectations. The district 

court therefore did not clearly err in finding that the Judge 

reasonably expected that Acevedo would procure an appellate 

judgeship for him. 

Acevedo also argues that all the Judge could have 

reasonably expected to obtain was assistance in acquiring an 

appellate judgeship, not the judgeship itself. He therefore 

reasons that the Government was required to prove the value of the 

assistance, which was necessarily less than the full value of the 

appellate judgeship, and that it did not do so. For support, 

Acevedo cites United States v. Fitzhugh, 78 F.3d 1326 (8th Cir. 

1996) and United States v. White Eagle, 721 F.3d 1108 (9th Cir. 

2013), in which those circuits held that, where a loan is obtained 

by a bribe, "its value will typically be the difference between 

the actual cost of the loan, and the cost of the same loan at fair 

market terms and conditions." White Eagle, 721 F.3d at 1122 

(quoting Fitzhugh, 78 F.3d at 1331). Those cases are inapplicable. 

A loan requires repayment, and so its face value is not a good 

indicator of the benefit conferred. Acevedo's offer to get the 

Judge appointed to an appellate judgeship did not have this type 

of offset. As stated above, the Judge reasonably believed that 
-10- 

Acevedo could get him appointed. Thus, the record supports the 

conclusion that what the Judge intended to obtain was an appellate 

judgeship. While the defendant argues he merely offered 

"assistance," that argument does not suffice to show that the 

district court erred in concluding that the Judge intended to 

obtain something more. 

The district court therefore did not err in applying an 

eight-level increase to Acevedo's offense level.

B. The District Court Did Not Err By Finding That the Criminal 

Activity Involved Five or More Participants 

The district court also increased Acevedo's total 

offense level by four levels because it found he "was an organizer 

or leader of a criminal activity that involved five or more 

participants or was otherwise extensive." U.S.S.G. § 3B1.1(a). 

We review the district court's determination that an individual 

was a participant for clear error. See United States v. George, 

841 F.3d 55, 66, 69-70 (1st Cir. 2016). 

A participant is "a person who is criminally responsible 

for the commission of the offense, but need not have been 

convicted." U.S.S.G. § 3B1.1 cmt. n.1. To be considered a 

participant, it is only necessary that an individual gives knowing 

aid in some aspect of the criminal activity. George, 841 F.3d at 

70 (citing United States v. Starks, 815 F.3d 438, 441 (8th Cir. 

2016)); United States v. McCormick, 773 F.3d 357, 360 (1st Cir. 
-11- 

2014). Similarly, an individual can be considered a participant 

when his or her acts "give rise to an inference of complicity 

sufficient to ground a finding that [the individual] was a 

participant in the criminal activities." George, 841 F.3d at 70. 

Acevedo concedes that he and three others were 

criminally responsible participants, but he contends that the 

district court erred in finding that Bebé, Saúl, Miguel, and 

Hernández were also criminal participants. We find that there is 

sufficient evidence to establish that Saúl was a participant, and 

thus need not address whether any of the others were participants. 

Other circuits have affirmed a finding that an 

individual was a criminal participant under circumstances similar 

to Saúl's. In United States v. Saulter, an individual called 

"Judo" played a small role in a larger drug transaction by helping 

a criminal informant locate the defendant to conduct the 

transaction. 60 F.3d 270, 280-81 (7th Cir. 1995). There was also 

disputed evidence, credited by the district court, that Judo handed 

the informant cocaine. Id. at 281. The Seventh Circuit held that 

"Judo's assistance in locating [the defendant] to perform an act 

in furtherance of the conspiracy" combined with handling cocaine 

established Judo as a criminally responsible participant for the 

purposes of § 3B1.1(a). Id. 
-12- 

In a second case, the defendant paid false invoices to 

a car dealer who leased cars to the New York City Transit Police 

Benevolent Association (the "TPBA"), which enabled "selected TPBA 

members . . . to buy cars at discounted prices from the auto dealer 

as a direct result of [the defendant's] larceny from the TPBA." 

United States v. Zichettello, 208 F.3d 72, 108 (2d Cir. 2000). 

The defendant argued that none of the TPBA members were criminal 

participants. Id. at 108. The Second Circuit ruled that "the 

district court had an evidentiary basis to conclude that at least 

one of these individuals was criminally involved in [the 

defendant's] scheme." Id. It reasoned that the TPBA Recording 

Secretary, who purchased a car from the dealership at an 80% 

discount, "had to have known from the size of the discount that 

some illegitimate quid pro quo involving the TPBA Treasurer was 

the catalyst for the transaction." Id. That knowledge, and the 

benefits the TPBA Recording Secretary received, were sufficient 

under the clear error standard "to render the TPBA Recording 

Secretary a participant and to justify the enhancement." Id. 

