Song Lyrics Improperly Informed Sentence

     (CN) — The violent song lyrics and music videos of a Puerto Rican man convicted of possessing a machine gun and drugs do not justify a harsher prison sentence, the First Circuit ruled.
     Police arrested Neftali Alvarez-Nunez outside a bar in Catano, Puerto Rico in March 2015, after seeing him drop a loaded handgun modified to fire as a fully automatic weapon.
     Núñez had plenty ammunition and half a dozen Percocet tablets, with no prescription, and later admitted that he had been addicted for about two years and often smoked pot.
     He pleaded guilty to a two-count federal indictment charging him with possession of a machine gun, and of a firearm and ammunition by an unlawful user of a controlled substance.
     The pre-sentence investigation report noted that Nunez, under the stage name “Pacho,” was part of “Pacho y Cirilo” — a musical group known within the Juana Matos Public Housing Project, an area notorious for murders, drug sales and smuggling, and weapons trafficking.
     Most of the group’s songs “promote violence, drugs and the use of weapons and violence,” according to the report, which included certified translations of two songs and a certified transcription of a music video.
     “They know we can go to war with the United States Army,” one of the cited songs states.
     The report gave a guideline sentencing range of 24 to 30 months, but suggested that Nunez’s lyrics and activity in his music videos might justify a higher sentence.
     Nunez objected, claiming the music argument infringed his First Amendment rights.
     The government then introduced at sentencing clips from yet another music video.
     Noticing that the video included rifles and grenade launchers, along with children, the sentencing court adopted the guideline calculations and imposed 96 months of immurement — more than three times the top of the guideline range.
     Nunez appealed, and the First Circuit vacated the lower court’s ruling Friday.
     “That an actress plays Lady Macbeth, or a folk singer croons ‘Down in the Willow Garden,’ or an artist paints ‘Judith Beheading Holofernes,’ does not, without more, provide any objective evidence of the performer’s motive for committing a crime, of his personal characteristics (beyond his ability to act, sing, or paint, as the case may be), or of any other sentencing factor,” Judge Bruce Selya wrote for the three-judge panel.
     The judge later added: “Nothing in the record indicates that the lyrics or music videos had any direct application either to the defendant or to his lifestyle. Nor is there any basis for a claim that they are unlawful in any respect. By like token, there is no hint that the defendant had any prior involvement with illegal firearms, much less with violence or murder. The government did not so much as attempt to prove any uncharged conduct, nor did the district court make any findings about the defendant’s involvement in any other criminal activity.”
     In fact, the pre-sentence investigation report confirms that Nunez had no adult criminal history at age 34, the ruling states.
     “In this case, the sentencing court confused the message with the messenger,” Selya wrote. “That led the court to blur the line between the artistic expression of a musical performer and that performer’s state of mind qua criminal defendant.”
     The court added that “this line-blurring undermined the plausibility of the court’s sentencing rationale (and, thus, rendered the sentence substantively unreasonable).”

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