In March of 2015, Neftali Avarez-Nunez (“Nunez”) was arrested in Catano, Puerto Rico. The arrest came after the police observed Nunez discarding a weapon outside a bar. The police retrieved and examined the handgun. It was loaded, fitted with an extended magazine, and had been modified to fire as an automatic weapon.


In a July 8, 2016 decision, the First Circuit Court of Appeals stated that a “subsequent search revealed two other items of interest: the defendant was in possession of a large quantity of ammunition and a half-dozen Percocet tablets, for which he lacked a prescription. The defendant later told investigators that, in addition to being a regular marijuana user, he had been addicted to Percocet, a controlled substance, for roughly two years.”


Possession of Firearm and Machine Gun


Nunez was indicted in federal district court on two counts: first, possession of a firearm and ammunition by an unlawful user of a controlled substance; and, second, possession of a machine gun.


He pled guilty to both counts.


As required in the federal sentencing scheme, the local U.S. Probation Department conducted a presentence investigation and delivered its report (“PSI”) to the court and opposing counsels.


In all PSIs, there is a section that discusses the details and circumstances of the “offense conduct” for which a defendant is charged.


Pacho y Cirilo


Under this “offense conduct” section of Nunez’s PSI, the investigating probation officer stated that Nunez was a member of the musical group Pacho y Cirilo and performed under the stage name “Pacho.”


This musical group was, the PSI concluded, “fairly known” in the Juana Mates Public Housing Project ((JMPHP)—the area in which Nunez was arrested. The report further informed the court that the “majority of the songs recorded by Pacho y Cirilo promote violence, drugs and the use of weapons and violence” and in “recent years, the JMPHP has been known to be associated with murders, drug sales and smuggling and weapons trafficking.”


Plead Guilty and Received Acceptance of Responsibility


The PSI stated that Nunez did not have a criminal history and that he had earned a three-level downward adjustment because he had “fully accepted responsibility” for his offenses.


PSI Cites Defendant’s Musical Stylings as Reason for Increased Sentence


The PSI informed the court that the U.S. Sentencing Guidelines range (“GSR”) advised that a sentence of 24 to 30 months be imposed. Not content to let the guidelines speak for themselves, the PSI formed its own unsubstantiated opinion about how sentencing should go. The First Circuit described these opinions:


“The PSI Report also suggested a possible reason for imposing a sentence above the GSR: returning to the defendant’s musical stylings, the Report rehashed his involvement in Pacho y Cirilo and the group’s connection to JMPHP.  In a similar vein, it reiterated the claim that the group’s songs ‘promote violence, drugs and the use of weapons and violence, as … can be seen through their videos which are readily available on the internet.’ The Report included certified translations of two songs by Pacho y Cirilo, as well as certified transcription of a music video (‘La Calle Es Pa Hombres’).”


Probation Officers Piling it On


We pointed out last year that probation officers who conduct PSIs “should stick strictly to the facts and leave legal conclusions to the attorneys and the court.” We also pointed out last year that controversial musical groups, like the Insane Crown Posse and the Psycho y Cirilo, enjoy First Amendment protections free of interference by law enforcement and the courts.


Defense Attorney Objects Based on Protected 1st Amendment Activity


Nunez’s attorney correctly objected to the PSI, telling the court that any consideration of his client’s involvement with Pacho y Cirilo would infringe upon his First Amendment rights.


As for the prosecution, the First Circuit noted that “the government doubled down, not only resisting the defendant’s objection but also  [by] introducing at sentencing excerpts from yet another Pacho y Cirilo music video (for the song ‘Como Grits El Palo’).”


As for the sentencing court, the presiding judge watched the video and commented afterwards about its inclusion of “rifles and grenade launchers.”


Federal Judge Not Fan of Pacho y Cirilo


Based on the video and the PSI conclusions, the sentencing court said it “could consider the defendant’s musical pursuits in crafting a sentence.”


The sentence crafted by the court was a 96-month term of imprisonment—more than three times what the sentencing guidelines recommended for Nunez’s offenses.


First Amendment Protected Conduct


The First Circuit strongly disagreed with the sentencing court.


The Supreme Court has held that while certain First Amendment “beliefs and associations” can be considered at sentencing, “a defendant’s abstract beliefs, however obnoxious to most people, may not be taken into consideration by a sentencing judge.”


Use of Protected Speech Conduct as Factor Must Be Relevant to Issues of Sentencing


Relying on this Supreme Court instruction, the First Circuit found that the “upshot is that conduct protected by the First Amendment may be considered in imposing sentence only to the extent that it is relevant to the issues in a sentencing proceeding. Given the kaleidoscopic array of factors ordinarily in play at sentencing, protected conduct may be relevant in a multiplicity of ways. For instance, it may legitimately be used to rebut mitigating evidence proffered by the defendant. So, too, it may be used to evaluate the degree of the defendant’s remorse, the likelihood of reoffending, or the extent of punishment needed for deterrence. But any such connection must be established, not merely assumed, in the context of the particular case. Where protected conduct has no bearing on either the crime committed or on any of the relevant sentencing factors, consideration of that conduct infringes on a defendant’s First Amendment rights.”


Sentence Cannot be Influenced by Offensive Protected Activity Alone


The appeals court soundly rejected the Government’s argument and the sentencing court’s rationale that while the defendant’s sentence could not be influenced simply because he was a musician, the lyrics of his music and the unlawful conduct they endorsed were relevant sentencing factors. The court explained its reasoning for rejecting this rationale:


“This gets the grease from the goose. Given the sentencing court’s heavy reliance on protected conduct that was not tried through extrinsic evidence to any relevant sentencing factors, its sentencing rationale is implausible. This lack of plausibility is especially stark where – as in this case – the sentencing court undertook a sharp upward variance [in sentencing] and. thus, assumed an obligation to provide a rationale ‘sufficiently compelling to support the degree of the variance.’ Taking the lyrics and music videos as ‘objective evidence’ of factors relevant to sentencing, without an iota of corroborating evidence, results in a sentencing rationale wholly unsupported by the record. Like a house built upon a porous foundation, a sentence built upon a rationale that is unsupported by the record, cannot stand.”


This is yet another example of a probation officer injecting irrelevant information into a PSI in order to influence sentencing outside the recommended guidelines. While this information suited the fancy of the Government, and even the sentencing court, it was abundantly clear that the songs performed by Nunez and Pacho y Cirilo had no relevance to the offenses for which he was convicted.


It may be assumed that gun and ammunition possession are connected to protected beliefs expressed in musical lyrics, but a federal sentence cannot be grounded in “assumptions.” There must be, as the appeals court said, “extrinsic evidence” to advance from irrelevant assumptions to relevant facts.