Robbery Sentence Reversed: Bodily Injury Enhancement Not Supported

A judge cannot treat you more harshly than your co-defendants based on facts that are not in the record. The First Circuit made that point on January 9, 2017, when it threw out Ángel Cotto-Negrón's robbery sentence.

What happened

Cotto-Negrón and several co-defendants pleaded guilty to robbing a Kmart in Puerto Rico. During the robbery, another person hit an employee with a gun and caused a head wound.

The robbery guideline adds levels when "any victim sustained bodily injury." U.S.S.G. § 2B3.1(b)(3). For a plain bodily injury, it is a two-level increase.

A co-defendant was sentenced the day before without that increase, on the same facts. Cotto-Negrón argued at sentencing that he should not get it either.

The judge disagreed. He said Cotto-Negrón's role in the robbery was different from his co-defendants' roles, and added the two levels.

What the First Circuit held

The First Circuit vacated the sentence as procedurally unreasonable. It could not find any "basis in the record for the court's conclusion that Cotto-Negrón played a role in the Kmart robbery different from that of" his co-defendants. The factual summaries in the co-defendants' cases were the same as his.

The government argued the judge could still apply the enhancement even if the facts were the same. The court expressed no view on that question. It held only that a judge may not justify different treatment "based upon clearly erroneous facts."

The case was sent back for resentencing. United States v. Cotto-Negrón, No. 14-1670 (1st Cir. Jan. 9, 2017).

Why the record matters

Appeals courts look at the record: the presentence report (PSR, the report the probation office prepares before sentencing), the plea agreement, the transcripts, and what was said in court. Facts that never made it into the record are hard to rely on later. That is why objections to the PSR matter. Under the federal rules, the parties must state any objections to the PSR in writing within 14 days after receiving it. Fed. R. Crim. P. 32(f)(1).

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