United States Court of Appeals 

For the First Circuit 

No. 17-1543 

UNITED STATES, 

Appellee, 

v. 

JORGE BERRIOS-MIRANDA, a/k/a Yoyo, 

Defendant, Appellant. 

APPEAL FROM THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF PUERTO RICO 

[Hon. Carmen Consuelo Cerezo, U.S. District Judge] 

Before 

Lynch, Thompson, and Barron, 

Circuit Judges. 

Raymond L. Sanchez Maceira on brief for appellant. 

Rosa Emilia Rodríguez-Vélez, United States Attorney, Mariana 

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

Appellate Division, and Mainon A. Schwartz, Assistant United 

States Attorney, U.S. Attorney's Office, on brief for appellee. 

March 22, 2019 
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THOMPSON, Circuit Judge. Today we turn to the final 

chapter of Jorge Berrios-Miranda's ("Berrios") sentencing 

challenge, in which he contends that the district court violated 

his procedural due process rights when it denied his request to 

challenge the reliability of his victim's testimony by crossexamining the victim at Berrios's resentencing hearing. Spying no 

error in the district court's handling of the matter, we affirm. 

Background1

We provide the following pertinent details to flesh out 

the backdrop for this appeal. 

 Berrios was one of several men who kidnapped and held 

hostage Luis F. Bello-Javier ("the victim") in August 2008. Over 

the course of the several days they held the victim against his 

will, the kidnappers regularly beat him and deprived him of food. 

After the FBI got involved, though, the kidnappers released the 

victim and were apprehended. Pursuant to a plea agreement, Berrios 

pleaded guilty to kidnapping for ransom in violation of 18 U.S.C. 

§§ 1201(a)(1) and (2). 

 1 We draw the facts from the record before us on appeal, in 

particular the uncontested portions of the pre-sentence report 

("PSR"), both in its original and amended form, the criminal 

complaint to which Berrios pleaded guilty, and the transcript of 

the resentencing hearing. See United States v. Lee, 892 F.3d 488, 

490 n.1 (1st Cir. 2018) (citing United States v. Santiago-Serrando, 

598 Fed. Appx. 17, 18 (1st Cir. 2015)); United States v. Talladino, 

38 F.3d 1255, 1258 (1st Cir. 1994) (citations omitted). 
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One of Berrios's codefendants proceeded to a trial, 

during which Berrios's conduct during the kidnapping was described 

not only by the victim, but also by Berrios himself. The victim 

detailed how Berrios inflicted serious physical and psychological 

injuries on him during the abduction and "mistreated [him] the 

most." For his part, Berrios testified that he beat and threatened 

to kill the victim, and also placed his gun against the victim's 

head to intimidate him. Berrios also laid out how "constantly 

with the crowbar of the car [he] continued to torture" the victim, 

explaining that, "[t]he majority of the time, the one who was with 

[the victim] was me, Jorge Berrios." 

This brings us to Berrios's sentencing proceedings 

(which postdate the codefendant's trial), in advance of which 

Berrios filed a motion requesting a copy of the as-yet-unseen-byBerrios transcripts of testimony from his codefendant's trial. 

The district-court judge denied the motion, but relied upon the 

victim's and Berrios's trial testimony in rejecting the parties' 

recommended sentence, instead imposing a harsher sentence due to 

the fact that Berrios, according to the victim, had "mistreated 

[him] the most." 

That led to Berrios's first sentencing challenge before 

this court, and we agreed with his position: "the record that was 

available to [Berrios] did not otherwise contain the information 

used by the district court in imposing the sentence," and the fact 
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that the victim testified that Berrios mistreated him more than 

anyone else was "both new and significant under our case law," so 

we held that the reliance below on the victim's testimony could 

not "be deemed harmless." See United States v. Berrios-Miranda, 

No. 13-1808 (1st Cir. June 19, 2015) (judgment). 

