United States of America v. Jose Soto

PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
_____________
No. 23-1827
_____________
UNITED STATES OF AMERICA
v.
JOSE SOTO,
Appellant
_______________
On Appeal from the United States District Court
for the District of New Jersey
(District Court No. 2-20-cr-00903-002)
District Judge: Honorable William J. Martini
_____________
Submitted Pursuant to Third Circuit LAR 34.1(a)
March 28, 2024
Before: RESTREPO, MATEY, and McKEE,
Circuit Judges
(Filed: November 20, 2024)
_______________

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Kevin A. Buchan
Buchan Palo & Cardamone
750 Broad Street
Suite 202
Shrewsbury, NJ 07702
Counsel for Appellant
Mark E. Coyne
Richard J. Ramsay
Office of United States Attorney
970 Broad Street
Room 700
Newark, NJ 07102
Counsel for Appellee
_____________
OPINION
_____________
McKEE, Circuit Judge
A jury convicted Jose Soto of one count of conspiracy
to commit bank robbery, in violation of 18 U.S.C. § 371, two
counts of bank robbery, in violation of 18 U.S.C. § 2113(a),
and two counts of using and carrying a firearm during and in
relation to a crime of violence, in violation of 18 U.S.C. §
924(c)(1)(A)(ii) and 18 U.S.C. § 2. At sentencing, the
District Court set his offense level at 29 and ultimately
sentenced him at the high-end of his Guidelines range: 289
months in federal prison (including two mandatory and
consecutive seven-year terms). Soto’s offense level

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determination incorporated a two-level enhancement for
obstruction of justice pursuant to United States Sentencing
Guideline (“USSG”) §3C1.1. The District Court imposed this
enhancement based on allegations that Soto improperly: (1)
stepped onto an elevator full of jurors and asked one of them
to press the first floor button; (2) interacted with a testifying
witness’s brother on the weekend of trial; and (3) greeted
victims as they entered the courthouse. Because the record
inadequately supports this enhancement’s application, we will
vacate and remand for a new sentencing.
I. Background
Law enforcement arrested Jose Soto and Nicholas
Ortiz in connection with an armed robbery of PNC Bank in
Passaic, New Jersey, on February 6, 2020, and an armed
robbery of the Valley National Bank, in Little Falls, New
Jersey, on February 27, 2020.
A jury trial ensued. After jury selection, an occasion
arose wherein Soto got on an elevator with fourteen jurors for
his trial.1 When he first stepped onto the elevator, he asked
one of the jurors to press the button for the “[f]irst floor.”
Two jurors reported the interaction to a court security officer
(“CSO”). The Judge responded by reprimanding Soto. The
Judge told him that, “[h]is conduct is just inexplicable,”2 and
that “it’s pretty self-evident that a defendant in a case knows
1 There is nothing in the record that indicates whether the
jurors were wearing juror badges at the time, but the District
Court assumed that they were.
2Appx 193.

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he’s not to interact in any way with the jury.”3 Soto’s counsel
did not deny that the interaction occurred, but noted that the
Judge had not previously instructed Soto to avoid any
interaction whatsoever with the jurors, and that Soto did not
purposefully ignore any of the Court’s instructions. The
Judge responded by focusing on the consequences of Soto’s
conduct—not his intention. He said:
I’ve had situations in [which] a defendant is
walking down a hall, a juror is walking down
the hall, the defendant smiles at the juror, says
good morning, which is inappropriate too.
Those don’t seem to be a big issue. Okay? The
fact that at least two jurors reported [the
elevator interaction] and took the time to come
up, see [the CSO] . . . is something we have to
address right now.4
The Judge then interviewed each juror about the incident; one
juror (Juror #2) stated that he could not be objective in
weighing the evidence against Soto because of the interaction
and was excused.
The prosecutors also alleged that—the morning
following the elevator interaction, but before Soto was
3 Id.
4 Appx 193.

