United States v. Rosa-Borges: No Upward Variance Based on 31 Rounds or Extra-Record Ammunition Claims

Introduction

In United States v. Rosa-Borges, the First Circuit addressed two sentencing appeals arising from the same defendant, Reynaldo Rosa-Borges. Rosa challenged both a sentence for a new conviction under 18 U.S.C. § 922(g)(1), felon-in-possession of a firearm, and a separate revocation sentence for violating supervised release tied to an earlier firearm conviction.

This was the second time the case reached the First Circuit. In United States v. Rosa-Borges (Rosa I), the court had already vacated prior sentences because the district court relied on unreliable hearsay connecting Rosa to 100 rounds of ammunition found during a search. On remand, the district court again imposed an above-Guidelines sentence on the § 922(g)(1) conviction, relying in part on Rosa’s possession of 31 rounds of ammunition and characterizing that ammunition as associated with “firearms of war.”

The key issue was whether the district court permissibly justified its upward variance. The First Circuit held that it did not: 31 rounds of ammunition was not, under circuit precedent, a “high amount” sufficient to remove the case from the ordinary range, and the “firearms of war” characterization lacked record support.

Summary of the Opinion

  • The First Circuit vacated Rosa’s 60-month sentence for the § 922(g)(1) conviction and remanded for resentencing before a different judge.
  • The court held that the district court committed procedural error by relying on a legally invalid sentencing rationale: treating 31 rounds of ammunition as a “high amount” and relying on unsupported statements about the type of ammunition.
  • The court rejected Rosa’s argument that the district court violated the mandate in Rosa I merely by keeping paragraph 13 in the PSR, because Rosa I prohibited reliance on unreliable hearsay but did not require deletion of the paragraph.
  • The court did not decide Rosa’s plea-agreement breach claim because it had already granted the remedy he sought: resentencing before a different judge.
  • The First Circuit affirmed the revocation sentence because Rosa waived his appellate challenges by failing to preserve them properly and failing to argue plain error on appeal.

Analysis

Precedents Cited

The opinion relies heavily on First Circuit sentencing precedent, especially concerning mandate compliance, upward variances, record-based sentencing, harmless error, and waiver.

Prior Appeal and Mandate Rule

  • United States v. Rosa-Borges (Rosa I): This was the central prior decision. It held that Rosa’s brother’s statement attributing 100 rounds of ammunition to Rosa was unreliable hearsay and could not support sentencing. In the present opinion, the court clarified that Rosa I barred reliance on that statement but did not require the district court to delete the relevant PSR paragraph.
  • United States v. Cheveres-Morales, United States v. Dávila-Félix, United States v. Genao-Sánchez, and United States v. Connell: These cases framed the mandate rule. The district court must follow both the “letter” and “spirit” of the appellate mandate. Applying those cases, the First Circuit found no mandate violation from retaining paragraph 13, so long as the district court did not rely on the unreliable hearsay.
  • United States v. Matthews: Cited for the proposition that law-of-the-case and mandate-rule questions are reviewed de novo.
  • United States v. Acevedo-Osorio: Supported the proposition that a district court need not agree with every statement in the PSR, reinforcing that the PSR’s contents and the sentencing court’s reliance are separate issues.

Standards of Review and Sentencing Framework

  • United States v. Aponte-Colón, United States v. Sierra-Jiménez, and United States v. Carrasquillo-Vilches: These cases supplied the abuse-of-discretion framework, with factual findings reviewed for clear error and legal questions reviewed de novo.
  • United States v. Morales-Ortiz, United States v. Cheveres-Morales, and United States v. Duarte: These cases set out plain-error review for unpreserved claims.
  • United States v. Colón-Cordero: Cited for the two-step sentencing review process: first procedural reasonableness, then substantive reasonableness if necessary.

Reliance on Sentencing Facts

  • United States v. López-Felicie and United States v. Santiago-Rivera: These cases supported giving significant weight to a district court’s statement that it considered only permissible material. The First Circuit relied on them to reject Rosa’s claim that the court secretly relied again on the discredited 100 rounds.
  • United States v. Rivera-Ruiz: Rosa invoked this case to argue that the district court’s references showed impermissible reliance, but the First Circuit found the record here did not support that conclusion.

