Of the Second Circuit, sitting by designation. *

United States Court of Appeals

For the First Circuit

No. 07-2134

UNITED STATES OF AMERICA,

Appellee,

v.

YNOCENCIO GONZÁLEZ-CASTILLO,

a/k/a Freddy Mora, a/k/a Freddy Correa,

a/k/a Ynocencio González,

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF PUERTO RICO

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

Before

Torruella, Selya, and Leval,*

Circuit Judges.

Raymond L. Sánchez-Maceira, on brief for appellant.

Julia M. Meconiates, Assistant United States Attorney, Rosa

Emilia Rodríguez-Vélez, United States Attorney, and Nelson PérezSosa, Assistant United States Attorney, Chief, Appellate Division,

on brief for appellee.

April 9, 2009
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TORRUELLA, Circuit Judge. In this sentencing appeal,

appellant, Ynocencio González-Castillo ("González") -- a Dominican

national who pled guilty to unlawfully entering the United States

after being previously deported –- challenges the sentence imposed

on him by the district court. The only issue presented is whether

the sentencing court committed plain error when it imposed a

sentence based, in part, on a fact not supported by the record.

After careful consideration, we conclude that the facts presented

by this appeal require that appellant's sentence be vacated and

that the case be remanded for resentencing.

I. Background

On November 13, 2006, appellant was detained by the

Border Patrol near Isabela, Puerto Rico, for a possible immigration

law violation. Appellant was suspected of being an undocumented

Dominican national who had illegally disembarked a few hours

earlier from a migrant vessel. Thereafter, an investigation was

conducted, during which a comparison of appellant's fingerprints

identified him as being a previously convicted felon who had been

removed from the United States on February 2, 2005 for the

commission of an aggravated felony. Appellant was consequently

ordered detained without bail.

On February 23, 2007, the appellant pled guilty to

unlawful entry into the United States after being previously

deported for commission of an aggravated felony in violation of 8
 The sentencing court made these statements in the context of the 1

following recitation at the sentencing hearing:

Before the Court is a 40-year-old Dominican

national whose immigration status is that of

an illegal alien. This is his second entry

into the United States without obtaining prior

consent or authorization from the U.S.

Attorney General. He was previously deported

in the year 2004 as an aggravated felon upon a

drug felony conviction in the district of New

York. He has a record of two prior drug

convictions and a weapons conviction.

In light of Defendant's prior convictions, his

two illegal entries in a two-year period, into

the United States, deterrence is the salient

factor in this particular case. Therefore,

the Court finds that a sentence within the

applicable advisory guideline range is

sufficient but not greater than necessary to

meet statutory objectives of punishment and

deterrence in this case.

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U.S.C. § 1326(a)(2), (b)(2). His guideline sentencing range

("GSR") was determined to be 57 to 71 months. At the sentencing

hearing the court stated that "[t]his is [appellant's] second entry

into the United States without obtaining prior consent or

authorization from the U.S. Attorney General" (emphasis added) and

also made reference to his record of two prior drug convictions as

well as one for a weapons violation. Thereafter, the court

reemphasized the appellant's multiple illegal entries as an

important factor in determining his sentence, stating that, "[i]n

light of Defendant's prior convictions [and] his two illegal

entries in a two-year period, into the United States, deterrence is

the salient factor in this particular case." (emphasis added). No 1
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objection was made by appellant's counsel to the court's statements

regarding defendant's "two illegal entries." Additionally, neither

the government attorney nor the probation officer present at the

sentencing hearing indicated any disagreement with the accuracy of

this factual conclusion. Appellant was ultimately sentenced to 71

months' imprisonment, the high end of the applicable GSR.

As it turns out, and as the government concedes, there is

nothing in the record to support the district court's assertion

that this was appellant's second illegal entry into the United

States, given that nothing in the record suggests that appellant's

first entry into the United States was illegal or that any

subsequent illegal entries took place. The record and the PreSentence Report ("PSR") indicate that, after González's first entry

into the United States in 1996, "[h]e adjusted his residency in

1997, when he married." This fact establishes that, at least after

1997 and prior to his deportation in 2004, appellant was legally in

the United States. That appellant held legal status during this

period is confirmed by the fact that when appellant was deported on

February 2, 2004, he was not deported as an illegal alien, but as

a permanent resident alien who had committed an aggravated felony.

Moreover, the fact that appellant was able to adjust his status

legally through marriage renders it less likely that his initial

entry in 1996 was illegal, as lawful entry is, in the vast majority

of cases, a prerequisite for adjustment. See, e.g., 8 U.S.C.
 Notwithstanding the failure of González's attorney to raise the 2

error, we note that the government also contributed to the error by

failing to call the matter to the attention of the sentencing

court.