Back in district court for the resentencing hearing, 

things didn't play out to Berrios's liking. After the districtcourt judge granted Berrios access to the transcripts "relevant to 

the mistreatment of the victim by [Berrios]" (the testimony given 

by the victim and by Berrios), Berrios moved to compel the 

government to produce the victim "to be cross examined by [him] 

during [re]sentencing, to contest [the victim]'s statement that 

Berrios was: 'the one who mistreated [the victim] the most.'" To 

hear Berrios tell it, the victim's statement, which was not 

previously subject to cross-examination at trial at all by Berrios, 

was "questionable." The district-court judge ordered Berrios to 

"explain how further questioning of the victim" would "challenge 

as inaccurate and unreliable" the testimony that Berrios's own 

statements had "essentially corroborated." Berrios wanted to 

challenge the reliability of the victim's statement that he was 

the worst of the tormenters: the victim had been blindfolded 

during much of the abduction and therefore could not always 

reliably identify his aggressors, plus certain details provided at 

trial had not come up during the victim's 2009 PSR interview. He 
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also hoped to elicit testimony that Berrios saved the victim's 

life. The judge denied the motion because cross-examination "would 

be a bald attempt to mount an attack to [the victim's] credibility" 

that "would only serve to further victimize him," and, in any 

event, Berrios was not entitled to cross-examine the victim -- he 

had all the relevant information he needed and "had a fair 

opportunity to comment on it or otherwise challenge" that 

information. 

Ultimately, the district-court judge sentenced Berrios 

to a within-guidelines term of 136 months -- eight months less 

than the previous sentence. In so doing, the judge stated she had 

"carefully evaluated" Berrios's "conduct while the kidnapping 

victim was in his custody, as it was described at trial, not only 

by him but by the victim himself." As part of that, the judge 

found that Berrios was the one who "principally" held the victim 

and, based on the record, Berrios was responsible for 

"mistreat[ing] [the victim] the most." The judge also took into 

account Berrios's corroborative testimony: "I told him that if he 

screamed, that I was going to kill him"; "I placed [the gun] on 

his head"; "I intimidated him"; "[I] torture[d] him mentally." 

And now here we are, entertaining Berrios's latest claim 

of error: he submits that his procedural due process rights were 

violated when the district-court judge denied him the opportunity 

to contest misinformation about his treatment of the victim during 
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the abduction by cross-examining the "unreliable" victim, and this 

led to the imposition of a sentence based on inaccurate 

information. Unlike his last sentencing challenge, this one fails. 

Standard of Review 

We review the sentencing court's interpretation and 

application of the sentencing guidelines de novo, the fact-finding 

for clear error, and the judgment calls for abuse of discretion. 

United States v. Acevedo-López, 873 F.3d 330, 335 (1st Cir. 2017) 

(citation omitted). 

Discussion 

Berrios's appellate contentions boil down to the 

argument that his procedural due process rights were trampled when 

the district-court judge gave the victim's testimony "full 

credibility" without affording Berrios the opportunity to crossexamine2 the victim to demonstrate that the testimony was 

unreliable.3 To drive home his point, he casts doubt on the 

 2 To be clear: Berrios is using the term "cross-examine" very 

loosely. Because the government never brought in the victim to 

testify at the sentencing hearing, what Berrios actually means by 

"cross-examine" is his effort to compel the government to make the 

victim available at sentencing so that Berrios might probe the 

victim about testimony he gave at the codefendant's trial. This 

is not a classic "cross-examination." 

3 Berrios advances much of his procedural due process argument 

under the three-prong test set forth in Mathews v. Eldridge, 424 

U.S. 319, 335 (1976), which we have never used to guide our 

analysis in this context. Because we dispose of his arguments on 

appeal under our controlling case law in this arena, as we discuss 
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testimony's reliability by comparing and contrasting it with the 

PSR: in the victim's 2009 interview for Berrios's PSR, the victim 

revealed that the kidnappers kicked him in the head daily, struck 

him with a wooden stick, and poured water on him, but these details 

do not appear in the victim's 2012 trial testimony. Berrios 

emphasizes that the victim accused Berrios of "mistreat[ing] [him] 

the most" for the very first time during the 2012 trial. He also 

presses that several kidnappers abused the victim, but with the 

victim often blindfolded, he could not have known who "mistreated 

[him] the most." Berrios submits that he should have been allowed 

to cross-examine the victim during his sentencing proceedings to 

zero in on all of this "questionable" information. 

