77 F.4th 41
1st Cir.2023Background
- On June 8, 2018, Diaz participated in the kidnapping and murder of a rival gang member (WGE); he transported the victim and remained in the vehicle while co‑defendants shot and killed WGE, and later helped burn the victim's Toyota Camry.
- Charged in a three‑count superseding indictment; Diaz pleaded guilty to one count under 18 U.S.C. § 924(c) (using/brandishing/discharging a firearm in relation to a crime of violence). Two counts were dismissed per the plea agreement.
- Section 924(c)(1)(A)(iii) carried a statutory mandatory minimum of 120 months; the parties jointly recommended an above‑guidelines variant sentence of 210 months; Diaz preserved the right to appeal any sentence above 210 months.
- The PSR (unobjected to) noted four prior arrests but no convictions (criminal history category I) and recited facts including that Diaz received a call ordering the murder and helped burn the Camry.
- The district court rejected the joint 210‑month recommendation as insufficient and imposed 240 months (within the statutory range), citing the seriousness of the offense, deterrence, and two aggravating facts unique to Diaz (receipt of the murder order and burning the Camry).
- Diaz appealed, arguing procedural and substantive unreasonableness based on (1) impermissible judicial fact‑finding, (2) improper reliance on prior arrests, and (3) an unwarranted sentencing disparity with a co‑defendant who received 194 months.
Issues
| Issue | Government's Argument | Diaz's Argument | Held |
|---|---|---|---|
| Whether district court violated Sixth Amendment by relying on judicially found facts to justify an upward variance | Judicially found facts may guide sentencing within the statutory range; Booker limits apply only when facts increase the statutory maximum or trigger mandatory minima | Court impermissibly used PSR facts (call ordering the murder; burning the car) to justify a variance beyond what the plea‑admitted facts supported | No Sixth Amendment error: facts were used to exercise discretion within the statutory range, so Booker concerns did not bar their use |
| Whether court improperly relied on prior arrests as aggravating conduct | Government: transcript does not clearly show reliance on arrests; merely mentioning arrests in reciting guidelines does not prove they affected §3553(a) analysis | Diaz: court’s reference to arrests shows it relied on unproven arrests in imposing the upward variance, which is plain error | No plain error: record does not firmly establish the court relied on arrests in weighing §3553(a) factors, so the claim fails under plain‑error review |
| Whether Diaz’s 240‑month sentence was substantively unreasonable because it created an unwarranted disparity with similarly situated co‑defendant Melendez (194 months) | Government: district court plainly identified material differences (Diaz received the murder order and burned the Camry) that justified a harsher sentence | Diaz: he and Melendez admitted identical facts; Melendez had higher criminal history yet got a lower sentence, so disparity is unwarranted | No abuse of discretion: court offered a plausible, fact‑based rationale for disparity—differences in culpability support the tougher sentence |
| Standard of review and preservation | Government: procedural challenges forfeited, review is plain error; substantive challenge preserved—abuse of discretion review | Diaz: preserved right to appeal above 210 months; raised procedural and substantive claims on appeal | Court: applied plain‑error review for procedural claims not preserved; reviewed substantive challenge for abuse of discretion and found no reversible error |
Key Cases Cited
- United States v. Melendez-Rosado, 57 F.4th 32 (1st Cir. 2023) (use of plea agreement/PSR to state facts on guilty‑plea appeals)
- United States v. Vargas, 560 F.3d 45 (1st Cir. 2009) (drawing factual background from plea materials)
- United States v. Booker, 543 U.S. 220 (2005) (Sixth Amendment limits on judicial fact‑finding when facts increase statutory maxima)
- Rita v. United States, 551 U.S. 338 (2007) (distinguishing permissible judicial fact‑finding for within‑range sentencing)
- Dillon v. United States, 560 U.S. 817 (2010) (limits on facts needed to justify increased sentences following pleas)
- Rosales-Mireles v. United States, 138 S. Ct. 1897 (2018) (plain‑error framework and effect of guideline errors on substantial rights)
- United States v. Torres-Meléndez, 28 F.4th 339 (1st Cir. 2022) (arrests without convictions cannot be used as aggravating factors)
- United States v. Marrero-Pérez, 914 F.3d 20 (1st Cir. 2019) (prohibiting weight given to mere arrests at sentencing)
- United States v. Santa-Soler, 985 F.3d 93 (1st Cir. 2021) (courts may recount arrest history but not rely on unproven arrests as aggravating conduct)
- United States v. Reyes-Santiago, 804 F.3d 453 (1st Cir. 2015) (§3553(a)(6) and unwarranted sentencing disparity principles)
- United States v. Rivera-Gonzalez, 626 F.3d 639 (1st Cir. 2010) (need for a plausible sentencing rationale to avoid arbitrary intra‑judge disparities)
- United States v. Torres-Landrúa, 783 F.3d 58 (1st Cir. 2015) (supportable factual differences can justify different sentences among co‑defendants)