The U.S. Court of Appeals for the First Circuit has to Cotto-Negron argued at sentencing that he should not receive a two-level bodily injury enhancement under U.S.S.G. 2B3.1(b)(3)(A) because his co-defendant, the day before, was not sentenced with the enhancement and the facts of their cases were identical. This enhancement applies when “any victim sustained bodily injury” during the course of a robbery. The district court stated at Cotton-Negron’s sentencing that the facts of his case were different from that of his co-defendants. On appeal, the First Circuit reversed on procedural reasonableness grounds. United States v. Cotto-Negron, No. 14-1670 (1st Cir. 2017).
The First Circuit held that it could not find any “basis in the record for the court's conclusion that Cotton-Negron played a role in the Kmart robbery different from that of” his co-defendants. In so holding, the court noted that the factual summaries from each of the co-defendant’s cases were the same as Cotton-Negron’s.
The Government attempted to counter Cotton-Negron’s argument by asserting that the district court was still free to give Cotton-Negron the enhancement even if the facts were the same. The First Circuit, while expressing no view on whether the court could have done this, held that the district court “may not justify that difference based upon clearly erroneous facts.” Accordingly, the case was remanded for re-sentencing.