Not I, not I, but the wind that blows through me!

United States v. Alvarez-Núñez, No. 15-2127 (1st Cir. July 8, 2016).

The defendant pleaded guilty to firearm crimes. The probation officer’s sentencing report suggested an above-guidelines sentence, noting that the defendant was part of a reggaeton duo, Pacho y Cirilo, whose songs, in the report’s words, “promote violence, drugs and the use of weapons and violence.” The defendant objected to the report. The district court, however, ended up watching the video for “Como grita el palo,” one of the duo’s songs—a title that I think means something like “listen to that gat scream.” The court criticized the video’s content, decided it could consider the defendant’s music, and gave the recommended above-guidelines sentence: eight years in prison. (Note that the amateur music criticism preceded the decision to take the music into account.)

The First Circuit doesn’t hold that the district court violated the First Amendment by considering the defendant’s music. It does hold, though, that the district court shouldn’t have assumed that the music accurately reflected what was going through the defendant’s mind when he violated federal gun laws. A sentencing court, the First Circuit says, can’t just leap from art to life, particularly where, as here, the defendant has no previous criminal history. This sort of apprehension seems wise. We should all be reluctant to draw broad inferences from art to life. Art can be disguise as well as disclosure.

The defendant’s sentence is vacated and the case is remanded for resentencing.