Undisclosed, Material Ex Parte Sentencing Facts Require Vacatur and Reassignment on Remand (First Circuit)

Introduction

In United States v. Maldonado-Maldonado (1st Cir. June 8, 2026), the First Circuit vacated a resentencing because the district court relied on new and material disciplinary-violation information that was not in the record and was not disclosed to the defense before or during the hearing. The court held that, although ex parte communications with probation are not categorically forbidden, a defendant must be given notice and a meaningful chance to rebut new and significant factual information considered at sentencing. As a remedy, the court ordered resentencing before a different judge.

The case arose after Maldonado pleaded guilty to assaulting a federal corrections officer under 18 U.S.C. § 111(a)(1), (b). His first sentence was vacated in United States v. Maldonado-Maldonado (Maldonado I), 134 F.4th 32 (1st Cir. 2025), because the government breached the plea agreement. On remand, despite the government’s adherence to the plea agreement, the resentencing court imposed a 71-month sentence after referencing post-PSR disciplinary violations that defense counsel had not been told would be used.

Summary of the Opinion

  • Mandate-rule challenge rejected: Reviewing “tainted” materials from the earlier sentencing (where the government breached the plea agreement) did not clearly violate Maldonado I under plain-error review.
  • Procedural error found: The district court committed reversible procedural error by considering five recent disciplinary violations not in the PSR or otherwise in the record, without providing notice to the defense.
  • Reliance shown: The transcript reflected that the court used the undisclosed violations to assess rehabilitation and recidivism risk—core 18 U.S.C. § 3553(a) considerations.
  • Remedy: Sentence vacated; case remanded for expedited resentencing before a different district judge.

Analysis

Precedents Cited

1) Scope of the Record in Guilty-Plea Sentencings

The court framed the factual baseline by invoking United States v. Colón-Cordero, 91 F.4th 41 (1st Cir. 2024), emphasizing that after a guilty plea, sentencing facts typically come from the plea agreement, unobjected-to PSR portions, and the sentencing transcript. This baseline sharpened the “outside the record” problem: the disciplinary violations were neither in a PSR nor otherwise disclosed.

2) Mandate Rule and Plain-Error Constraints

The mandate discussion drew on United States v. Rosa-Borges, 174 F.4th 281 (1st Cir. 2026), United States v. Cheveres-Morales, 83 F.4th 34 (1st Cir. 2023), and United States v. Moran, 393 F.3d 1 (1st Cir. 2004), for the “letter and spirit” of the mandate and the bar on relitigating matters explicitly or implicitly decided.

The panel then emphasized the plain-error burden (via Rosa-Borges and Cheveres-Morales), including the “clear or obvious” requirement, elaborated with United States v. Muñoz-Gonzalez, 145 F.4th 21 (1st Cir. 2025) and United States v. Rabb, 5 F.4th 95 (1st Cir. 2021). Because Maldonado I did not bar the resentencing judge from reviewing earlier docket materials, any purported mandate violation was not “indisputable.”

3) Plea-Breach Remedies and “Clean Slate” Concepts

The court relied on United States v. Mojica-Ramos, 103 F.4th 844 (1st Cir. 2024), for the practice of remanding plea-breach resentencings to a different judge. It rejected Maldonado’s argument that reassignment required insulating the new judge from earlier filings and transcripts, underscoring that specific performance constrains the government, not the court, and that a judge retains broad discretion to review case materials.

In addressing what the defendant is “entitled to” from a plea agreement, the panel quoted United States v. Clark, 55 F.3d 9 (1st Cir. 1995), which in turn quoted Correale v. United States, 479 F.2d 944 (1st Cir. 1973): the bargain is for the prosecutor’s promised advocacy, not for any guaranteed effect on the judge.

The panel also referenced United States v. Castillo-Torres, 8 F.4th 68 (1st Cir. 2021), to rebut the practical claim that reading the earlier transcript uniquely contaminated resentencing—much of the breach was already described in the appellate opinion.

4) Ex Parte Probation Communications and Disclosure Duties

The core holding was built from a line of First Circuit cases:

  • United States v. Bramley, 847 F.3d 1 (1st Cir. 2017): Ex parte communications with probation are generally permissible, but factual information relevant to sentencing must be disclosed.
  • United States v. Ramos-Carreras, 59 F.4th 1 (1st Cir. 2023): A defendant has a right to be sentenced on accurate and reliable information, including the opportunity to rebut; a court may not rely on ex parte probation information that is both new (not already in the record) and significant/material.
  • United States v. Rivera-Rodríguez, 489 F.3d 48 (1st Cir. 2007): Provided the “new and significant”/materiality framework applied through Ramos-Carreras.

Applying these authorities, the panel concluded the undisclosed disciplinary violations were “new” (not in the PSR/record) and “material” because the judge expressly used them to assess rehabilitation and recidivism.

5) Standards of Review, Reliance Inference, and Harmless Error

Because Maldonado preserved the objection, the procedural sentencing challenge was reviewed for abuse of discretion, citing United States v. Coplin-Benjamin, 79 F.4th 36 (1st Cir. 2023).

To assess whether the judge relied on the improper information, the panel cited proximity/sequence reasoning from United States v. Navarro-Santisteban, 83 F.4th 44 (1st Cir. 2023) and reiterated its use in United States v. Ramos-Carreras, 59 F.4th 1 (1st Cir. 2023): referencing a fact immediately before imposing sentence supports an inference of reliance.

