United States v. Santiago

In United States v. Santiago, —- F.4th —-, No. 23-30149 (5th Cir. Mar. 21, 2024), the Fifth Circuit vacated the defendant’s four convictions and remanded for resentencing because the district court had erred in applying a murder cross-reference without evaluating the defendant’s claim of self-defense.

In the district court, Santiago pled guilty to four crimes related to drug trafficking and use of firearms, but his PSR calculated a Guidelines range based on a cross reference to USSG § 2A2.1, which applies to first-degree murder. The PSR did so after concluding that Santiago had committed attempted first-degree murder of six people who attempted to rob him at gunpoint. The attempted robbery had resulted in a gunfight, during which three people were shot. As it turned out, Santiago and others had been selling marijuana, and the robbers had planned to steal from them at gunpoint.

After Santiago received his PSR, he retained new counsel and moved to withdraw his plea. He argued that he had been unaware that his Guidelines would be increased based on unindicted crimes, and he objected to the attempted-murder enhancement. He also argued that even if the attempted-murder Guideline applied, he had acted in self-defense. The district court denied Santiago’s motion to withdraw, but it granted some of his objections to the PSR. Nevertheless, the court imposed a sentence that was six years higher than the Guideline range because of the “shocking and disturbing” nature of the crimes.

On appeal, Santiago raised what the Fifth Circuit called a “flock of challenges.”

Ruling 1: The district court did not violate Federal Rule of Criminal Procedure 11 when it accepted his guilty plea. That rule requires many things, including that the court must inform the defendant of the nature of each charge to which he is pleading guilty. The Fifth Circuit held that the court had satisfied that standard by describing each count “in plain English” before Santiago pled guilty, laying “out the basic facts underlying that count,” and “explain[ing] the maximum sentences each count carried.”

Ruling 2: There was a sufficient factual basis to support Santiago’s guilty pleas to “Us[ing], Carry[ing], Brandish[ing] and Discharg[ing] of Firearms in Furtherance of a Drug Trafficking Crime” in violation of 18 U.S.C. § 924(c), and “Maintaining a Drug Involved Premises” in violation of 21 U.S.C. § 856. As for the former, when he pled guilty, Santiago admitted that “[d]uring the attempted robbery, the seven occupants of Room 1514 immediately returned gunfire” and that he was one of those occupants. For the latter, Santiago may not have “maintained” the hotel rooms from which he had been selling marijuana, but during his guilty plea he admitted that he “used” those rooms, which also violates § 856.

Ruling 3: The district court sufficiently explained its Guidelines calculations, at least to satisfy the plain-error standard. The Fifth Circuit agreed “that the court could have explained its process more clearly,” but it had at least adopted the PSR and its addendum, considered its Guideline calculations, and explaining its upward variance. It was not “clear or obvious” that was insufficient, but regardless, Santiago failed to show how “that limited discussion would seriously affect the fairness, integrity, or public reputation of judicial proceedings.”

Ruling 4: The district court erred by applying the USSG § 2K2.1 (unlawful possession of a firearm) cross-reference to USSG § 2A2.1 (first-degree murder). Self-defense is an affirmative defense to murder. “The initial burden of production rests on the defendant asserting self-defense, but once the defendant has met that burden, the government must then provide proof to ‘negate’ it.” Here, Santiago met his burden of production, “but the district court never sought, and the government never attempted to provide, proof to rebut his self-defense claim.” Therefore, the district court committed clear error by cross-referencing attempted murder without considering self-defense.

In a footnote, the Fifth Circuit clarified that it was not “suggest[ing] that every time a defendant asserts self-defense as an objection to a sentence, the district court must hold an evidentiary hearing before ruling on it,” but “the record must, in some way, support the court’s declination of that defense if the defendant raises it.” This record did not.

Concurrence: Judge Higginson concurred, noting that “[i]nconsistencies and failures to explain at sentencing are particularly troubling in this context, where a defendant is sentenced for conduct that is uncharged and unadjudicated.” Of note, Santiago had asked to withdraw his plea after learning that his sentence could be based on uncharged, unadjudicated conduct, yet the district court did not “take, test, and resolve evidence, even to a preponderance standard of proof, to confirm that conduct.”