United States Court of Appeals 

For the First Circuit 

No. 17-1346 

UNITED STATES OF AMERICA, 

Appellee, 

v. 

JOSUE MARRERO-PÉREZ, 

Defendant, Appellant. 

APPEAL FROM THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF PUERTO RICO 

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

Before 

Torruella, Boudin, and Barron, 

Circuit Judges. 

 Rick Nemcik-Cruz on brief for appellant. 

 Rosa Emilia Rodríguez-Vélez, United States Attorney, Mariana 

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

Appellate Division, and Julia M. Meconiates, Assistant United 

States Attorney, on brief for appellee. 

January 25, 2019 
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BOUDIN, Circuit Judge. Police officers in Puerto Rico 

received a tip as to the whereabouts of Josue Marrero-Pérez 

("Marrero"), who had left Delaware to evade arrest on an 

outstanding warrant. Locating him at his premises in Puerto Rico, 

they discovered in plain view in the building a Glock pistol and 

a Smith & Wesson semiautomatic pistol, each loaded with ammunition. 

They arrested him and a grand jury indicted him on two counts of 

possessing a firearm while prohibited from doing so because of a 

prior felony conviction, 18 U.S.C. § 922(g)(1), and because of his 

fugitive status, id. § 922(g)(2). 

Without a plea bargain, Marrero pled guilty to both 

charges. The final presentence investigation report ("PSR") 

recommended that the guidelines range be fixed at 37-46 months in 

prison, based on a recommended total offense level of 17 and a 

recommended criminal history category of IV. The probation 

officer's report set out an ominous criminal record, some of whose 

detail and characterizations Marrero disputes in this appeal. 

According to the report, as a juvenile Marrero behaved violently 

and was arrested regularly, and as an adult he had been convicted 

twenty times including for assault, drug violations, resisting 

arrests and possessing a firearm with an obliterated serial number. 

The PSR advised that Marrero's category IV designation 

substantially understated his criminal history and likelihood of 

further crimes, suggesting as options an upward departure or a 
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variant sentence. The PSR had been available to Marrero and his 

lawyer but no objection was made to the report, and at sentencing 

defense counsel stated that he had reviewed the PSR prior to that 

hearing. He did not object to the report at any time before the 

sentence. 

At sentencing, after hearing Marrero's allocution and 

his lawyer's request for a sentence at the lower end of the 

proposed range, the court said that Marrero's record called for an 

upward departure. See U.S.S.G. § 4A1.3(a)(1). As the judge 

concluded at sentencing, 

Mr. Marrero's vast prior record, as reflected in the 

pre-sentence investigation report and history of 

convictions, indicates that his Criminal History 

Category substantially underrepresents the seriousness 

of his offense or the likelihood that he will commit 

other crimes. . . . Mr. Marrero has been arrested at 

least 44 times during his life . . . . As an adult, Mr. 

Marrero has more than 20 convictions . . . . According 

to documentation received from the probation officer, in 

the District of Delaware, Mr. Marrero has the following 

known history of warrants: 25 failure to appear, 13 

violations of probation, and 28 failures to pay, all of 

which is consistent with Mr. Marrero's utter disregard 

for the law and high[] likelihood of recidivism. 

The district court imposed a variant sentence of 72 

months, itself in excess of the 60-month upward variance proposed 

by the government. The most difficult issue on this appeal 

concerns the possibility that the judge at sentencing relied in 

his upward variance on prior arrests of the defendant which did 
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not result in convictions; Marrero also objects to a lack of detail 

in other cases where the conviction is conceded. 

 In addition to the PSR, documents concerning 

outstanding warrants in Delaware were apparently provided by the 

probation officer to the court; this information was not included 

in the PSR but was referred to by the court at sentencing. Marrero 

now suggests that it is a "fair inference" from the sentencing 

transcript that these documents were provided to the court ex parte 

and should have been tested at a hearing. 

 Marrero's strongest arguments are that the sentencing 

judge (1) relied on past arrests listed in the PSR (usually 

involving at worst trivial conduct), many of which did not result 

in prosecution or conviction, and (2) relied on ex parte documents 

which were not timely disclosed to the defense. 

We agree that as a matter of judicial policy, in this 

case and henceforth, no weight should be given in sentencing to 

arrests not buttressed by convictions or independent proof of 

conduct. See U.S.S.G. § 4A1.3(a)(3). In certain perhaps rare 

cases, a reasonable person might in particular circumstances 

assign some weight to a collection of arrests, but no such argument 

is made or available here. To rely on acquitted conduct in 

sentencing was troublesome enough even where the government needed 

to provide only preponderant proof rather than proof beyond a 
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reasonable doubt, see United States v. Watts, 519 U.S. 148, 152 

(1997) (per curiam); proof only of an arrest is no proof of guilt. 