Unsurprisingly, the government disagrees.4 Because 

procedural due process protections at sentencing are narrower than 

those prior to the establishment of a defendant's guilt, the 

government says that Berrios has no right to cross-examine the 

 

in our primer, we need not weigh in on or employ his suggested 

framework. 

4 We pause to address a threshold argument advanced by the 

government: at his second sentencing, when Berrios accepted as 

true the district-court judge's factual findings -- telling the 

court through counsel that he had "come to terms with the [c]ourt's 

findings in the last sentencing hearing . . . that [Berrios] was 

the man who tortured the victim, and he has come to realize that" 

-- he waived any argument that he was not the person who mistreated 

the victim the most. However, because we can dispose of the case 

on other grounds, we assume favorably to Berrios that he has not 

waived his arguments. 
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victim at the resentencing hearing. Berrios had advance notice of 

the trial testimony this time, as well as a chance to challenge it 

before he was sentenced. Further, the government argues that it 

was proper for the district-court judge, in her substantial 

discretion, to consider relevant trial testimony at sentencing, 

including trial testimony given without Berrios there to crossexamine the person testifying. 

Primer

At a sentencing hearing, neither the Federal Rules of 

Evidence nor the Sixth Amendment right to cross-examination apply, 

United States v. Bramley, 847 F.3d 1, 5 (1st Cir. 2017) (citing 

United States v. Rodriguez, 336 F.3d 67, 71 (1st Cir. 2003)), and 

sentencing judges may consider any evidence with "sufficient 

indicia of reliability to support its probable accuracy," United 

States v. Cintrón–Echautegui, 604 F.3d 1, 6 (1st Cir. 2010) 

(quoting United States v. Zapata, 589 F.3d 475, 485 (1st Cir. 

2009)); see also United States v. Doe, 741 F.3d 217, 235-36 (1st 

Cir. 2013). Under this approach, the court has considerable leeway 

to rely upon "virtually any dependable information." Doe, 741 

F.3d at 236 (quoting Cintrón–Echautegui, 604 F.3d at 6). This 

even includes "statements which have not been subjected to the 

crucible of cross-examination." Acevedo-López, 873 F.3d at 340 

(quoting Doe, 741 F.3d at 236). That said, the lower court's 

discretion is not boundless and must comport with due process 
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demands and the parameters of Rule 32 of the Federal Rules of 

Criminal Procedure.5 Bramley, 847 F.3d at 5. Indeed, due process 

requires that a defendant "be sentenced upon information which is 

not false or materially incorrect," id. (quoting United States v. 

Curran, 926 F.2d 59, 61 (1st Cir. 1991)), and "a defendant must be 

provided with a meaningful opportunity to comment on the factual 

information on which his or her sentence is based," id. at 6 

(quoting United States v. Berzon, 941 F.2d 8, 10 (1st Cir. 1991)). 

See also United States v. Kenney, 756 F.3d 36, 49-50 (1st Cir. 

2014); United States v. Rivera-Rodríguez, 489 F.3d 48, 55 (1st 

Cir. 2007). 

Analysis

Having reviewed the district-court judge's pronouncement 

of sentence -- which went down after she denied Berrios's request 

to first cross-examine the victim -- we see no error. Berrios's 

procedural due process rights were not violated by the districtcourt judge's decision denying Berrios's request to cross-examine 

 5 Rule 32 provides, in pertinent part, that the court must 

provide defendants "any information excluded from the presentence 

report . . . on which the court will rely in sentencing, and give 

them a reasonable opportunity to comment on that information." 