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reprimanded by the Court—Soto “approached” the victims
scheduled to testify on the steps of the courthouse, to “greet
them.”5 He allegedly did so while neglecting to acknowledge
any of the FBI agents accompanying the victims. The
government averred that it did not see “any indication of a
threat or anything like that ….”6 None of the victims testified
about this interaction. In response to the government’s
allegation, Soto’s counsel offered his version of the facts: “I
was there, he was waiting for me on the courthouse steps. The
word ‘approach,’ I don’t think he approached anybody.
People walked in and he may have said ‘Good morning.’
Now that’s the extent of what I think happened this
morning.”7
Finally, over the weekend—after trial started, but
before co-defendant Ortiz testified—Soto attended, with
government permission, a family event in his neighborhood.
The government reported that Soto approached one of Ortiz’s
brothers on the street and asked him whether he was Ortiz’s
brother. The brother allegedly did not reply and kept
walking. The government then explained that Ortiz’s mother
lives “very, very close to the defendant and that [Ortiz’s]
brother was visiting the mother and so was in the area of the
defendant’s residence at that time.”8 Additionally, the
government stated that the defendant and Ortiz are “distant
relatives,” so it is possible Ortiz’s brother and Soto knew each
other.9
5 Appx 190.
6 Appx 190.
7 Appx 192.
8 Appx 407.
9 Id.

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The prosecutor represented that FBI agents had
interviewed Ortiz’s brother and “confirmed th[e] story” and
that the agents were looking into whether they could find
surveillance footage to further corroborate it.10 When later
asked whether the government was prepared to bring Ortiz’s
brother in to testify, the government said that he lived in
South Jersey, so it would be difficult to get him to court, but
they could possibly have him appear remotely. The Judge
suggested that the prosecutor offer the agent’s report and said,
“[t]hen we’ll go from there.”11 The prosecutor agreed. The
prosecutor later represented that there existed video evidence
of the two passing each other in the street, but neither the
government’s notes, nor the surveillance footage are part of
the record before us, and the Judge made no factual findings
related to this interaction.
When deciding to apply the enhancement for
obstruction of justice at Soto’s sentencing hearing, the Judge
explained that §3C1.1 was “very applicable” to the elevator
incident. 12 The Judge then acknowledged that the additional
“two things” (greeting victims and interacting with Ortiz’s
brother) “in their own right probably wouldn’t result in an
enhancement, but when [combined] with, clearly, getting on
an elevator during the course of the trial, not only could have,
but did in fact impede and affect at least one juror and caused
this Court to have to do a lengthy voir dire of the jurors
because of his conduct getting on the elevator. That was not a
mistake.”13
10 Appx 612.
11 Id.
12 Appx 988–98.
13 Appx 989.

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II. Analysis
On appeal, Soto argues that the District Court made
several errors. The only argument that has merit is Soto’s
claim that the District Court erroneously applied an
enhancement for obstruction under USSG §3C1.1.14
A. Applicable Law
As we have previously recognized, individuals are
entitled to due process at their sentencing hearings:
Prosecutors, of course, may not introduce any
and all hearsay testimony at a sentencing
proceeding. The admission of hearsay
statements in the sentencing context is subject
to the requirements of the Due Process Clause.
Under the precedent of this Court, hearsay
14 Soto also claims the Judge abused his discretion by: (1)
allowing the government to admit photographs from Soto’s
phone that depict stacks of cash and cash strewn about his
home; (2) allowing Agent Barile to testify as a lay witness;
(3) not permitting Soto to try on a piece of evidence (a glove);
and (4) the manner in which he handled the jury’s note
indicating that there was a deadlock. He also alleges that (5)
the Judge failed to consider COVID-19 jail conditions under
18 U.S.C. § 3553(a). For the reasons the District Court
explained, all these claims fail.