Acevedo acknowledges that Saúl set up the initial 

meeting between Lito and the Judge. Saúl then attended meetings 

for nearly six months where Lito would pay for outings at 

restaurants and bars with money provided by Acevedo. The Judge 

requested that Acevedo secure employment at the Treasury 
-13- 

Department for Saúl, and Saúl gave the Judge his résumé, which the 

Judge passed on to Lito. When Acevedo was slow in obtaining the 

position for Saúl, Saúl confronted Acevedo at Acevedo's office, 

where Acevedo requested more time. While Saúl waited on his job, 

Lito employed him, and Saúl "was given money to repair his vehicle 

and cash whenever [he] needed." 

Given these facts, the district court did not clearly 

err by finding that Saúl facilitated, knew of, and benefitted from 

the criminal activity. Saúl initiated conversations between Lito 

and the Judge, thus providing "assistance in locating [a coconspirator] to perform an act in furtherance of the conspiracy". 

Saulter, 60 F.3d at 281. While Acevedo declares that Saúl did not 

know of the conspiracy and that he was not present when discussions 

were held, his actions, including confronting Acevedo about 

obtaining a government job, show that Saúl "had to have known . . . 

that some illegitimate quid pro quo involving [the defendant] was 

the catalyst" for the benefits he received or was promised. See 

Zichettello, 208 F.3d at 108. And, as previously described, Saúl 

was promised a job, given money, and enjoyed outings paid for with 

money provided by Acevedo as part of the criminal activity. These 

facts provide sufficient evidence that Saúl was a criminally 

responsible participant under U.S.S.G. § 3B1.1(a). 
-14- 

Because adding Saúl makes five participants, we need not 

examine the other three individuals the district court identified, 

nor do we need to reach the district court's alternative holding 

that the criminal activity was "otherwise extensive." 

C. The District Court Followed the Preferred Methodology When It 

Determined Acevedo's Sentence 

Acevedo contends that his sentence was procedurally 

unreasonable because the district court "reversed the required 

sequence" of analytical steps when it determined his sentence. 

Claims of procedural unreasonableness in sentencing are typically 

reviewed for abuse of discretion. United States v. DávilaGonzález, 595 F.3d 42, 47 (1st Cir. 2010). 

We reaffirmed the recommended method for determining a 

sentence in Dávila-González: 

[A] sentencing court ordinarily should begin by 

calculating the applicable guideline sentencing 

range; then determine whether or not any departures 

are in order; then mull the factors delineated in 18 

U.S.C. § 3553(a) as well as any other relevant 

considerations; and, finally, determine what 

sentence, whether within, above, or below the 

guideline sentencing range, appears appropriate. 

Id. at 46 (quoting United States v. Pelletier, 469 F.3d 194, 203 

(1st Cir. 2006)). 

Acevedo protests that the district court did not follow 

this method, but instead began by determining that the maximum 

sentence was necessary. To support his argument, Acevedo points 
-15- 

to a single statement by the district court at the sentencing 

hearing: 

Every single time that I looked at this case, every 

time I evaluated the evidence I was convinced that 

one, the guidelines would not be representative and 

no other sentence than the maximum sentence was 

warranted in your case. The maximum sentence in your 

case is that of ten years. But actually I am aware 

that I have to consider some other factors . . . . 

Acevedo disregards all of the deliberation that preceded 

this excerpt, however. In fact, the district court first 

calculated Acevedo's recommended sentencing range. It then 

considered possible grounds for departure, and weighed relevant 

§ 3553(a) factors. As part of its § 3553(a) conduct, the district 

court considered some of Acevedo's previous conduct, relevant to, 

for example, his "history and characteristics." See 18 U.S.C. 

§ 3553(a). Finally, it imposed its sentence, during which it made 

the statement plucked out by Acevedo. That is the recommended 

procedure, and so the district court's methodology was not 

erroneous. 