 As for lack of detail, the PSR offers nothing as to the 

substance of the juvenile conduct for seven of the ten arrests; 

and no facts are provided for ten of the twenty adult convictions 

beyond the fact of conviction; whether in most cases more is 

required is more doubtful. But other arrests resulted in 

proceedings that were nolle prossed or otherwise terminated 

without a trial or a guilty plea. 

Subtracting allegations in the PSR for which there are 

no detailed records or for which no conviction resulted, much 

remains that is unhelpful to Marrero, and serious prior crimes and 

recidivist behavior are of course proper considerations at 

sentencing. 18 U.S.C. § 3553(a)(1)-(2)(C). How unhelpful is a 

judgment call largely confided to the sentencing judge, who is in 

a good position to make such individualized assessments. See Gall 

v. United States, 552 U.S. 38, 51-52 (2007). 

Reliance on arrests alone or other dubious inferences to 

enhance a criminal sentence might be thought to offend the often 

invoked "presumption of innocence," but historically the 

presumption has governed only the trial itself. United States v. 

Doyle, 348 F.2d 715, 721 (2d Cir. 1965) (Friendly, J.). Thus, at 

sentencing judges have long been free to rely on anything useful 
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that is established by a preponderance of the evidence, without 

regard to ordinary rules of trial evidence.1 

The line between the criminal trial itself and almost 

everything afterwards is sharp, enshrining the care and protection 

afforded to the defendant at the trial. The comparative 

informality of everything after the guilty verdict has practical 

advantages and is too well settled for debate. The Supreme Court 

may on a rare occasion arguably seem to extend the presumption of 

innocence beyond its historical core, see, e.g., Nelson v. 

Colorado, 137 S. Ct. 1249 (2017), but not yet in any discernable 

pattern directly relevant to a sentencing hearing. 

Marrero's failure to object to the sentence based on 

the judge's possible reliance on arrests not resulting in 

conviction does not insulate the district judge's purported error 

from review by this court--even under the plain error test--and 

this circuit has several times warned over a three-year period 

against reliance on arrests as a proxy for criminal culpability or 

the likelihood of recidivism. United States v. Rondón-García, 886 

F.3d 14, 25-26 (1st Cir. 2018); United States v. Delgado-Sánchez, 

849 F.3d 1, 13 (1st Cir. 2017); United States v. Cortés-Medina, 

 1 See McMillan v. Pennsylvania, 477 U.S. 79, 91 (1986); Taylor 

v. Kentucky, 436 U.S. 478, 483 n.12 (1978); United States v. 

Gonzalez-Vazquez, 34 F.3d 19, 25 (1st Cir. 1994); see also In re 

Whitney, 421 F.2d 337, 338 (1st Cir. 1970) (presumption of 

innocence does not apply to probation revocation). 
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819 F.3d 566, 570 (1st Cir. 2016). In sum, to equate arrest with 

guilt is by now both error and obviously so. 

Material about past offenses may be furnished wholesale 

to the probation officer by the government's lawyer and probably 

as often adopted by the probation officer without much scrutiny--

counting on defense counsel to object if warranted. So far as 

appears, no such objection was advanced here, so the judge ended 

up with a package of allegations, correctly believing that defense 

counsel never disputed the underlying facts or the negative 

inferences one might draw from them. The crimes proved by adult 

convictions, without more, may well have justified an upward 

variance. U.S.S.G. § 4A1.3(a)(1). This is a classic issue for the 

district judge and would be tested, even if the objection had been 

made and preserved, only for abuse of discretion. See United 

States v. Vázquez-Martínez, 812 F.3d 18, 26 (1st Cir. 2016). 

Given the lack of objection, the ordinary test is for 

plain error, United States v. Sosa-González, 900 F.3d 1, 4 (1st 

Cir. 2018), which requires that a defendant show that (1) an error 

occurred, (2) the error was obvious, (3) the error affected 

substantial rights, and (4) the error seriously impaired the 

fairness, integrity, or public reputation of judicial proceedings, 

see Constant v. United States, 814 F.3d 570, 580 (1st Cir. 2016). 

Other statements by this court stress particular aspects of the 
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test pertinent to the case at hand, but the stress is almost always 

on one or more of the factors set forth in Constant.2 

Applying the Constant formulation, we think that an 

error occurs when a district judge relies on an arrest report, 

without some greater indicia of reliability that the conduct 

underlying the arrest took place; the "obviousness" of the error 

is a matter of degree but becomes greater with every new case; 

whether the error affects the outcome depends on the facts peculiar 

to the case (e.g., the presence or absence of corroborating 

evidence in the record concerning the conduct underlying the 

arrests without convictions); and the fourth factor--the 

"miscarriage of justice" standard, Alicea, 205 F.3d at 484--is 

implicated if the sentence has truly been altered by the arrests, 

itself a matter that the district judge can readily lay to rest on 

remand. 

