In United States v. Cotto-Negro the First Circuit vacated and remanded for resentencing a procedurally unreasonable sentence in a Hobbs Act robbery.
The Court found the district court clearly erred in applying an enhancement (bodily injury sustained by victim (USSG § 2B3.1(b)(3)(A)) to Mr. Cotto-Negron’s Guidelines, which was not applied to his two co-defendants. At sentencing the court justified the enhancement’s application on the basis Mr. Cotto-Negron’s role in the robbery was factually distinct from his co-defendants’s. The First Circuit, however, found no record evidence to support the district court’s conclusion. The plea agreements for all three defendants and two of the PSRs (the third PSR was not made a part of the appellate record) reported the exact same facts about the robbery and depicted identical roles for each defendant. Thus, the district court clearly erred in ascribing a different level of culpability to Mr. Cotto-Negron based on his role in the offense.
Additionally, the First Circuit rejected the government’s attempts to analogize Mr. Cotto-Negron’s argument with United States v. Kneeland. In Kneeland, the defendant argued it was error for the district court to apply a role enhancement when his equally culpable co-defendant did not receive the enhancement. In particular, the government highlighted language in Kneeland that even if the court were to assume the roles were commensurate with one another, this, without more, would not justify reversing the sentence. The First Circuit distinguished between an argument that the enhancement is not factually supported and an argument that it was procedurally unreasonable to apply the enhancement. The court put aside the issue of whether the court could apply the enhancement to Mr.Cotto-Negron despite deciding not to apply the enhancement to the co-defendants, because the district court may not justify the disparate enhancement applications based upon clearly erroneous facts.