United States of America v. Victor Cora-Alicea, a/k/a Ocho

PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
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No. 23-1927
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UNITED STATES OF AMERICA
v.
VICTOR CORA-ALICEA, a/k/a Ocho,
Appellant
__________
On Appeal from the United States District Court
for the Eastern District of Pennsylvania
(D.C. Crim. No. 2-21-cr-00243-05)
District Judge: Honorable John Milton Younge
__________
Submitted Pursuant to Third Circuit LAR 34.1(a)
March 25, 2024
Before: RESTREPO, MATEY, and McKEE, Circuit Judges
(Filed: May 6, 2024)
Lisa Evans Lewis
Brett G. Sweitzer
FEDERAL COMMUNITY DEFENDER OFFICE

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601 Walnut Street
The Curtis Center, Ste. 540 W
Philadelphia, PA 19106
Counsel for Appellant
Jacqueline C. Romero
Robert A. Zauzmer
Jason D. Grenell
U.S. ATTORNEY’S OFFICE
615 Chestnut Street, Ste. 1250
Philadelphia, PA 19106
Counsel for Appellee
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OPINION OF THE COURT
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RESTREPO, Circuit Judge.
People make poor choices. But our sentencing
framework requires judges to balance these decisions against
several factors, including any mitigating evidence, before
determining an appropriate sanction. When a judge fails to do
so on account of an erroneous legal conclusion, a procedural
error exists that requires resentencing. Here, because Victor
Cora-Alicea’s sentencing judge mistakenly believed that
nearly the entirety of his mitigation was accounted for by
adjustments to his Guidelines range, we will vacate and
remand for resentencing.

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I
A. Mr. Cora-Alicea Bags Drugs in North
Philadelphia
In September 2020, the FBI began investigating a man
named Ramone Velazquez and his drug trafficking
organization. Seeing as Mr. Velazquez once proclaimed,
“Every day that God has made . . . I sell drugs,” PSR ¶ 43, the
investigation—consisting principally of controlled buys,
wiretaps, visual surveillance, and searches—quickly revealed
that his group operated out of at least four stash houses in North
Philadelphia and controlled various corners and territories. It
was from these sites that he and his employees processed and
then sold fentanyl and cocaine to people in Philadelphia and
Lancaster, Pennsylvania.
In the end, the government charged 17 men in the
Velazquez operation, including Mr. Velazquez himself. Mr.
Cora-Alicea was one of those individuals. Employed by the
operation for some nine months, he was “by all accounts . . . a
bagger with no supervisory responsibilities in the organization
and was simply directed to sit at a table and bag all day long.”
App. 25 (Gov’t Sentencing Mem.). As a result, the parties later
agreed that he was deserving of a minor role adjustment
pursuant to USSG §3B1.2(b). Arrested on June 24, 2021, he
pleaded guilty without the benefit of an agreement on
November 9, 2022 to violations of 21 U.S.C. §§ 846;
841(a)(1), (b)(1)(A) and (b)(1)(C); and 18 U.S.C. § 2.

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B. Mr. Cora-Alicea Receives a Sentence of 45
Months’ Imprisonment
The parties did not dispute the calculation of Mr. Cora-
Alicea’s Guidelines range at his May 17, 2023 sentencing. A
base offense level of 31, followed by reductions for his safety-
valve eligibility (-2), minor role (-2), and acceptance of
responsibility (-3), yielded a total offense level of 24. His
criminal history category I was based on a nonexistent criminal
record. The District Court therefore set his Guidelines range at
51–63 months.
The government took no specific position on where
within that range Mr. Cora-Alicea should be sentenced,
arguing only that no variance should be granted. Mr. Cora-
Alicea, by contrast, requested a mitigation-based variance from
the range pursuant to 18 U.S.C. § 3553(a). In his view, his life
history and personal characteristics, coupled with an
anticipated change to the Guidelines for people with zero
criminal history points,1 justified a variance to approximately
24 months’ imprisonment (in other words, a time-served
sentence). In support of this request, he provided evidence
regarding his cognitive deficits and depression, mitigating
motive, traumatic childhood, family ties, and employment
prospects.
1 That amendment to the Guidelines, No. 821, went into
effect on November 1, 2023. See U.S. Sentencing Comm’n,
Amendment 821, available at
https://www.ussc.gov/guidelines/amendment/821.