Fed. R. Crim. P. 32(i)(1)(B); see also United States v. RiveraRodríguez, 489 F.3d 48, 53 (1st Cir. 2007) (highlighting that the 

Supreme Court has instructed that Rule 32 "contemplates full 

adversary testing of the issues relevant to a [g]uidelines sentence 

and mandates that the parties be given 'an opportunity to comment 

upon the probation officer's determination and on other matters 

relating to the appropriate sentence.'" (quoting Burns v. United 

States, 501 U.S. 129, 135 (1991))). 
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the victim because he had no right to do so: as we've already 

explained, there is no Sixth Amendment right to cross-examine at 

sentencing. Bramley, 847 F.3d at 5 (citing Rodriguez, 336 F.3d at 

71). And Berrios had advance access to the PSR and transcripts of 

trial testimony (none of which were "new" or unknown to him by 

that point), as well as his "meaningful opportunity to comment on 

the factual information on which his . . . sentence is based" at 

the resentencing hearing, and that's all the due process required 

here. Id. at 6 (quoting Berzon, 941 F.2d at 9); see also Kenney, 

756 F.3d at 50 (explaining that the lower court's reliance on 

testimony from the codefendant's trial was appropriate when the 

information was "hardly new" to the defendant and therefore could 

not have "taken [him] by surprise at his sentencing") (quoting 

Rivera-Rodriguez, 489 F.3d at 55); Rivera-Rodriguez, 489 F.3d at 

55 (concluding that information could not be considered "new" or 

absent from the record when it had been set forth in the 

indictment, PSR, and plea agreement). In fact, the sentencing 

judge here really took pains to list the information upon which 

she was basing the sentence, which -- especially on the heels of 

our remand order -- tells us that she was acutely aware that 

Berrios needed to be informed about the information that would 

help her craft his sentence. See, e.g., Bramley, 847 F.3d at 8 

(observing same). 
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And remember, as to the district-court judge's reliance 

on the victim's trial testimony, a sentencing judge, in her 

substantial discretion, can consider any evidence with sufficient 

indicia of reliability and can rely upon "virtually any dependable 

information." Doe, 741 F.3d at 236 (quoting Cintrón–Echautegui, 

604 F.3d at 6). Here, the victim's testimony, given under oath, 

that Berrios "mistreated [him] the most" was corroborated when 

Berrios testified that "the majority of the time the one who was 

with [the victim] was me," and he testified in detail about the 

various ways in which he physically and psychologically abused the 

victim. See Acevedo-López, 873 F.3d at 340 (noting that 

reliability can be supported by corroborating evidence); United 

States v. Zuleta-Alvarez, 922 F.2d 33, 37 (1st Cir. 1990). Plus, 

the resentencing judge presided over Berrios's codefendant's 

trial, so she was already familiar with the issues and had been 

there to observe the victim's testimony and assess credibility 

firsthand. See Acevedo-López, 873 F.3d at 340-41 (citing ZuletaAlvarez, 922 F.2d at 37). True, the victim may not have been 

cross-examined by Berrios or to Berrios's liking by counsel for 

the codefendant, but, as we've said before, "that is not fatal in 

and of itself." Id. (citing Doe, 741 F.3d at 236). Truth be told, 

even if the victim had not been cross-examined at trial, it would 

still be within the district-court judge's discretion, on this 

record, to consider the victim's testimony at sentencing. Id. at 
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340; see also Zuleta-Alvarez, 922 F.2d at 36; Cintrón–Echautegui, 

604 F.3d at 6. 

Final Words 

The last time this case was before us, we remanded it 

because the sentencing judge had relied upon information that had 

not previously been available to Berrios, and that had the effect 

of depriving him of the opportunity to comment on or otherwise 

challenge material information considered by the district court. 

But this time around, Berrios was aware of the testimony and he 

got his meaningful opportunity to address it during the 

resentencing. The district court committed no error in disallowing 

cross-examination of the victim at Berrios's resentencing. We 

affirm.