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Boston Court Reverses Sentence Former Judge Fusté Imposed On Rapper

By on July 12, 2016

SAN JUAN – The U.S. Circuit Court of Appeals in Boston has reversed an eight-year sentence that former District Court Judge José A. Fusté imposed against rapper Neftalí Álvarez Núñez after taking into account what he called violent lyrics in his music.

The Boston court ruled that Fusté imposed an unjustifiable sentence against Álvarez Núñez for music he performed with and music videos. The defendant charged that the sentence violated his First Amendment rights, undermined the legitimacy of the court’s sentencing and rendered his sentence substantively unreasonable.

“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,” the court ruled in a decision dated July 8.

Álvarez-Núñez was arrested in March 2015 after police observed him discarding a handgun outside a bar in Cataño, Puerto Rico. When retrieved and examined, the handgun proved to be loaded, fitted with an extended magazine and modified to fire as a fully automatic weapon. A subsequent search revealed he 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. He pleaded guilty to a two-count federal indictment charging him with possession of a firearm and ammunition by an unlawful user of a controlled substance and possession of a machinegun.

Pacho y Cirilo (Screengrab from

Pacho y Cirilo (Screengrab from

Following the plea, the probation department prepared a presentence investigation report that contained, in its section on offense conduct, a surfeit of information about the defendant’s musical pursuits. Under the stage name “Pacho,” formed part of a musical group known as “Pacho y Cirilo.” The Report further indicated that Pacho y Cirilo was “fairly known” in the locale where the defendant was arrested, including within the Juana Matos Public Housing Project. It went on to state that “[t]he majority of the songs recorded by Pacho y Cirilo promote violence, drugs and the use of weapons and violence,” and in “recent years, Juana Matos project has been known to be associated with murders, drug sales and smuggling and weapons trafficking.”

The PSI Report calculated a guideline sentencing range of 24 to 30 months, but also suggested a potential reason for imposing a sentence above the guideline returning to the defendant’s musical stylings.

Before the sentencing, the defendant objected to the report taking into consideration his performances with Pacho y Cirilo because it infringed upon his First Amendment rights.

The government doubled down, not only resisting the defendant’s objection but also introducing at sentencing excerpts from yet another Pacho y Cirilo music video for the song “Como Grita El Palo.” The district court watched the video and commented that it included rifles and grenade launchers, along with children. After an extended colloquy, the judge ruled that it could consider the defendant’s musical pursuits in crafting the sentence.

Fusté proceeded to impose a 96-month term of immurement — more than three times the top of the guideline sentencing range. The Appeals Court, however, did not say what the adequate sentence was.

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