United States Court of Appeals

For the First Circuit

No. 08-1830

UNITED STATES,

Appellee,

v.

ERNESTO CIRILO-MUÑOZ,

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF PUERTO RICO

[Hon. Jay A. García-Gregory, U.S. District Judge]

Before

 Torruella, Stahl and Lipez,

Circuit Judges.

Rafael Anglada-López on brief for appellant.

Nelson Pérez-Sosa, Assistant U.S. Attorney, Julia M.

Meconiates, Assistant U.S. Attorney, and Rosa Emilia RodriguezVelez, United States Attorney, on brief for appellee.

September 4, 2009
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Per Curiam. Upon remand from this court, see United

States v. Cirilo-Muñoz, 504 F.3d 106 (1st Cir. 2007), Ernesto

Cirilo-Muñoz was resentenced to the statutory mandatory minimum

sentence of 240 months. Cirilo-Muñoz once again appeals.

He asks, in conclusory fashion, that we declare the

statutory mandatory minimum unconstitutional as applied to him, but

he supplies no supporting argument. He did not present a

constitutionally-based argument below so the claim is waived.

The argument that Cirilo-Muñoz did raise below and which

he reiterates in somewhat fleeting fashion here is unavailing.

Courts have uniformly rejected the claim that § 3553(a)'s "no

greater than necessary" language authorizes a district court to

sentence below the statutory minimum. See United States v. Samas,

561 F.3d 108, 110-111 (2d Cir. 2009), petition for cert. filed,

(U.S. Jun. 22, 2009) (No. 08-11058); United States v. Huskey, 502

F.3d 1196, 1200 (10th Cir. 2007); United States v. Franklin, 499

F.3d 578, 585 (6th Cir. 2007); United States v. Roberson, 474 F.3d

432, 436 (7th Cir. 2007).

There being neither error of law nor abuse of discretion

in the imposition of the statutory mandatory minimum sentence, the

judgment of the district court entered on June 12, 2008 is

affirmed.

- Concurring Opinion Follows -
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TORRUELLA, Circuit Judge (concurring in the judgment).

This case, and its outcome, is a notorious example of oppressive

injustice culminating in an outrageous adjudication. It is a stain

on the robes of American justice. Appellant Cirilo-Muñoz was

convicted of aiding and abetting the murder of an on-duty police

officer. He was convicted even though his co-defendant LugoSánchez, the murderer himself, who initially tried to pin

Cirilo-Muñoz for the murder and was the government's star witness,

"testified unequivocally that Cirilo[-Muñoz] had no advance

knowledge about his plan to murder . . . and did not assist him in

committing the murder in any way." United States v.

Mangual-Corchado, 139 F.3d 34, 50 (1st Cir. 1998) (McAuliffe, J.,

dissenting). We are now called upon to affirm the imposition of a

harsh mandatory minimum sentence, which only compounds the

injustice caused by Cirilo-Muñoz's conviction. Because I have

taken an oath to uphold the law irrespective of my personal views,

I am left without a principled choice in this appeal other than to

concur, and, in the process, register my most vehement disagreement

with the warped outcome of this case.

As I have previously expressed elsewhere, there are many

aspects of this case's long and troubled history that call into

question the fairness of our criminal justice system. See United

States v. Cirilo-Muñoz, 504 F.3d 106 (1st Cir. 2007) (decision of

Torruella, J.); Cirilo-Muñoz v. United States, 404 F.3d 527, 533-37
For a full review of the tortuous procedural history of the 1

Conley saga, a situation not totally irrelevant to the present

case, see United States v. Conley, 186 F.3d 7 (1st Cir. 1999)

"Conley I"), cert. denied, 529 U.S. 1017 (2000); United States v.

Conley, 103 F. Supp. 2d 45 (D. Mass. 2000) ("Conley II"); United

States v. Conley, 249 F.3d 38 (1st Cir. 2001) ("Conley III");

Conley v. United States, 164 F. Supp. 2d 216 (D. Mass. 2001)

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(1st Cir. 2005) (Torruella, J., concurring). Chief among these

defects is a mistake made by our own court eleven years ago when it

found the evidence at trial sufficient to establish that

Cirilo-Muñoz had foreknowledge that his accomplice would kill the

undercover officer. Mangual-Corchado, 139 F.3d at 44-49. The

error of this decision is cogently and thoroughly expressed by

Judge McAuliffe in his dissent. See id. at 49-56.

Were I on the original panel in Mangual-Corchado, I would

have voted to vacate Cirilo-Muñoz's conviction. Were the issue

brought before us again, I would vote to revisit that decision; the

finding that the evidence was sufficient is so "obviously wrong" as

to rise to the level of "manifest injustice" vitiating the law of

the case doctrine. See Ellis v. United States, 313 F.3d 636,

647-48 (1st Cir. 2002); see also Conley v. United States, 323 F.3d

7, 13 (1st Cir. 2003) (en banc) (Boudin, C.J.) ("Law of the case is

not a straight jacket but can be avoided -- at the discretion of

the court that made the invoked ruling -- on several different

bases."); cf. id. at 14 (distinguishing precedent limiting

restrictions on post conviction review where only "intra-federal

proceedings" are involved). But the sufficiency of the evidence 1
("Conley IV").