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In support of his request for a variance, the District
Court heard testimony from Dr. Adriana Flores, a licensed
clinical and forensic psychologist, who interviewed and
evaluated Mr. Cora-Alicea. Dr. Flores administered
psychological testing that revealed illiteracy (“[H]e is unable
to read or write . . .” in either English or Spanish) and an IQ of
82, both suggesting low intellectual functioning (“[I]f you had
a hundred individuals his age in the room, he would be at the
bottom twelve”).2 App. 69, 71. Moreover, Dr. Flores diagnosed
him, retrospectively, with clinical depression at the time of the
offense (serious enough to include exhibiting suicidal
ideation).
Dr. Flores also described what she called mitigation
(i.e., her “evaluation of how [he got] here, . . . the causal
factors”). App. 71–72. His low intellectual ability was “a main
contributing factor.” App. 72. She specifically pointed to
lowered coping abilities when under stress because of his
diminished intellectual capacity. Id. (“[H]e’s not going to be
able to think of as many logical, rational solutions as somebody
with an IQ of a hundred, which would be average.”). That
lower intellectual functioning also made him “more likely to
be talked into doing something, that may not, necessarily, be
in his best interests.”3 Id. In her view, and interrelatedly, his
2 Mr. Cora-Alicea’s intellectual limitations also raised
concerns for Dr. Flores that he would be more vulnerable to
harm while incarcerated.
3 Dr. Flores suggested that it was even harder for Mr.
Cora-Alicea to resist the series of bad decisions that landed him
in custody because the person who approached him about
working for Mr. Velazquez was a “close family member” who

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depression (triggered by pandemic-induced unemployment
and the stress it caused his low-income family, including a son
with special needs) also played a role in his unexpected turn to
crime.
In contextualizing Mr. Cora-Alicea’s actions, Dr. Flores
provided descriptions of the forms of childhood trauma he
experienced. Specifically, she described him growing up in
poverty in Puerto Rico without a father, and the intense
bullying he experienced for his intellectual deficits, speech
impediment, and for being dark-skinned. The District Court
also heard from Mr. Cora-Alicea’s mother-in-law, sister-in-
law, and brother, and received assurances of his future
employability. Taking all of this into consideration, Dr. Flores
ultimately described Mr. Cora-Alicea’s risk of recidivism as
“really low.” App. 75.
Finally, the District Court heard from Mr. Cora-Alicea
himself, who made brief, tearful remarks:
First, I would like to say, good morning and I’m
sorry for wasting all your time. And this will
never happen in my life again, it’s the first time
it happened.
([Mr. Cora-Alicea] is weeping.)
I miss my family. And I honestly tell you, this
will not happen again. I’ve learned my lesson
he “considered a brother.” App. 73. That person had previously
“protected him against some pretty severe bullying that he had
experienced in childhood, because of his intellectual deficits.”
App. 74.

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and my family has done so much for me. I am
sorry.
App. 109.
The District Court, having heard from the parties and
from Mr. Cora-Alicea himself, pronounced its sentence: 45
months on each count, to be served concurrently, followed by
a total of three years on supervised release. This small variance
took into consideration his zero-point status but ignored Mr.
Cora-Alicea’s other bases for a variance.
C. Mr. Cora-Alicea Challenges His Sentence
Mr. Cora-Alicea timely appealed the District Court’s
judgment, arguing that the District Court procedurally erred at
sentencing by 1) dismissing the majority of his personal
mitigation evidence offered in support of a variance under 18
U.S.C. § 3553(a) on the ground that it was “already taken into
account” by the downward adjustments under the Guidelines,
App. 114, 2) dismissing Dr. Flores’s opinion that he was
depressed at the time of the offense on the ground that the same
can be said about “every minority in the United States,” App.
86, and 3) responding to his allocution by telling him that he
should “[b]e the man [] you’re supposed to be” and “stop
sitting up here crying.” App. 119. As the first issue is
dispositive and was properly objected to, we will limit our
analysis accordingly.4
4 We will, however, remind all involved that these
hearings are solemn occasions in which judges are tasked with
crafting “individualized sentence[s].” United States v. Ward,
732 F.3d 175, 181 (3d Cir. 2013). Allocution, for its part, “is

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II5
Federal sentencing involves a three-step process.
District courts must first calculate the initial Guidelines range,
then rule on any motions to depart from the initial range and
state the final, departed-to range, and—finally—exercise
discretion to choose a sentence within or outside the final range
based on the sentencing factors in 18 U.S.C. § 3553(a). United
States v. Gunter, 462 F.3d 237, 247 (3d Cir. 2006). Step-two
deviations from the initial range (“departures”) are based on
specific Guidelines provisions, whereas step-three deviations
from the final range (“variances”) are based on the § 3553(a)
sentencing factors. Id. at 247 n.10.
designed to temper punishment with mercy in appropriate
cases, and to ensure that sentencing reflects individualized
circumstances.” Id. (quoting United States v. De Alba Pagan,
33 F.3d 125, 129 (1st Cir. 1994)). By definition, gross
generalizations or stereotypes—whether they be about race or
gender—do not produce individualized sentences. And they
are inappropriate for several reasons, not the least of which is
how they prejudge people rather than allowing them to speak
for themselves.
5 The District Court had subject-matter jurisdiction
under 18 U.S.C. § 3231. We have jurisdiction under 28 U.S.C.
§ 1291 and 18 U.S.C. § 3742(a). We review criminal sentences
for abuse of discretion. United States v. Wise, 515 F.3d 207,
217 (3d Cir. 2008). A district court abuses its discretion when
it bases a sentence on an erroneous legal conclusion, the
erroneousness of which we review de novo. Id. Where no
objection has be made, plain error must be shown. Fed. R.
Crim. P. 52(b).