D. The District Court Did Not Abuse Its Discretion By Considering 

Evidence of Acevedo's Prior Acts 

Acevedo contends that the district court used unreliable 

evidence to vary his sentence. In particular, he challenges the 

court's findings regarding an incident at the Mesa Criolla 

Restaurant (the "Mesa Criolla Incident"), including the district 

court's consideration of a letter sent by an off-duty police 
-16- 

officer who was present at the incident,4 and a second incident in 

which Acevedo threatened his cousin, Rafael Lorenzo-López 

("Rafi"). We "examin[e] the district court's findings of fact for 

clear error."5 United States v. Carpenter, 781 F.3d 599, 608 (1st 

Cir. 2015). 

1. The Mesa Criolla Incident 

Paragraph 129 of the PSR described the Mesa Criolla 

Incident: 

According to the investigative agents, in the event 

known as the Mesa Criolla Incident, on August 23, 

2010, at 1:17 am at [M]esa Criolla Restaurant in Moca, 

PR, video documentation displays the defendant 

brandishing a firearm to Orlando Soto, owner of the 

restaurant, and Steven P[é]rez-H[é]rnandez, employee, 

after a verbal altercation. A day after the incident, 

Orlando Soto alleged that two individuals, Eliezer 

Vega Mercado and Elliot Medina Pellot, entered his 

business and assaulted him on behalf of the defendant. 

At Acevedo's pretrial detention hearing, the Assistant 

United States Attorney (the "AUSA") proffered evidence about the 

 

4 Although the district court discussed the letter, it also stated 

that, even without the letter, "the full record of the evidence at 

trial depicting [Acevedo's] character . . . shows [the] same 

characteristics and pattern of conduct." Thus, the district court 

made clear that it would have reached the same sentence without 

the letter. Any error in admitting the letter would therefore be 

harmless, so we do not delve into the letter's reliability. See 

Fed. R. Crim. P. 52(a). 

5 The Government argues that plain error review applies because 

Acevedo did not argue below that the evidence was unreliable. 

Because the result would be the same under either clear error or 

plain error review, we do not address this contention. 
-17- 

Mesa Criolla Incident. The proffer included that Acevedo got into 

a fight with an off-duty police officer at the Mesa Criolla 

Restaurant. After the officer left, the restaurant's owner asked 

Acevedo to leave. Acevedo then brandished a gun and threatened 

to kill the owner and an employee. An employee disarmed Acevedo, 

but Acevedo later returned and demanded the restaurant's 

surveillance footage. When the owner refused, Acevedo threatened 

him and left. Three men then came to the restaurant, asked the 

owner "whether he was the one that had the problem with [Acevedo]," 

then beat the owner. The proffer was supported by photographs of 

the owner's face and videotape of the beating. 

Two men pled guilty to assault related to this incident. 

In addition, Acevedo was charged in connection with the Mesa 

Criolla Incident, but all charges were dismissed. 

2. The Altercation with Rafi 

Paragraph 130 of the PSR stated that Acevedo "was 

involved in an altercation with [his cousin Rafi], in which 

[Acevedo] brandished a firearm. Subsequently, [Acevedo] made life 

threats via text messages against his cousin, who ultimately 

abandoned the jurisdiction for fear of death."

Rafi also testified about this incident at the Judge's 

trial. Relying on Rafi's testimony, the district court found that 

Acevedo "pulled a gun and pointed it at [Rafi] while threatening 
-18- 

to kill him." Rafi subsequently filed a complaint with the state 

police, and Acevedo's relative, a police lieutenant, tried to 

convince Rafi not to pursue the complaint. That night, Acevedo 

"began to send threatening [text] messages" to Rafi, including 

threatening to take Rafi's son. Eventually, Acevedo purchased a 

plane ticket for Rafi to leave Puerto Rico, and the complaint was 

dismissed because Rafi was not present to press charges. 

3. The Reliability of the Evidence 

The district court relied on these two incidents as 

evidence of Acevedo's history of violence, threats, and efforts to 

silence witnesses. Acevedo argues that the "negative conclusions 

[the district court] drew" from these incidents were erroneous 

because the evidence for these incidents was unreliable. The 

evidence for the Mesa Criolla Incident "rested largely on out-ofcourt statements never subject to adversarial testing." 

Similarly, evidence from the detention hearing concerning 

Acevedo's altercation with Rafi was "not subject to adversarial 

testing," and Rafi's testimony at the Judge's trial about the 

incident was unreliable because Rafi was cross-examined "with the 

express purpose of casting Acevedo in the worst light possible." 

