United States Court of Appeals 

For the First Circuit 

No. 14-1670 

UNITED STATES OF AMERICA, 

Appellee, 

v. 

ÁNGEL L. COTTO-NEGRÓN, a/k/a Quija, 

Defendant, Appellant. 

APPEAL FROM THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF PUERTO RICO 

[Hon. José A. Fusté, U.S. District Judge] 

Before 

Howard, Chief Judge, 

Selya and Lipez, Circuit Judges. 

Tina Schneider on brief for appellant. 

Rosa Emilia Rodríguez-Vélez, United States Attorney, Nelson 

Pérez-Sosa, Assistant United States Attorney, Chief, Appellate 

Division, and Juan Carlos Reyes-Ramos, Assistant United States 

Attorney, on brief for appellee. 

 

January 9, 2017 
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LIPEZ, Circuit Judge. Appellant Ángel Cotto-Negrón pled 

guilty to one count of committing a Hobbs Act robbery in violation 

of 18 U.S.C. § 1951(a) and was sentenced to a prison term of 120 

months. On appeal, he challenges his sentence as both procedurally 

and substantively unreasonable. We agree that the sentence was 

procedurally unreasonable because it was premised on factual 

findings that are not supported by any evidence in the record. 

Accordingly, we vacate the sentence and remand the case for 

resentencing. 

I.

In setting forth the facts of this case, we draw upon 

the stipulated facts in the plea agreements of Cotto-Negrón and 

his co-defendants and their respective presentence investigation 

reports ("PSRs"). 

In December 2010, Cotto-Negrón and a number of codefendants met several times to plan a robbery of a Kmart store 

located at San Patricio Plaza in Guaynabo, Puerto Rico. On 

December 31, Cotto-Negrón, along with William Zambrana-Sierra, 

Analdi Tanco-Moreno, and one other co-defendant, drove with 

accomplice Edgar Velazquez-Fontanez to the Kmart, dropping 

Velazquez-Fontanez off to execute the robbery. There is no 

evidence in the record indicating which of the co-defendants was 

the driver of the car. Velazquez-Fontanez entered the store and 

hid in the sporting goods section until the store closed. He 
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announced to two night crew employees that the store was being 

robbed and then struck one of the employees with the butt of a 

firearm, causing bleeding and a laceration to the victim's head. 

Velazquez-Fontanez next tied up the employees and began stealing 

merchandise. After more employees arrived at the Kmart in the 

morning, Velazquez-Fontanez forced the manager to open the store 

safe, and he took the money inside. He exited the store with the 

merchandise and cash, exceeding $50,000 in total value. At that 

point the same group of accomplices arrived back at the Kmart, 

picked up Velazquez-Fontanez, and drove off. 

In September 2013, a grand jury issued a five-count 

indictment related to the robbery of two Kmart stores, including 

the Kmart at San Patricio Plaza. Cotto-Negrón, Zambrana-Sierra, 

and Tanco-Moreno were charged under count one, conspiracy to commit 

robbery, and count three, robbing the Kmart at San Patricio Plaza, 

both in violation of the Hobbs Act, 18 U.S.C. § 1951(a). They 

were not charged under any other counts in the indictment.

All three agreed to plead guilty to count three in 

exchange for dismissal of the conspiracy count. Each of their 

plea agreements incorporated identical stipulated facts regarding 

their illegal activity, and the PSRs of Cotto-Negrón and ZambranaSierra likewise contained an identical recitation of facts 
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describing the San Patricio robbery and their respective roles in 

the crime.1

As part of their respective plea agreements, CottoNegrón, Zambrana-Sierra, and Tanco-Moreno each agreed with the 

government to a recommended Sentencing Guidelines calculation at 

a total offense level of 26.2 Zambrana-Sierra and Tanco-Moreno 

were both sentenced in accordance with their agreements at the low 

end of the Guidelines range consistent with their respective 

criminal histories.

Cotto-Negrón was sentenced one day after ZambranaSierra. As with the other two defendants, the court accepted the 

calculation recommended in his plea agreement -- but with one 

addition. Citing a recommendation by the probation office in 

Cotto-Negrón's PSR, the court announced at the sentencing hearing 

that it was including a two-level Guidelines enhancement because 

 1 Tanco-Moreno's PSR is not a part of the record in this case, 

but we have no reason to believe that the facts concerning the San 

Patricio robbery in Tanco-Moreno's PSR are any different from those 

described in Cotto-Negrón's or Zambrana-Sierra's PSRs.

2 Each defendant agreed to the same recommended Guidelines 

calculation: A base offense level of twenty, see U.S.S.G. 

§ 2B3.1(a); five additional levels for the brandishing or 

possession of a firearm, see U.S.S.G. § 2B3.1(b)(2)(C); two 

additional levels for the physical restraint of a victim, see 

U.S.S.G. § 2B3.1(b)(4)(B); two additional levels because the value 

of the loss was greater than $50,000, see U.S.S.G. 

