United States v. Delgado-Sanchez
849 F.3d 1
| 1st Cir. | 2017Background
- Delgado pled guilty to being a prohibited person in possession of a firearm (18 U.S.C. § 922(g)(1)) after police found an AK-47 and ammunition at his home.
- The PSR assigned a base offense level under U.S.S.G. § 2K2.1(a)(3) (base level 22) based on a prior felony "crime of violence," producing an adjusted offense level of 19 and Criminal History Category IV.
- The PSR relied on prior Puerto Rico convictions: robbery (Art. 198) and multiple counts under the Puerto Rico Weapons Law (Art. 5.15 — discharging/pointing firearms) arising from a March 2009 incident where Delgado pointed a firearm and committed robberies.
- Delgado raised no objections to the PSR before sentencing; a second PSR was docketed the day of sentencing to reflect a subsequent conviction that added one criminal-history point.
- The district court adopted the PSR, applied the base offense level under § 2K2.1(a)(3), considered § 3553(a) factors (including Puerto Rico's gun-violence problem and Delgado's arrest history), and imposed an above-guidelines sentence of 72 months.
- On appeal Delgado challenged (1) the § 2K2.1(a)(3) "crime of violence" designation for his prior convictions, (2) several procedural aspects of sentencing (including PSR handling and reliance on dismissed charges), and (3) substantive reasonableness of the 72-month sentence. The First Circuit affirmed in full.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether prior conviction(s) under Puerto Rico Art. 5.15 qualify as a "crime of violence" for U.S.S.G. § 2K2.1(a)(3) | Gov: Art. 5.15 (pointing or discharging) is divisible and the "pointing" offense (intentionally aiming at a person) constitutes a threatened use of physical force, qualifying as a crime of violence. | Delgado: Art. 5.15 is indivisible or, even if divisible, can be committed without threatened physical force (e.g., victim unaware or gun unloaded), so it is not categorically a crime of violence. | Court: Statute is divisible; reasonable to treat the "pointing" variant as a crime of violence; no plain error in applying § 2K2.1(a)(3). |
| Preservation / standard of review for PSR classification | Gov: Delgado failed to object at sentencing, so review is at most plain error; may be waived. | Delgado: Admits non-preservation but urges plain error review. | Court: Applied plain error standard and rejected Delgado’s challenge on the merits. |
| Procedural complaint about late/second PSR and criminal-history calculation | Delgado: New PSR (docketed day of sentencing) added a criminal-history point without adequate notice or inquiry; also disputes total points (7 v. 8). | Gov: Second PSR merely reflected post-PSR events and a medical record added at sentencing; even if error, no prejudice because CHC remained IV. | Court: No prejudicial error; Criminal History Category unchanged, so sentencing range unaffected. |
| Reliance on dismissed charges and community gun-violence statements | Delgado: Court plainly erred by weighing dismissed charges and by referencing Puerto Rico gun-violence problem. | Gov: District court may consider background and community context; dismissed charges were discussed but did not drive sentence unlawfully. | Court: No plain error; consideration of community crime problem permissible; reliance on dismissed charges not reversible under plain-error standard. |
Key Cases Cited
- Taylor v. United States, 495 U.S. 575 (sets out the categorical approach to predicate offenses)
- Shepard v. United States, 544 U.S. 13 (permits certain documents to identify which statutory alternative formed the basis of a prior conviction)
- Descamps v. United States, 133 S. Ct. 2276 (clarifies categorical/modified categorical approach)
- Johnson v. United States, 559 U.S. 133 (defines "physical force" as violent force capable of causing pain or injury)
- United States v. Martinez, 762 F.3d 127 (1st Cir.) (discusses violent force standard under § 4B1.2)
- United States v. Serrano-Mercado, 784 F.3d 838 (1st Cir.) (applies categorical approach to Puerto Rico offenses)
- United States v. Turbides-Leonardo, 468 F.3d 34 (1st Cir.) (discusses waiver vs. forfeiture at sentencing)
- United States v. Watts, 519 U.S. 148 (per curiam) (addresses use of unproven conduct at sentencing)