Upward Variance and Ammunition Quantity

  • United States v. Rivera-Berríos: This was decisive. It held that 36 rounds of ammunition was not a large cache and was consistent with simple possession. Because Rosa possessed 31 rounds, the district court’s “high amount” rationale was inconsistent with circuit precedent.
  • United States v. Morales-Vélez and United States v. Rivera-Santiago: These cases recognize that a large amount of ammunition can justify an upward variance when it exceeds ordinary possession. But they also show that the aggravating value of ammunition depends on record evidence and quantity.
  • United States v. Cotto-Negrón: Supported the finding of clear error because there was no record basis for the district court’s claim about NATO-type ammunition or “firearms of war.”

Harmless Error and Reassignment

  • Williams v. United States and United States v. Tavares: These cases governed harmless-error analysis for sentencing errors. The government had to show the error did not affect the sentence.
  • United States v. Diaz: The court used this case to ask whether the same sentence was inevitable based solely on valid rationales. It was not.
  • United States v. Ramos-Carreras and United States v. Craven: These cases supported remanding to a different judge where sentencing rested on extra-record or untested information.

Plea Agreement and Revocation Waiver

  • United States v. Kurkculer and United States v. Clark: These cases concern remedies for plea-agreement breaches. The court did not decide breach because Rosa already received the requested remedy.
  • United States v. Colón-Maldonado: Explained that the Guidelines classify supervised-release violations by grade.
  • United States v. Alejandro-Rosado, United States v. Cordero-Velázquez, United States v. Mercado-Cañizares, United States v. Muñoz-Gonzalez, and United States v. Zannino: These cases controlled preservation and waiver. Rosa’s revocation arguments were waived because they were not sufficiently preserved and were not properly developed under plain-error review.

Legal Reasoning

The court’s reasoning turned on the distinction between permissible and impermissible sentencing rationales. A district court may vary upward from the Guidelines if it identifies a case-specific factor that takes the case outside the “mine-run” of ordinary cases. But that factor must be legally valid, supported by the record, and sufficiently individualized.

The district court identified three reasons for the upward variance: Puerto Rico’s firearm crime conditions, the ammunition quantity and type, and Rosa’s prior firearm offense. The First Circuit focused on the second rationale. Under United States v. Rivera-Berríos, 31 rounds could not be treated as an unusually large quantity. And the court’s statement that the ammunition was used by NATO countries for “firearms of war” had no evidentiary support in the record.

Because the sentencing judge stated that the sentence was based on “all those facts,” the appellate court could not conclude that the error was harmless. It therefore vacated the § 922(g)(1) sentence and ordered resentencing before a different judge.

Impact

The opinion reinforces several important sentencing limits in the First Circuit:

  • Ammunition quantity must be genuinely aggravating. Possession of 31 rounds, standing alone, is not enough to justify an upward variance as a “high amount.”
  • Extra-record factual claims are dangerous at sentencing. A court may not rely on unsupported assertions about the military nature, lethality, or special character of ammunition.
  • Unreliable hearsay cannot be used at sentencing. The court emphasized that such information cannot be used “full stop,” rejecting the government’s suggestion that it simply could not be the sole basis for the sentence.
  • Appellate preservation matters. Rosa lost his revocation challenge not on the merits, but because the arguments were not properly preserved or developed.

Future sentencing courts in the First Circuit will need to be especially careful when justifying upward variances in firearms cases. General references to local crime conditions, ammunition type, or dangerousness must be tied to record evidence and individualized facts.

Complex Concepts Simplified

Upward variance
A sentence above the advisory Guidelines range. It is allowed, but the judge must explain why the case is unusually serious or different from ordinary cases.
Mine-run case
An ordinary or typical case covered by the Guidelines. To vary upward, a court must identify something that makes the case meaningfully different.
Mandate rule
After an appellate court remands a case, the district court must follow the appellate court’s instructions.
Procedural reasonableness
Whether the sentencing process was legally sound: correct Guidelines calculation, proper evidence, adequate explanation, and no reliance on improper factors.
Harmless error
An error that does not require reversal because it did not affect the outcome. Here, the error was not harmless because the invalid ammunition rationale may have influenced the sentence.
Waiver on appeal
Losing an argument because it was not properly raised, preserved, or developed. Rosa’s revocation challenges failed for this reason.

Conclusion

United States v. Rosa-Borges is a significant First Circuit sentencing decision in firearms cases. It confirms that an upward variance cannot rest on ordinary ammunition possession or unsupported claims about ammunition’s military character. It also underscores that unreliable sentencing information may not be used at all.

The § 922(g)(1) sentence was vacated and remanded to a different judge, while the revocation sentence was affirmed due to waiver. The broader lesson is clear: sentencing judges must ground variances in reliable, record-supported, individualized facts.