§ 2B3.1(b)(7)(C); and the subtraction of three levels for 

acceptance of responsibility, see U.S.S.G. § 3E1.1.
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a victim had sustained a bodily injury.3 The resulting total 

offense level for Cotto-Negrón was thus 28. 

Cotto-Negrón's lawyer objected to the application of the 

bodily injury enhancement because the court had not imposed it on 

the two other co-defendants. The following colloquy then ensued:

COURT: Don't talk about yesterday's sentence, 

because the individual in that case did not 

drive anybody to the Kmart, nor picked up any 

victims in the Kmart. It's completely 

different. It's not the same. 

DEFENSE COUNSEL: As I understand it, Your 

Honor, they're in the same situation. 

COURT: No. No. They are not in the same 

situation. 

DEFENSE COUNSEL: Your Honor, the statement of 

facts is the same. 

COURT: No, they are not the same. They are 

not the same by any means. 

* * * 

COURT: Have you read the PS[R] from 

yesterday's defendant? 

DEFENSE COUNSEL: No, Your Honor. 

COURT: So how do you know it's the same? 

DEFENSE COUNSEL: Because, Your Honor, the 

level of participation, during the process of 

gathering information from the case, they were 

 3 Guidelines § 2B3.1(b)(3) provides: "If any victim sustained 

bodily injury, increase the offense level according to the 

seriousness of the injury[.]" A bodily injury that does not amount 

to serious, permanent, or life-threatening bodily injury is 

assigned an increase of two levels. Id. § 2B3.1(b)(3)(C). 
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in the same exact position as to level of 

participation. 

COURT: They are not in the same level of 

participation. 

* * * 

DEFENSE COUNSEL: I'm just saying, Your Honor, 

here in the PSR, definitely going to the 

argument of what we understand is the 

disparity between one defendant and the other, 

it says that they dropped him off, and they 

will return to Kmart the next day. So if we 

have a defendant that did not receive the 

enhancement that Mr. Cotto is getting, and the 

participation is the same, there is an issue. 

COURT: Your client took the robbers that were 

going to stay inside the store to the store, 

and picked them up the next day. 

DEFENSE COUNSEL: I understand that. 

COURT: The other gentleman did not do that. 

DEFENSE COUNSEL: But, Your Honor, his name is 

right there in the facts. 

COURT: He may be there, but that's not what 

happened. 

DEFENSE COUNSEL: Well, the information that 

we have is they're in the same position, Your 

Honor. 

COURT: That's not what happened. 

DEFENSE COUNSEL: And that's our argument. 

COURT: Completely different case. . . . 
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The court then sentenced Cotto-Negrón to a prison term of 120 

months, near the high end of the Guidelines range for his 

applicable criminal history category and total offense level.4

Cotto-Negrón timely appealed, arguing that his sentence 

was procedurally unreasonable because the court relied on clearly 

erroneous facts, and substantively unreasonable because the court 

applied the two-level enhancement to him when it declined to apply 

it to his two identically culpable co-defendants. 

II.

When examining a district court's discretionary 

sentencing decisions, our review is "limited to determining 

whether they are 'reasonable.'" United States v. Ayala-Vazquez, 

751 F.3d 1, 29 (1st Cir. 2014) (quoting Gall v. United States, 552 

U.S. 38, 46 (2007)). This review is a bifurcated process in which 

we first determine whether the sentence imposed is procedurally 

reasonable before turning to its substantive reasonableness. Id. 

When examining the procedural reasonableness of a 

sentence, "we review factual findings for clear error; arguments 

that the sentencing court erred in interpreting or applying the 

guidelines de novo; and judgment calls for abuse of discretion 

simpliciter." United States v. Leahy, 668 F.3d 18, 21 (1st Cir. 

 4 Cotto-Negrón was in Criminal History Category III. Combined 

with a total offense level of 28, that category results in a 

sentencing range of 97-121 months of imprisonment. 
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2012) (citations omitted). Significant procedural errors include 

"failing to calculate (or improperly calculating) the Guidelines 

range, treating the Guidelines as mandatory, failing to consider 

the [18 U.S.C.] § 3553(a) factors, selecting a sentence based on 

clearly erroneous facts, or failing to adequately explain the 

chosen sentence -- including an explanation for any deviation from 

the Guidelines range." Ayala-Vazquez, 751 F.3d at 29 (alterations 

in original) (quoting Gall, 552 U.S. at 51). 

III. 

Cotto-Negrón's procedural unreasonableness argument 

focuses on the district court's decision to impose a two-level 

enhancement to his offense level under U.S.S.G. § 2B3.1(b)(3)(A). 

That guideline provides for a two-level increase "[i]f any victim 

sustained bodily injury" during the course of a robbery. CottoNegrón does not contest that a victim of the crime suffered a 

bodily injury. To the contrary, the injury is acknowledged both 

in his plea agreement and in his PSR. Instead, he focuses on the 

facts cited by the district court to justify application of the 

enhancement in his sentencing but not in the sentencing of codefendants Zambrana-Sierra and Tanco-Moreno. 