As an initial matter, Acevedo did not object to the 

summaries of these two incidents in the PSR, so the district court 

could treat those facts "as true for sentencing purposes." United 
-19- 

States v. Ocasio-Cancel, 727 F.3d 85, 91-92 (1st Cir. 2013) 

(upholding a district court's findings where "the defendant did 

not object to any aspect of the PSI Report's discussion of local 

charges against him that were ultimately dismissed"). The 

district court did, however, find additional facts related to those 

incidents, so we will address Acevedo's arguments. 

Much of the evidence presented at Acevedo's sentencing 

hearing was the hearsay proffer of the AUSA. "[T]he sentencing 

court has broad discretion to accept hearsay evidence at sentencing 

so long as the court supportably concludes that the information 

has sufficient indicia of trustworthiness to warrant a finding of 

probable accuracy." United States v. Rodríguez, 336 F.3d 67, 71 

(1st Cir. 2003). Indicia of trustworthiness can include 

corroboration by other evidence. United States v. Ramírez-Negrón, 

751 F.3d 42, 52 (1st Cir. 2014) ("[T]he hearsay testimony was 

corroborated by . . . [the agent's] personal knowledge and 

observation of the videos."); United States v. Mara, 523 F.3d 1036, 

1039 (9th Cir. 2008) ("[T]he statements contained in the [police] 

report were sufficiently corroborated so as to provide the 

requisite indicia of reliability."). We have similarly allowed 

reliance on an AUSA's proffer that, "though uncorroborated, was 

thorough and replete with details." Rodríguez, 336 F.3d at 71. 
-20- 

Here, corroborating evidence presented at the detention 

hearing concerning the two incidents included text messages, live 

testimony, photographs, video, and court records. It is true that 

much of the evidence was not subject to cross-examination, but 

"the sentencing court may rely upon 'virtually any dependable 

information,' including statements which have not been subjected 

to the crucible of cross-examination." United States v. Doe, 741 

F.3d 217, 236 (1st Cir. 2013) (quoting United States v. CintrónEchautegui, 604 F.3d 1, 6 (1st Cir. 2010)). "Even conduct that 

did not lead to a conviction may be considered." United States 

v. Hinkley, 803 F.3d 85, 92-93 (1st Cir. 2015). 

Acevedo's contention that the district court erred by 

relying on Rafi's testimony from the Judge's trial fails for the 

same reason. Although Rafi's testimony may not have been subject 

to the type of cross-examination that Acevedo would have preferred, 

that is not fatal in and of itself. See Doe, 741 F.3d at 236. In 

addition, Rafi's testimony about his altercation with Acevedo was 

consistent with the AUSA's proffer at the detention hearing, and 

so corroborated by the same evidence. Finally, "the sentencing 

judge was also the presiding judge during [all of] the prior 

proceedings. Thus, the sentencing judge had the opportunity to 

observe the testimony and cross-examination of the various 

witnesses and could thereby make an independent assessment as to 
-21- 

their credibility." United States v. Zuleta-Álvarez, 922 F.2d 33, 

37 (1st Cir. 1990). 

The district court therefore did not clearly err in 

finding that Acevedo was involved in these two incidents and that 

they supported an upwardly variant sentence. 

E. The District Court Was Not Required to Inform Acevedo That It 

Intended to Rely on Evidence from Acevedo's Detention Hearing 

and Public Corruption Statistics 

A sentencing court "must allow the parties' attorneys to 

comment on the probation officer's determinations and other 

matters relating to an appropriate sentence." Fed. R. Crim. P. 

32(i)(1)(C). "[A] defendant's right to respond to the information 

offered against him at sentencing means very little without a right 

to notice of that information." United States v. Millán-Isaac, 

749 F.3d 57, 70 (1st Cir. 2014); see also United States v. Berzon, 

941 F.2d 8, 18 (1st Cir. 1991) ("Th[e] right to be heard has little 

reality or worth unless one is informed." (quoting Burns v. United 

States, 501 U.S. 129, 136 (1991))). 

Citing Millán-Isaac and Berzon, Acevedo first contends 

that the district court was required to give him notice, before 

his sentencing hearing, that it intended to rely on evidence 

presented at Acevedo's detention hearing, particularly with 

regards to the Mesa Criolla Incident. In Millán-Isaac, we held 

that it was plain error for the district court to consider either 
-22- 

victim-impact information presented by the government for the 

first time at the defendant's hearing or additional facts about 

the defendant presented at a co-defendant's separate sentencing 

hearing. 749 F.3d at 73. Similarly, in Berzon, we rejected the 

government's argument that the defendant had "constructive notice" 

that the district court might consider testimony from a codefendant's prior sentencing hearing. 941 F.2d at 17-21. 