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statements must have some “minimal indicium
of reliability beyond mere allegation.15
We review the factual findings underlying an
obstruction of justice enhancement under §3C1.1 for clear
error.16 Clear error exists only if the district court’s ruling
was “completely devoid of a credible evidentiary basis or
bears no rational relationship to the supporting data.”17 If the
factual findings are adequately supported, then “we review
the District Court’s application of the Guidelines to the facts
for abuse of discretion.”18
The standard of proof for determining willful
obstruction of justice is by a “preponderance of evidence.”19
The government has the burden of proving that it is “more
likely than not” that the accused willfully obstructed
justice.20 Notably, there must be evidence in the record
15 United States v. Robinson, 482 F.3d 244, 246 (3d Cir.
2007) (quoting United States v. Kikumura, 918 F.2d 1084,
1102 (3d Cir. 1990)); see also USSG §6A1.3(a).
16 United States v. Gray, 942 F.3d 627, 633 (3d Cir. 2019).
This Court has jurisdiction to review the judgment under 18
U.S.C. § 3742(a)(2) and 28 U.S.C. § 1291.
17 United States v. Vitillo, 490 F.3d 314, 330 (3d Cir. 2007)
(quoting United States v. Haut, 107 F.3d 213, 218 (3d Cir.
1997)).
18 United States v. Kluger, 722 F.3d 549, 555 (3d Cir. 2013).
19 United States v. Kim, 27 F.3d 947, 960 (3d Cir. 1994).
20 See, e.g., United States v. Belletiere, 971 F.2d 961, 966 (3d
Cir. 1992) (finding that the prosecution failed to meet its
burden because it failed to introduce any evidence that could
have made it more likely than not that Belletiere “willfully”
attempted to obstruct justice).

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supporting the District Court’s findings.21 Although the
record need not contain direct evidence of the conduct, other
evidence must be present in the record to support an inference
that the individual willfully obstructed justice.22
B. The Factual Findings Do Not Support Soto’s
Enhancement
Here, the factual findings required to support this
enhancement are completely absent from the record. First,
the District Court did not explicitly adopt the findings of the
presentence report (“PSR”), which incorporated all three
allegations of obstruction. But even if it had, after weighing
the government’s evidence, courts “may accept any
undisputed portion of the presentence report as a finding of
fact.”23 Instead, Soto objected and provided “detailed
reasons” why the “findings were unreliable.”24 The PSR
itself made that clear with respect to the family incident. A
footnote specified that “[d]efense counsel objected to this
claim and stated there was no evidence of any interaction
21 See United States v. Douglas, 849 F.3d 40, 50–51 (3d Cir.
2017), rev’d en banc on other grounds, 885 F.3d 124 (3d Cir.
2018) (finding that the district court inappropriately applied
an obstruction of justice enhancement when it relied on
factual findings not supported in the record regarding
Douglas’s “willfulness”).
22 Kim, 27 F.3d at 960–61 (reasoning that even though the
record did not contain direct evidence of Kim’s false
cooperation and misstatements, other evidence in the record
allowed the district court to make that inference).
23 Fed. R. Crim. P. 32(i)(3)(A) (emphasis added).
24 United States v. Campbell, 295 F.3d 398, 406 (3d Cir.
2002)).

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between Soto and Ortiz’s brother.”25 The same footnote went
on to note that the government “submitted video footage
showing the two men passing on the street and Soto turning
back several times,” and that there was “no audio recording of
the interaction” that was reported to the police by Ortiz’s
brother.26 The Judge did not rule on these objections,
rendering full adoption of the PSR impossible. Thus, the
unadopted PSR could not have, by itself, supplied a factual
basis to support the District Court’s findings.
And while the record does include passing references
to an FBI affidavit and surveillance footage, neither piece of
evidence is actually in the record, and it is far from clear that
the District Court considered them. Meanwhile, Soto
explicitly denied that there was ever any interaction with
Ortiz’s brother, “much less an attempt at an ‘indirect
threat.’”27 He also argued that any interaction with members
of the jury or other witnesses was “inadvertent and not
intended to be any kind of threat or obstruction of justice in
any way.”28 The District Court declined to hold a hearing on
these issues and failed to enter into the record any of the
support the government claimed it had, but nonetheless
applied the obstruction enhancement.
Due process was therefore lacking here. In applying
the obstruction enhancement, the District Court improperly
relied upon the government’s unsubstantiated allegations
about Soto’s interactions with victims and a testifying
25 Appx 1031.
26 Id.
27 Appx 940.
28 Id.