On harmlessness, the court invoked United States v. Negrón-Cruz, 153 F.4th 90 (1st Cir. 2025): procedural error is harmless only if it did not affect the sentence selection. The panel rejected harmlessness because the transcript repeatedly tied the undisclosed violations to rehabilitation/recidivism and to the sentencing decision—despite one statement that could be read as a disclaimer.

6) Remedy: Reassignment After Reliance on Undisclosed Ex Parte Facts

The reassignment directive was anchored in United States v. Zavala-Martí, 715 F.3d 44 (1st Cir. 2013), and United States v. Ramos-Carreras, 59 F.4th 1 (1st Cir. 2023), both requiring reassignment where a sentencing judge relied on new, significant ex parte probation facts. The government’s reference to “unusual cases” (quoting United States v. Rodríguez, 146 F.4th 48 (1st Cir. 2025)) did not overcome the directly on-point rule from Zavala-Martí/Ramos-Carreras.

Legal Reasoning

  1. Mandate claim (plain error): The panel treated the alleged mandate violation as forfeited and demanded an “indisputable” prohibition in Maldonado I. Finding none—and noting the sentencing court’s broad authority to consider information about the defendant (citing United States v. Ramos-Carreras, 59 F.4th 1 (1st Cir. 2023); United States v. Millán-Isaac, 749 F.3d 57 (1st Cir. 2014); and 18 U.S.C. § 3661)—the court held no clear or obvious error occurred.
  2. Extra-record disciplinary violations (abuse of discretion): The court accepted that probation can communicate ex parte, but it enforced the disclosure boundary: defendants must receive the facts the court will consider if those facts are new and material. The five post-PSR disciplinary incidents were undisclosed and then used to undermine allocution and justify recidivism concerns. That linkage made them “significant,” triggering reversible procedural error.
  3. Reliance and prejudice: The opinion read the sentencing transcript as showing actual reliance: (a) the judge itemized the new violations; (b) explicitly tied them to rehabilitation and recidivism; and (c) did so immediately before announcing the prison term. Given these dynamics, the panel declined to treat the error as harmless.
  4. Institutional remedy: Because the error involved undisclosed, ex parte-sourced facts, precedent called for reassignment to restore confidence in the resentencing process.

Impact

  • Hardens a procedural boundary on ex parte probation practice: The opinion reinforces that the permissibility of ex parte probation communications ends where new, sentencing-relevant facts begin; such facts must be disclosed with an opportunity to rebut.
  • Elevates “post-PSR, post-sentencing conduct” as especially sensitive: The panel’s materiality analysis highlights why recent disciplinary conduct can be uniquely influential—because it directly bears on present rehabilitation and recidivism assessments.
  • Signals strong remedial preference for reassignment: In the First Circuit, reliance on undisclosed, material ex parte facts is not just grounds for vacatur; it presumptively supports reassignment under Ramos-Carreras/Zavala-Martí.
  • Limits expansive “clean slate” arguments after plea-breach remands: Reassignment after a plea breach does not mean the new judge must be insulated from the case history; specific performance is principally about the government’s advocacy, not the judge’s access to the docket.

Complex Concepts Simplified

Presentence Investigation Report (PSR)
A report prepared by probation to help the judge sentence. It includes offense details, guideline calculations, and background information. If something is not in the PSR or otherwise disclosed, the defense may have no fair chance to contest it.
Ex parte communication
A one-sided communication with the judge outside the presence of the other party. Judges may speak ex parte with probation in some circumstances, but not to receive and rely on new, important sentencing facts without disclosure.
“New and significant/material” information
“New” means not already in the court record; “significant/material” means capable of affecting the sentencing decision. If both are true, the defense must be told and given a chance to respond before the information is used.
Mandate rule
After an appeal, the district court must follow the appellate court’s instructions and not revisit issues already decided. But if the appellate decision did not actually forbid a particular action, it is difficult—especially under plain-error review—to claim a mandate violation.
Plain error vs. abuse of discretion
Plain error is a demanding standard applied when an issue was not properly raised below; abuse of discretion is less deferential and applies when the objection was preserved.
18 U.S.C. § 3553(a)
The statutory factors guiding federal sentences, including the seriousness of the offense, deterrence, protection of the public, and rehabilitation. The court here treated recidivism and rehabilitation as central § 3553(a) considerations—making undisclosed facts used for those purposes material.
Specific performance of a plea agreement
A remedy for breach requiring the government to do what it promised (e.g., recommend a particular guideline range). It does not bind the judge to accept the recommendation.

Conclusion

United States v. Maldonado-Maldonado clarifies and strengthens a due-process-adjacent procedural rule in First Circuit sentencing: while probation may communicate ex parte, a sentencing judge may not rely on undisclosed, new, and material facts—such as recent prison disciplinary violations—to determine a sentence. When that happens, the error is reversible, and the appropriate remedy is resentencing, typically with reassignment to a different judge. At the same time, the decision narrows attempts to convert a plea-breach remand into a broader evidentiary quarantine of the case record; the “clean slate” is primarily the government’s renewed compliance with its plea promises before a new sentencer.