“Explain or Err”: The First Circuit’s Strict Duty to Justify Non-Guidelines Sentences
Commentary on United States v. Rodríguez-Bermúdez, No. 23-1259 (1st Cir. July 25, 2025)

Introduction

United States v. Rodríguez-Bermúdez is a powerful reminder that federal sentencing remains a highly structured process. Although judges possess broad discretion after Booker, that discretion is bounded by the twin duties to calculate the Sentencing Guidelines correctly and, if the court elects to depart or vary, to give a fulsome, reviewable explanation. In this appeal from the District of Puerto Rico, the First Circuit vacated a 46-month prison term because the sentencing judge—while expressly declining to pick between two competing Guidelines ranges—relied on those very ranges to select the sentence and failed to articulate how the statutory factors of 18 U.S.C. § 3553(a) independently supported the chosen term.

The decision sets a sharp precedent: when a district court forgoes a definitive Guidelines calculation and imposes a non-Guidelines sentence, it must convincingly demonstrate that the sentence is genuinely independent of the Guidelines and firmly anchored in the § 3553(a) factors. A mere assertion that “the sentence would be the same no matter the range” is insufficient.

Summary of the Judgment

• Parties: Nashalie Samary Rodríguez-Bermúdez (appellant); United States (appellee).
• Charges: Possession with intent to distribute ≥5 kg of cocaine (21 U.S.C. § 841(a)(1)); conspiracy (21 U.S.C. § 846).
• District court disposition: 46 months’ imprisonment + 5 years’ supervised release. The court acknowledged two possible Guidelines ranges (37-46 mos. if “minimal participant,” 57-71 mos. otherwise) but “declined to decide” which applied, saying the sentence would be the same either way.
• Main appellate claim: Procedural error—failure to determine the applicable range and failure to explain the non-Guidelines sentence.
• Holding: Sentence vacated; remanded for resentencing. The panel (Thompson, J.) found a “significant procedural error” because the district court relied on the Guidelines it professed to ignore and offered no independent § 3553(a) justification.
• Relief: Case returned to the same district judge for a new sentencing proceeding consistent with the opinion.

Analysis

1. Precedents Cited and Their Influence

The panel knitted a tight web of authority:

• Gall v. United States, 552 U.S. 38 (2007) – identified inadequate explanation as “significant procedural error”.
• Rita v. United States, 551 U.S. 338 (2007) – discussed the “anchoring” function of correctly calculated Guidelines and the need for explanation when departing.
• United States v. Ortiz-Álvarez, 921 F.3d 313 (1st Cir. 2019) – permitted courts to forgo a final range only if they show the § 3553(a) factors “compel the sentence regardless of the range.”
• United States v. Taylor, 848 F.3d 476 (1st Cir. 2017) – reversal where court said sentence was “independent” of the Guidelines but record showed otherwise.
• United States v. Montero-Montero, 817 F.3d 35 (1st Cir. 2016); United States v. Meléndez-Hiraldo, 82 F.4th 48 (1st Cir. 2023) – stressed need for robust rationales, especially as deviation grows.
• United States v. Maldonado-Negroni, 141 F.4th 333 (1st Cir. 2025) – “I’d give the same sentence anyway” is not enough to cure error.

The panel leaned most heavily on Ortiz-Álvarez and Taylor, emphasizing that a court cannot simply refuse to pick a range and slap on a sentence extracted from the disputed ranges themselves.

2. Legal Reasoning of the Court

1. Two Possible Ranges. The PSR (probation) and defense urged a 4-level “minimal participant” reduction, yielding 37-46 months. The government objected, offering 57-71 months. The district court performed the math for both but refused to choose.
2. Purported Non-Guidelines Sentence. The judge announced a 46-month term, stating, “the high end of the guideline range, if she were a minimal participant, is 46 months.” Then added that the same sentence would apply even if the higher range controlled.
3. Failure to Untether from Guidelines. The appellate panel concluded the stated rationale did not free the sentence from the Guidelines because it explicitly relied on the 37-46-month range and made no showing that § 3553(a) factors independently justified 46 months (e.g., no analysis of deterrence, incapacitation, rehabilitation).
4. Inadequate Harmless-Error Assurance. A bare statement that “the result would be the same” cannot satisfy the government’s burden to show harmlessness. Without a detailed § 3553(a) explanation, the appellate court cannot discern whether the wrong range might have affected the sentence.
5. Result. Because the explanation deficiency “frustrated meaningful appellate review,” the sentence had to be vacated.

3. Impact on Future Sentencings

• District Courts: Must either (a) decide the Guidelines range (resolving disputes like “minimal participant”), or (b) if they decline, provide a robust, demonstrable § 3553(a) rationale that is wholly independent of any unresolved range.
• Harmless Error Doctrine: The opinion tightens the standard; conclusory “same result” statements will not carry the day without a clear, reasoned record.
• Defense Strategy: Raises a potent procedural hook—failure to explain—to challenge sentences that appear to be “compromises” between contested ranges.
• Government Considerations: On appeal the burden of showing harmlessness is heavy; prosecutors should encourage district courts to articulate detailed reasons to safeguard a sentence.
• Guidelines Litigation: Reinforces the importance of litigating adjustments (e.g., minimal participant) because the appellate court may vacate if the dispute is left unresolved yet influences the sentence.

Complex Concepts Simplified

• Sentencing Guidelines (“Guidelines”): Advisory numerical framework created by the U.S. Sentencing Commission. A “total offense level” cross-referenced with a “criminal history category” yields a range in months.
• Minimal Participant Adjustment (U.S.S.G. § 3B1.2(a)): A 4-level reduction for defendants “substantially less culpable than the average participant.” Often litigated in courier cases.
• Safety Valve (18 U.S.C. § 3553(f); U.S.S.G. § 5C1.2): Lets certain non-violent, low-level drug offenders avoid statutory minima and cuts 2 offense levels if criteria are met.
• Procedural vs. Substantive Reasonableness: “Procedural” looks at the method—calculations, explanations, consideration of factors. “Substantive” examines if the sentence is too harsh or too lenient given the record.
• Harmless Error: Even if the judge errs, the appellate court will affirm if convinced the same sentence would have been imposed and is reasonable. Rodríguez-Bermúdez tightens that escape hatch.
• Non-Guidelines or “Variant” Sentence: Any sentence outside the correctly calculated Guidelines range (above or below) based on § 3553(a) factors.

Conclusion

United States v. Rodríguez-Bermúdez reconfirms that sentencing explanations are more than formalities—they are constitutional safeguards enabling appellate review and public confidence. When a district court decides not to resolve Guidelines disputes yet draws upon the disputed ranges to select a sentence, it must spell out—clearly and specifically—how each § 3553(a) factor justifies the term independent of those ranges. Otherwise, the sentence stands on procedurally shaky ground and will not survive appeal. Practitioners should heed the First Circuit’s admonition: “Explain or err.”