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witness’s brother. The District Court’s application of a
sentencing enhancement without supporting evidence requires
remand and resentencing.
C. The District Court Abused its Discretion by Inferring
Soto’s Intent Solely from his Elevator Conduct
While there was adequate record evidence to support
the District Court’s finding that Soto entered the elevator with
jurors and asked them to press the button for floor one, it
would have been an abuse of discretion for the District Court
to infer wrongful intent from this action alone.
We have defined “willfully,” as used in §3C1.1, as
acting consciously (“deliberately or intentionally”) with the
purpose of obstructing justice, as opposed to “negligently,
inadvertently, or accidentally.”29 Obstructive conduct under
§3C1.1 includes “threatening, intimidating, or otherwise
unlawfully influencing a co-defendant, witness, or juror,
directly or indirectly, or attempting to do so.”30 Further, we
have held that the obstruction of justice enhancement may
apply only when an individual acts willfully—that is, with the
purpose of achieving an obstruction of justice.
District courts in our Circuit often infer willfulness
based on behavior far more outlandish than what the court
29 United States v. Jenkins, 275 F.3d 283, 287 (3d Cir.
2001) (finding that the individual’s “failure to appear in state
court was an intentional action, one taken with full awareness
of the proceedings”).
30 USSG §3C1.1, cmt. n. 4(a).

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determined Soto did here.31 Although Soto’s behavior may
have been “inappropriate,” the District Court’s focus was not
31 See, e.g., United States v. Green, 617 F.3d 233, 238 (3d
Cir. 2010) (yelling “bitch I oughta kill your fucking ass” at
government witness); United States v. Williams, 591 F. App’x
78, 96 (3d Cir. 2014) (nonprecedential opinion) (making
threatening telephone calls to coerce co-defendant into not
testifying at trial); United States v. Webb, 499 F. App’x 210,
214 (3d Cir. 2012) (nonprecedential opinion) (asking brother
to confront a critical witness during his trial for armed
robbery); United States v. Carter, 293 F. App’x 954, 957 (3d
Cir. 2008) (nonprecedential opinion) (leaving a voice
message for witness stating, “loose lips sink ships” and “you
should be running instead of running your mouth” and
witness testifying that they considered such statements to be a
threat); United States v. Rinick, 219 F. App’x 238, 241–42
(3d Cir. 2007) (nonprecedential opinion) (threatening to kill
someone who called him a “rat”); United States v. Bush, 94 F.
App’x 101, 102 (3d Cir. 2004) (nonprecedential opinion)
(writing, in a letter to wife while awaiting sentencing, that he
would “get that prosecutor . . . for doing this to me,” and
would get witness “for fucking up our getaway trip for that
weekend”).
The parties’ briefing on whether this conduct (alone or
in combination with the two other incidents) rises to the level
of obstruction necessary to justify an enhancement is sparse.
Soto only cites Jenkins, 275 F.3d at 287, for the proposition
that §3C1.1 requires willfulness. The government cites no
analogous cases whatsoever but includes one string cite for
the proposition that the district court, as the finder of fact,
determines the motive for a defendant’s actions and what was
meant by the defendant’s statements. The support for this

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on Soto’s intent to obstruct—the critical element to apply this
enhancement—but on the fact that two out of fourteen jurors
were made uncomfortable by sharing an elevator with him.
Indeed, the court made no mention of the other jurors who
either did not care or, in some instances, did not even
notice.32 In recognizing that an accused person greeting a
passing juror by saying “good morning” is inappropriate but
is not a “big issue,”33 the District Court acknowledged that
not all “inappropriate” behavior creates an inference of intent
necessary for an enhancement, and we certainly agree. While
there is evidence that Soto’s conduct made Juror #2
uncomfortable, that evidence does not bear on the ultimate
issue: whether Soto intended to cause the jurors to feel
proposition is largely out-of-circuit. The only in-circuit case
the government includes is United States v. Adair, 38 F.4th
341, 354 (3d Cir. 2022), which stands for the proposition that
the court can evaluate factual findings in the record for
purposes of an enhancement of §3B1.1. In doing so, the
government overlooks that much of what it describes is not in
the record; they are accusations that the District Court
apparently accepted without any factual finding or record
support.
32 See, e.g., Appx 204 (“JUROR NO. 3: No, actually nothing
happened. He just -- he was, like, one of the last people to get
in the elevator, so . . . .”); id. at 205 (“JUROR NO. 4: No, no,
no, it’s fine. I’m okay with it. It’s fine.”); id. at 211 (In
response to being asked whether Juror No. 9 would hold the
interaction against the defendant he stated, “No, everybody’s
gotta get downstairs”); id. at 211–12 (Jurors No. 10 and 11
did not even recall that Soto stepped into the elevator).
33 Appx 193.