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“In order to satisfy step three, ‘[t]he record must
disclose meaningful consideration of the relevant statutory
factors and the exercise of independent judgment, based on a
weighing of the relevant factors, in arriving at a final
sentence.’” United States v. Kluger, 722 F.3d 549, 566 (3d Cir.
2013) (quoting United States v. Grier, 475 F.3d 556, 571–72
(3d Cir. 2007) (en banc)). In other words, step three requires “a
true, considered exercise of discretion.” United States v.
Friedman, 658 F.3d 342, 359 (3d Cir. 2011) (quoting United
States v. Jackson, 467 F.3d 834, 841 (3d Cir. 2006)). An
exercise of discretion tainted by an erroneous legal
conclusion—including a misinterpretation of the Guidelines—
results in procedural error requiring resentencing unless the
error is harmless. See United States v. Wise, 515 F.3d 207, 217
(3d Cir. 2008); United States v. Zabielski, 711 F.3d 381, 386
(3d Cir. 2013).
Things went awry in this case during step three. As
described above, Mr. Cora-Alicea sought a variance to a
below-Guidelines range sentence of time served. But the
District Court erroneously concluded that all but one of his
grounds for a variance (the unavailability of the two-level
reduction for having zero criminal history points) had already
been accounted for by the downward adjustments for safety-
valve eligibility, minor role, and acceptance of responsibility
applied in step one’s Guidelines calculation.6 This is incorrect
as a matter of law.
6 The District Court specifically noted the following at
sentencing:
As I look at the sentencing guidelines, the
Probation officer and the guideline calculations

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“The ‘safety valve’ provision of federal sentencing law
exempts certain [individuals] from mandatory minimum
penalties, thus enabling courts to give them lighter prison
terms.” Pulsifer v. United States, 144 S. Ct. 718, 723 (2024).
In determining safety-valve eligibility, district courts evaluate
an individual’s lack of criminal history; lack of violence, death,
have already taken into account, the fact that he
was entitled to the safety valve, which took two
levels off. He was given two levels off . . . [] as
a minor participant. He was given another two
levels off for his demonstrated acceptance of
responsibility. He was given another one level
off, because he assisted the authorities in the
investigation and the prosecution of his own
misconduct, which gave him a total offense level
of twenty-four.
The guidelines have already taken into account,
where Mr. Cora-Alicea is, the fact that he is a
good person, that’s done something bad, that
we’d shake our head and wonder why he did that,
there is no answer to that. And even Mr. Cora-
Alicea does not provide a good answer to that. []
The [] guideline calculations have already taken
into account his character. * * * But, [defense
counsel], everything that you’ve stated has
already been taken into account . . . . * * *
[E]verything that you’ve been indicating,
[defense counsel], I’ve -- he’s already been given
the benefit of that.
App. 113–115.

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or serious bodily injury in the offense; lack of aggravating role
in the incident; and acceptance of responsibility for the crime.
USSG §5C1.2(a)(1)–(5); 18 U.S.C. § 3553(f)(1)–(5).
Meanwhile, the minor-role and acceptance-of-responsibility
adjustments similarly consider a participant’s role in the
offense and their acceptance of responsibility for it. USSG §§
3B1.2(b), 3E1.1. These adjustments have nothing to do with
the myriad of mitigating circumstances raised by Mr. Cora-
Alicea under § 3553(a). See supra I.B. And even if they had a
connection of some sort, district courts must nevertheless
demonstrate meaningful consideration of the mitigation
evidence rather than summarily dismissing it as accounted for
by the Guidelines. See, e.g., United States v. Begin, 696 F.3d
405, 414 (3d Cir. 2012) (rote recitation of sentencing factors
insufficient to demonstrate meaningful consideration of
variance ground). This was not done here.
Accordingly, step three of Mr. Cora-Alicea’s
sentencing was tainted by the District Court’s misinterpretation
of the Guidelines. This erroneous legal conclusion, that Mr.
Cora-Alicea’s variance grounds are accounted for by the
downward adjustments for safety-valve eligibility, minor role,
and acceptance of responsibility, was prejudicial as it
preempted any weighing of the mitigation evidence against the
Guidelines range or the other sentencing factors—much less
the degree of weighing we require to demonstrate “the exercise
of independent judgment,” Grier, 475 F.3d at 571–72, and “a
true, considered exercise of discretion,” Friedman, 658 F.3d at
359 (quoting United States v. Jackson, 467 F.3d 834, 841 (3d
Cir. 2006)).

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III
We will thus vacate Mr. Cora-Alicea’s sentence and
remand his case to the District Court for
resentencing.7 See United States v. Mateo-Medina, 845 F.3d
546, 550 (3d Cir. 2017) (acknowledging that we generally
vacate a procedurally deficient sentence and remand for
resentencing).
7 Mr. Cora-Alicea has been on home confinement since
March 12 of this year. Once his First Step Act credits are fully
calculated, he is likely to complete his custodial sentence on
May 23 (and perhaps sooner). Telephone conversation with
Alison O’Neill, Residential Reentry Specialist, Fed. Bureau of
Prisons (April 24, 2024). Considering this timeline, we urge
the District Court to move expeditiously in resentencing him.

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