Cotto-Negrón's attorney argued at the sentencing hearing 

that the enhancement should not be imposed on his client because 

the district court did not apply it the previous day when 

sentencing Zambrana-Sierra. The district court admonished him, 
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stating that Zambrana-Sierra was less culpable because, unlike 

Cotto-Negrón, he "did not drive anybody to the Kmart, nor picked 

up any victims in the Kmart" and that "[i]t's completely different. 

It's not the same." When Cotto-Negrón's attorney attempted to 

point out to the district court that the co-defendants' plea 

agreements described identical factual circumstances, the court 

responded "No. No. They are not in the same situation." The judge 

asserted on the record no fewer than eight times that CottoNegrón's role in the crime was factually distinct from ZambranaSierra's.5

We find no basis in the record for the court's conclusion 

that Cotto-Negrón played a role in the Kmart robbery different 

from that of Zambrana-Sierra and Tanco-Moreno. All three plea 

agreements and at least two of the PSRs (i.e., Cotto-Negrón's and 

Zambrana-Sierra's), see supra note 1, reported the exact same facts 

about the robbery and depicted identical roles for each defendant. 

The district court cited no evidence in the record showing, for 

example, that Cotto-Negrón was the driver of the vehicle that 

 5 The district court also implied that Cotto-Negrón's attorney 

was wrong to compare his client's criminal culpability to ZambranaSierra's culpability because Cotto-Negrón's attorney was not privy 

to Zambrana-Sierra's PSR and could not know if the factual 

circumstances were the same for both defendants. For purposes of 

this appeal, we granted Cotto-Negrón's attorney access to the 

relevant portions of Zambrana-Sierra's PSR and note that both 

defendants' PSRs indeed contain identical language regarding their 

respective roles in the San Patricio robbery.
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dropped Velazquez-Fontanez at the Kmart. We find no such evidence 

in the record, either. The court thus clearly erred in ascribing 

a different level of culpability to Cotto-Negrón on the basis of 

his role in the offense. 

Cotto-Negrón argues before us that because his sentence 

hinged upon clearly erroneous facts, it was procedurally 

unreasonable and cannot stand. In response, the government insists 

that even if there are no factual differences between CottoNegrón's culpability and that of his two co-defendants, his claimed 

entitlement to resentencing is foreclosed by our decision in United 

States v. Kneeland, 148 F.3d 6 (1st Cir. 1998). In Kneeland, the 

defendant challenged the application of a Guidelines enhancement 

for his role as an organizer in a mail fraud and money laundering 

scheme, arguing that he was no more culpable than a co-defendant 

who did not receive the role enhancement. Id. at 16. Although we 

noted circumstantial differences between Kneeland, who received 

the enhancement, and the co-defendant who did not, we also offered 

the following observation: "Even if we were to assume that [the 

co-defendant's] role in the [crime] was commensurate with 

Kneeland's, this argument, without more, would not provide a basis 

for overturning the enhancement." Id. The government argues that 

because it is undisputed that the victim at the San Patricio Kmart 

sustained a bodily injury and that Cotto-Negrón's guideline 

sentencing range was calculated accurately, he is no different 
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from the defendant in Kneeland, and that case requires us to affirm 

his sentence.

The government, however, has misapplied the holding of 

Kneeland to the facts of this case. There, the defendant asserted 

that a role enhancement was inapplicable based on the facts of the 

crime. Here, the question is not whether the enhancement is 

factually supportable, but whether it was procedurally reasonable 

to apply the enhancement -- and hence impose a sentence -- based 

on the district court's clearly erroneous assumption that CottoNegrón was more culpable than his co-defendants. Well established 

precedent instructs that it was not. Even if the district court 

could have applied the enhancement to Cotto-Negrón despite its 

decision not to apply it to his co-defendants, a matter on which 

we take no view, it may not justify that difference based upon 

clearly erroneous facts. See Ayala-Vazquez, 751 F.3d at 29 

(holding that "selecting a sentence based on clearly erroneous 

facts" constitutes a "significant procedural error" (quoting Gall, 

552 U.S. at 51)); see also United States v. Rodriguez-Melendez, 

828 F.3d 35, 40 (1st Cir. 2006) ("To protect the fairness and 

integrity of the sentencing process, the district court should 

impose a sentence . . . based on a correct view of the facts."). 

In sum, the district court committed a clear error when 

it insisted without factual support that Cotto-Negrón was more 

culpable in the commission of the San Patricio Kmart robbery than 
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co-defendants Zambrana-Sierra and Tanco-Moreno. Hence, we vacate 

Cotto-Negrón's procedurally unreasonable sentence and remand the 

case for resentencing. We express no view as to the appropriate 

sentence or Guidelines calculation on remand.6

So ordered

 6 In light of this disposition, we do not address and intimate 

no view on appellant's argument concerning substantive 

unreasonableness.