While the record permitted a variance upward on the basis 

of convictions, we think that Marrero has made a strong enough 

case that the sentencing judge relied on these past arrests in 

 2 See Rondón-García, 886 F.3d at 24 (noting that for an error 

to have affected a defendant's substantial rights, a defendant 

must show that there is a "reasonable probability that, but for 

the error, the district court would have imposed a more favorable 

sentence" (internal quotation marks omitted)); United States v. 

Saxena, 229 F.3d 1, 5 (1st Cir. 2000) (describing the final prong 

of the plain error test as a "miscarriage-of-justice standard" 

(citing United States v. Alicea, 205 F.3d 480, 484 (1st Cir. 

2000))). 
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determining the sentence. Here, the specific conduct underlying 

the dismissed charges was not, as sometimes happens, set forth in 

undisputed portions the PSR. See Mercer v. United States, 834 

F.3d 39, 50 (1st Cir. 2016). Finally, the sentencing judge stated 

on the record that "Mr. Marrero's vast prior record" and the fact 

that he "has been arrested at least 44 times during his life," 

along with other factors, were "consistent with [his] utter 

disregard for the law and high[] likelihood of recidivism." 

It is enough to warrant a remand that the reliance on 

such arrests--now an obvious error--"set the wrong framework for 

the sentencing proceedings," Molina-Martinez v. United States, 136 

S. Ct. 1338, 1345 (2016). Marrero is not in turn required to show 

that this obvious error in fact influenced the length of the 

sentence, a showing that in most cases will be nearly impossible 

for a defendant to make given the kitchen-sink approach to 

sentencing pronouncements adopted by many judges. Cf. id. at 1347. 

While the lack of objections throughout usually would 

defeat a defendant's effort to seek a remand, this course would 

merely defer the matter to a likely habeas proceeding directed at 

trial counsel's competence. A predictable habeas petition would 

prolong and further complicate proceedings and ultimately cost 

time and trouble for judge and counsel alike, and the defendant 

would already be serving his sentence when, a year or two later, 

he would discover its duration. 
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Our concerns are reinforced not by the lack of detail 

regarding the facts underlying the convictions--that is common, 

see, e.g., United States v. Turbides-Leonardo, 468 F.3d 34, 37 

(1st Cir. 2006), and only occasionally troublesome--but by the 

second argument raised by Marrero, that is, the still not fully 

explained material submitted ex parte by the probation officer to 

the court concerning certain outstanding warrants in Delaware. 

The record is not clear on this point, but it appears that defense 

counsel did not object at the sentencing hearing. Rather, at the 

end of miscellany (e.g., which prison the judge might recommend 

for Marrero), defense counsel said only that he wanted some 

documentation that the probation officer had employed (it appears 

that defense counsel had declined earlier to review it). He did 

ask for his own copy at the end of the hearing and this the court 

granted. 

A remanding appeals court has authority to shape a remand 

as circumstances warrant, see United States v. Correy, 570 F.3d 

373, 378 (1st Cir. 2009). Whether or not the conduct underlying 

the prior arrests can be shown by a preponderance of the evidence 

--and whether that matters to the district judge--is for him to 

say on remand, but either way public confidence will be served by 

an explicit answer. The defendant can also pursue the issue of 

the basis and impact of the ex parte material; but here the 
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district judge is free to take into account the lack of timely 

objection. 

Ex parte communication between the probation officer and 

the court is usually permissible where the court is merely seeking 

advice or analysis, United States v. Bramley, 847 F.3d 1, 7 (1st 

Cir. 2017); to some extent the probation office is an extension of 

the district court, see United States v. Saxena, 229 F.3d 1, 5 n.1 

(1st Cir. 2000), and the probation officer and the court may 

consult privately about certain issues incident to criminal 

sentencing, see United States v. Fraza, 106 F.3d 1050, 1056 (1st 

Cir. 1997). But where the probation officer discloses new facts 

that bear on the judge's sentencing calculus, cf. United States v. 

Craven, 239 F.3d 91, 102 (1st Cir. 2001), the general rule requires 

disclosure to the defense in advance of the sentencing hearing and 

an opportunity to subject the new material "to whatever adversarial 

testing may be appropriate," Bramley, 847 F.3d at 7. 

The ex parte material in this case, the outstanding 

warrants in Delaware, are pretty thin as against defendant's own 

criminal record but might suggest a proclivity for lawlessness or 

at best a disrespect for the court system. If the information 

about the warrants was not included elsewhere in the record or 

made known to Marrero prior to sentencing, reliance on this 

information at sentencing would also have been error. See United 

States v. Millán-Isaac, 749 F.3d 57, 70 (1st Cir. 2014). 
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Marrero's counsel may well have received adequate 

advanced notice of the ex parte material and simply declined to 

review it, as was true with other material; Marrero says only that 

it is a "fair inference" from the sentencing transcript that the 

material was provided ex parte. Whatever happened, the facts and 

the consequences are for the district court's consideration on 

remand. 

The sentence is vacated and the matter remanded for 

resentencing in accordance with this decision. It is so ordered.