I note that In re Davis, although distinguishable in material 2

respects, does offer Cirilo-Muñoz a glimmer of hope at achieving

relief from his improper conviction. Davis involves an eighteenyear-old state conviction, in which the petitioner on a subsequent

petition for collateral review claimed mere presence during the

murder of a police officer, supported by new evidence in the nature

of several exculpatory affidavits not presented at trial. In

dissent, Justice Scalia questioned whether any of "the allegedly

new evidence" was in fact new, as it had "already been considered

(and rejected) multiple times." Id. at *2-4 (Scalia, J.,

dissenting).

 Although Cirilo-Muñoz presents no new evidence of actual

innocence here, the fact that the Supreme Court is willing to

revisit a conviction even older than Cirilo-Muñoz's provides some

hope that the Supreme Court (or even our court) would revisit

Cirilo-Muñoz's conviction should he procure new evidence of his

actual innocence. See 28 U.S.C. § 2244(b)(3)(A) (outline grounds

for filing second or successive habeas petition with court of

appeals). In fact, if Justice Scalia's claim is true, then Davis

leaves open just how "new" the evidence has to be to permit a court

to review Cirilo-Muñoz's conviction.

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supporting Cirilo-Muñoz's conviction is not the issue presented in

this appeal, and I see no way, under the present posture of this

case, to reopen his conviction, unless he were to develop grounds

for filing a new collateral challenge. See Calderón v. Thompson,

523 U.S. 538 (1998); see also In re Davis, 2009 WL 2486475 (U.S.

Aug. 17, 2009) (appellant's original petition for writ of habeas

corpus remanded to district court to consider alleged new evidence

of innocence, eighteen years after conviction for murder of a

police officer).2
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In again registering my concern with his conviction, I

can only invoke (and not improve on) the words of Judge Easterbrook:

Nothing we do as judges in criminal cases is

more important than assuring that the innocent

go free. . . . False accusations of crime must

be caught by prosecutor and petit jury; we

cannot reverse a conviction just because the

main witnesses may have been confused or,

worse, [are] liars. Now and again, however, a

case arrives in which something transparently

has gone wrong, and we must act. Every time

we reverse a conviction on account of

insufficient evidence, we avert many

more . . . .

United States v. Martínez de Ortiz, 883 F.2d 515, 524 (7th Cir.

1989) (Easterbrook, J. concurring); rehearing granted; judgment

vacated, 897 F.2d 220 (7th Cir. 1990); superseded by 907 F.2d 629

(7th Cir. 1990) (en banc).

What we are presented in this appeal raises a fresh and

separate injustice. The twenty-year mandatory minimum sentence

imposed on Cirilo-Muñoz is yet another example of the imprecise and

overly harsh application of our restrictive sentencing regime. See

United States v. Poland, 562 F.3d 35, 43 (1st Cir. 2009)

(Torruella, J., concurring) (criticizing the mandatory minimum in

that case, stating "[i]n the real life scenario of sentencing, such

a regime makes little sense because it takes away much of the

discretion from where it should be, those on the front lines of the

criminal justice system"). This regime imposes a mandatory minimum

sentence on Cirilo-Muñoz that is three years longer than that

imposed on Lugo-Sánchez, the one who actually orchestrated and
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committed the murder. Cf. Cirilo-Muñoz, 504 F.3d at 126

(Torruella, J.) (remanding for resentencing, in part, because

"[e]ven in our legal system, the cases that are reported do not

support the disparity extant in this case between Cirilo-Muñoz, a

minor aider and abettor, and Lugo[-Sánchez], the principal and

murderer").

The district court's comments at sentencing encapsulate

the absurdity of this case:

The Court has reviewed the record in this case

and finds that this defendant, in this case,

especially concerning the evidence that was

presented at trial, had a mitigating [sic]

role. Defendant had lack -- according to the

evidence, and for sentencing purposes, had

lack of prior knowledge of Mr. Lugo[-

Sánchez]'s plans and intentions to kill the

undercover police officer. In fact, the

defendant turned down two of Mr. Lugo[-

Sánchez]'s invitation's to injure the victim

in this case. Moreover, defendant was nowhere

in the vicinity when Mr. Lugo[-Sánchez] killed

the victim. Lastly, Mr. Lugo[-Sánchez]

testified that he did not know the defendant

had followed him and that he did not ask him

to do so.

The district court made these findings on a preponderance of the

evidence standard, which only underscores that the evidence was

insufficient to convict Cirilo-Muñoz in the first place. But, the

district court was further straight-jacketed by the mandate of

Congress into imposing the statutory minimum of twenty years

imprisonment. And we are similarly straight-jacketed into

affirming that sentence.
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A series of coincidences have laid bare a system of law,

which in Cirilo-Muñoz's particular circumstances has failed to

protect him from the oppressive power of government and its

bureaucracy. The result is that a seventeen-year-old adolescent

has been condemned to spending his entire adult life incarcerated

in a federal prison. To this wrongful outcome have contributed all

three branches of government, with Congress making its contribution

on this appeal through its draconian mandatory minimums.

Our prior decisions and the laws passed by Congress

command this result, which I must obey. I write this opinion so

that this injustice is not forgotten in our otherwise summary

disposal of Cirilo-Muñoz's appeal. His case calls out for clemency

and relief, and should serve to remind us both of the flaws in our

system of adjudicating guilt and the dangers of mandatory minimums.

I thus concur in the judgment.