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§ 1255(a) (stating that the "status of an alien who was inspected

and admitted or paroled into the United States . . . may be

adjusted . . . to that of an alien lawfully admitted for permanent

residence" (emphasis added)). At the very least, a contrary

inference cannot be presumed. Finally, even if appellant's first

entry into the United States in 1996 were illegal, a fact for which

there is absolutely no support in the record, this still would not

support the court's assertion at the 2007 sentencing hearing, that

appellant had committed two illegal entries in a two-year period.

The district court's error in basing appellant's sentence on these

unsupportable factual assertions forms the basis of the instant

appeal.

II. Discussion

Because appellant's lawyer failed to object at sentencing

to the district court's unsupported statement regarding his

multiple illegal entries, "we review for plain error." United

States v. Mangual-García, 505 F.3d 1, 15 (1st Cir. 2007). For us 2

to vacate a sentence under the plain error standard, appellant

bears the burden of establishing that "(1) an error occurred; (2)

the error was clear and obvious; (3) the error affected the

defendant's substantial rights; and (4) the error impaired the
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fairness, integrity, or public reputation of the judicial

proceedings." Id.

We keep in mind that in reviewing the reasonableness of

a sentence, we must first determine whether the district court

committed any procedural errors. United States v. Politano, 522

F.3d 69, 72 (1st Cir. 2008). Such errors include "selecting a

sentence based on clearly erroneous facts." Gall v. United States,

128 S. Ct. 586, 597 (2007).

Applying the plain error standard, we find that there is

no question that an error occurred, a point that the government now

concedes. Nor does the government dispute that the error was

"clear and obvious," as it certainly was, given that, as explained

above, the subject of the present conviction is the only instance

of an illegal entry by the appellant at any time shown anywhere in

the record. See Mangual-García, 505 F.3d at 15. Notably, this was

a procedural error, which, under a different procedural posture,

would constitute an "abuse of discretion." See United States v.

Torres, 541 F.3d 48, 51 (1st Cir. 2008) (listing "selecting a

sentence based on clearly erroneous facts" as among the "procedural

errors amounting to an abuse of discretion" by the sentencing

court).

Nevertheless, because our review is for plain error, we

must proceed to the third and fourth prongs of the plain error

analysis and inquire whether the sentencing court's error affected
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appellant's substantial rights, and whether basing the sentence on

this erroneous fact of apparent significance to the sentencing

court impaired the fairness, integrity or public reputation of the

judicial proceeding. We believe that the answer to both inquiries

favors the appellant.

First, in terms of substantial rights, this prong of the

plain error inquiry translates, in the sentencing context, into the

requirement of "a reasonable probability that, but for the error,

the district court would have imposed a different, more favorable

sentence." United States v. Perazza-Mercado, 553 F.3d 65, 78 (1st

Cir. 2009) (quoting United States v. Gilman, 478 F.3d 440, 447 (1st

Cir. 2007)). The government is in a tenuous position in arguing

that appellant's rights were not substantially affected by the

sentencing court's assumption of the unsupported fact. The nature

of the error was such that the court erroneously believed that the

appellant had already committed, within a two-year period, the very

same crime for which he was then being sentenced, namely, illegal

entry. This unsupported "fact," "two illegal entries in a two-year

period," became, along with the appellant's "prior convictions," a

primary reason why the court chose, in its words, to make

deterrence "the salient factor" in this case. It then proceeded to

impose the highest sentence possible within the applicable GSR.

There is, no doubt, a reasonable probability that had the taint of
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this factual error been absent, the weight behind a deterrencedriven sentence would have been substantially reduced.

Moreover, in assessing the importance attributed by the

court to this unfounded "fact," we find it particularly telling

that the court mentioned the "fact" twice in explaining the top-ofthe-GSR, deterrence-driven sentence ultimately imposed. There is

certainly a "reasonable probability" that, but for the error,

González would have received a lesser sentence. See id. at 78.

Thus, in view of the sentencing court's explanatory statements, it

would be contrary to logic to conclude that the court's factual

error did not affect appellant's substantial rights.

Lastly, we believe that basing a substantial criminal

sentence on a non-existent material fact threatens to compromise

the fairness, integrity, or public reputation of the proceedings.

It is well-established that a criminal defendant holds "a due

process right to be sentenced upon information which is not false

or materially incorrect." United States v. Pellerito, 918 F.2d

999, 1002 (1st Cir. 1990); see also Townsend v. Burke, 334 U.S.

736, 740-41 (1948). We think that the fairness of appellant's

sentence was impaired by the deprivation of this right and

therefore, even under plain error review, we should exercise our

discretion to afford him a new sentencing hearing.

The sentence imposed on appellant is vacated and the case

is remanded for action consistent with this opinion.
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Vacated and Remanded.