Acevedo's argument, however, hinges on his assertion 

that he had no notice that the district court might rely on 

information from the detention hearing. A sentencing court has a 

"wide scope" of discretion to consider evidence, including 

testimony from outside the sentencing hearing if it "timely 

advise[s the defendant] in advance of sentencing that it heard or 

read, and was taking into account, that testimony." Id. at 21. 

Here, the PSR included a summary of the Mesa Criolla Incident, and 

it specifically referenced evidence from Acevedo's detention 

hearing when discussing his altercation with Rafi. In Berzon, we 

"agree[d] entirely" with two cases from other circuits that allowed 

sentencing courts to consider evidence presented in related trials 

because those defendants' pre-sentence reports contained those 

same facts, thus putting the defendants on notice that those facts 

might be used. 941 F.2d at 19 (citing United States v. Notrangelo, 

909 F.2d 363 (9th Cir. 1990) and United States v. Romano, 825 F.2d 
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725 (2d Cir. 1987)). In addition, the detention hearing was part 

of the record. Thus, although the PSR did not contain all of the 

specific facts discussed by the district court, its summary of the 

two incidents, its mention of the detention hearing, and the fact 

that the detention hearing was part of the record gave Acevedo all 

the notice he needed that the district court might rely on evidence 

presented at his detention hearing. 

Acevedo also argues that the district court did not give 

him prior notice of its intent to rely on public corruption 

statistics. Our holding in United States v. Curran governs 

sentencing courts' use of documents to which Federal Rule of 

Criminal Procedure 32 does not apply -- that is, documents outside 

of the PSR. 926 F.2d 59, 63 (1st Cir. 1991). There, we held that 

sentencing courts considering documents of that sort "should 

either make clear that the document is not being used for its 

factual content, or should disclose to the defendant as much as 

was relied upon, in a timely manner, so as to afford the defendant 

a fair opportunity to examine and challenge it." Id. at 63. Here, 

the district court did neither. 

However, Acevedo has not shown that any harm or prejudice 

resulted from the court's use without notice of these statistics 

at sentencing. Nor has he otherwise suggested that the statistics 

are in any way problematic. He does argue that the statistics 
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"pertain to public corruption in general," rather than judicial 

corruption specifically. Yet, this argument is meritless, as his 

offenses of conviction are not specific to judicial corruption, 

and he fails to explain why considerations of public corruption 

generally are inapplicable. Therefore, while the district court 

should have provided notice to Acevedo that it intended to use the 

statistics in question, its failure to do so amounts only to 

harmless error. See United States v. Warr, 530 F.3d 1152 (9th 

Cir. 2008) (finding harmless error when the district court relied 

on a recidivism study without providing prior notice to the 

defendant, but only cited that study for the "common sense 

proposition that younger offenders are likely to recidivate"). 

F. The District Court Imposed a Variance, Not a Departure 

Acevedo's final claims of error rest on his contention 

that the district court imposed a "departure in the guise of a 

variance." Building on this assertion, he argues that the 

district court (1) relied on improper grounds for imposing the 

departure, and (2) did not allow his counsel an adequate 

opportunity to argue why those grounds were improper. We can cut 

these arguments off at the root. Although the district court did 

discuss a departure under U.S.S.G. § 5K2.7, it specifically stated 

that it "did not apply the departure" but instead found that "a 

variance [was] applicable." In doing so it considered numerous 
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factors under 18 U.S.C. § 3553(a), "the hallmark of a variance." 

United States v. Santini-Santiago, 846 F.3d 487, 491 (1st Cir. 

2017). Some of the factors it considered might also relate to a 

departure, but a sentencing court may "echo" a departure 

consideration as one factor in its analysis, while still imposing 

a variance. United States v. Aponte-Vellón, 754 F.3d 89, 93 (1st 

Cir. 2014). 

For the same reason, Acevedo's assertion that he was not 

allowed a proper opportunity to object to the imposition of a 

departure, even if it had merit, would not require reversal. The 

district court imposed a variance, not a departure, and so any 

error would be harmless. See Fed. R. Crim. P. 52(a). 

III. CONCLUSION 

Considering the serious and corrosive nature of 

Acevedo's crimes, it would have been more than appropriate for the 

district court to have imposed an even higher sentence. For the 

reasons stated, we affirm Acevedo's sentence. 

Affirmed.