United States v. Gallardo-Ortiz
2012 U.S. App. LEXIS 1273
| 1st Cir. | 2012Background
- Gallardo-Ortiz pled guilty to two counts involving possession of a firearm and ammunition by a felon and possession of a machine gun; a third count was to be dismissed.
- The parties recommended a 33-month sentence, but the district court sentenced him to 60 months and three years of supervised release after upwardly departing from the guideline range.
- The district court relied on § 3553(a) factors and the seriousness of the offense, Gallardo’s violent conduct, and his lack of mature judgment to justify the variance.
- Gallardo timely appealed, arguing procedural errors and substantive unreasonableness in the upward variance.
- The First Circuit reviewed for reasonableness, upholding the district court’s variance as within the universe of reasonable outcomes.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Procedural error in sentencing | Gallardo alleges procedural errors tainted the sentence. | Gallardo contends the court relied on inaccurate or speculative facts. | No reversible procedural error; sentence deemed reasonable. |
| Reliance on employment history | Gallardo asserts court misread employment history to suggest illicit income. | Gallardo argues the court mischaracterized PSR facts about income. | Findings about employment history supported by context and proper consideration. |
| Criminal history and dismissed charges | Gallardo claims reliance on dismissed/arrest records was improper. | Gallardo contends court erred by using arrests and prior charges to show violent character. | Court's use of history and dismissed charges fell within permissible, reliable evidence for deterrence and character assessment. |
| Circumstances of the offense | Gallardo challenges the court’s fixation on the offense’s seriousness and use of high-capacity firearm. | Gallardo argues the court overstates offense severity based on contested details. | Court properly emphasized danger and weapon’s firepower; variance grounded in offense circumstances. |
| Post-arrest interaction with law enforcement | Gallardo argues the admission of lies to police should not affect sentencing after accepting responsibility. | Gallardo contends responsibility acknowledgment should mitigate. | Court properly considered dishonest conduct and later responsibility, not warranting automatic remand. |
Key Cases Cited
- Gall v. United States, 552 U.S. 38 (U.S. 2007) (reasonableness review; variance within universe of reasonable outcomes)
- United States v. Clogston, 662 F.3d 588 (1st Cir. 2011) (procedural vs. substantive reasonableness; deference to district court)
- United States v. Madera-Ortiz, 637 F.3d 26 (1st Cir. 2011) (weight given § 3553(a) factors; individualized sentencing judgments)
- United States v. Martin, 520 F.3d 87 (1st Cir. 2008) (universe of reasonable outcomes; district court latitude)
- United States v. Thurston, 544 F.3d 22 (1st Cir. 2008) (variance outside GSR; context and justification required)
- United States v. Davila-Gonzalez, 595 F.3d 42 (1st Cir. 2010) (standard of review and preservation considerations)
- United States v. Cintrón-Echautegui, 604 F.3d 1 (1st Cir. 2010) (reliability of information at sentencing; admissibility standards)