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uncomfortable. And, in any event, nearly all the other jurors
were unfazed by this interaction, if they even noticed it at all.
Given the logistical limitations and configurations of
many courthouses, it will often be difficult to prevent the kind
of interaction that apparently occurred between Soto and his
jurors without proof of the accused’s mindset.34 Without
more, Soto’s request that a juror push an elevator button for a
particular floor is simply the kind of interaction that occurs in
daily life. After all, the juror may have been even more
threatened if Soto had approached her and reached across her
to push the button himself. Moreover, although it could be
argued that Soto should simply have not gotten on the
elevator, nothing suggests that he was ever so advised. In
sum, there is simply not enough in this record to justify a
conclusion that Soto intended to obstruct justice.
Moreover, we fail to see how Soto’s elevator behavior
is materially different from the passing greeting the District
Court described, and the District Court provides no
explanation. It merely acknowledged that his behavior “did
in fact impede” justice because the Court was required to
conduct “a lengthy voir dire because of his conduct getting on
the elevator.”35 The District Court imposed the enhancement
because Soto’s conduct did in fact impede the proceedings;
34 This risk is heightened where judges hold court at unusual
hours, as here. See Appx 189 (“To be candid, I don’t think
there [are] too many other jurors here for other cases here at
8:00 in the morning because most judges don’t start early. I
don’t know if there’s a better solution in terms of how we’re
entering and exiting the courthouse and the courtroom.”).
35 Appx 989.

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but the obstruction of justice enhancement under the
Guidelines turns on his intent—not the consequences of
actions.36
In sum, the District Court committed clear error by
improperly relying on allegations not supported in the record.
Even if it had exclusively relied on what is in the record, the
Court would have abused discretion by applying the
enhancement; Soto’s behavior here is simply not enough to
support an inference that he willfully intended to obstruct
justice, and courts simply cannot read “obstruction” into such
everyday interactions without more than what appears on this
record.
As the District Court noted, greeting a juror with
“good morning” will often be inconsequential,37 even though
it could also be interpreted as intimidation. Relying on such
conduct to impose a sanction for obstruction of justice puts
the accused on the horns of a dilemma. On the one hand they
may very well believe that ignoring a passing juror would be
interpreted as an act of rudeness that would adversely reflect
upon them. On the other hand, greeting the passing juror with
something as mundane as “good morning” might be
interpreted as ill-advised, an improper communication, or
some kind of intimidation. The fundamental guarantee of due
process simply does not allow a court to imprison someone
for such conduct without more than what appears on this
record. Accordingly, the District Court erred in applying a
36 See USSG §3C1.1, cmt. n. 2 (advising the court to ensure
behavior under this enhancement “necessarily reflect[s] a
willful attempt to obstruct justice”) (emphasis added).
37 Appx 193.

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sentencing enhancement for this innocuous conduct under the
circumstances here.
III. Conclusion
Although this record compels our conclusion that a
sentencing enhancement for obstruction of justice was not
justified under the circumstances here, it goes without saying
that jurors perform an absolutely essential function. We
therefore take this opportunity to reiterate the importance of
taking all reasonable and appropriate measures to ensure their
safety and security as well as the need to create an
atmosphere that will allow them to deliberate without fear or
apprehension. Citizens who sacrifice their time and
convenience to discharge the constitutional obligation of jury
duty perform a service that is essential for the proper
functioning of our system of justice. Courts must remain
vigilant in ensuring that jurors do not have a reason to
question the priority courts assign to providing a “safe space”
for the discharge of that service. Nevertheless, for the
reasons we have explained, we are satisfied that
the defendant’s conduct here did not rise to the level of
compromising the safety or security of these
jurors. Accordingly, imposition of this obstruction
enhancement was clear error. There is simply “no rational
relationship” between the enhancement and “the supporting
data.”38
38 Vitillo, 490 F.3d at 330.

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