United States v. Garay-Sierra
832 F.3d 64
1st Cir.2016Background
- Garay pleaded guilty pursuant to a binding Rule 11(c)(1)(C) plea agreement to carjacking (18 U.S.C. § 2119) and to possessing (but not brandishing) a firearm during a crime of violence (18 U.S.C. § 924(c)(1)(A)(i)).
- The plea agreement included agreed sentencing recommendations: Garay would recommend 40 months on the carjacking count; both parties recommended the 60-month mandatory minimum for the firearm count (possessing), and the government would recommend a sentence within the to-be-calculated Guideline range for carjacking; sentences to run consecutively; Garay waived appeal if the court accepted the agreement.
- The PSR (unchallenged) recommended a 4-level "serious bodily injury" enhancement under U.S.S.G. § 2B3.1(b)(3)(B) because a co-defendant sexually assaulted a victim in Garay’s presence, producing a 70–87 month Guideline range for carjacking; the PSR also mistakenly listed an 84-month firearm minimum.
- At sentencing the judge adopted the PSR calculations: imposed 70 months (within Guidelines) on the carjacking count and 84 months (treating the firearm as brandishing) consecutively — for a total of 154 months — even though the parties had jointly recommended 60 months on the firearm count.
- Garay appealed, arguing the appeal waiver was unenforceable, the § 2B3.1 serious-bodily-injury enhancement was improper, the carjacking sentence was inadequately explained, and the court erred by imposing an 84-month brandishing sentence despite a plea to possession. The government conceded the brandishing error but defended the carjacking sentencing rulings and argued the appeal waiver applied.
Issues
| Issue | Plaintiff's Argument (Garay) | Defendant's Argument (Government) | Held |
|---|---|---|---|
| Applicability of appeal waiver | Waiver unenforceable because court imposed a firearm sentence (84 months) different from the agreed 60 months, so waiver inapplicable | Waiver enforceable; sentence aligned with parties' recommendations or waiver should still bind | Court assumed waiver inapplicable for analysis but did not decide waiver issue (proceeded to address merits) |
| Serious-bodily-injury enhancement (U.S.S.G. § 2B3.1(b)(3)(B)) | Enhancement improper; challenged on appeal | PSR facts (unchallenged) show co-defendant sexually assaulted a victim in Garay’s presence, fitting commentary definition tied to § 2241/2242 | No plain error; enhancement proper given PSR facts indicating sexual abuse by co-defendant in Garay’s presence |
| Adequacy of sentencing explanation / consideration of § 3553(a) factors | Judge failed to adequately consider Garay's youth, addiction, depression, intellectual deficits and did not sufficiently explain upward choice within Guidelines | Judge addressed Garay’s personal history, offense seriousness, sentencing purposes; within-Guidelines sentence requires only a concise explanation and may be supported by PSR and parties' arguments | No plain procedural error; explanation and consideration of factors adequate; sentence affirmed on carjacking count |
| Firearm mandatory minimum (brandishing vs. possession) | Sentencing for brandishing erroneous because Garay pled to possession and parties recommended 60 months | Government concedes judge erred in treating firearm as brandishing and imposing 84 months | Plain error: vacate firearm sentence and remand for resentencing; amend judgment to reflect plea to possession (60-month minimum) |
Key Cases Cited
- Alleyne v. United States, 133 S. Ct. 2151 (2013) (hostage facts increasing mandatory minimum must be found by jury or admitted; sentencing facts that raise minimums constitute error if not submitted properly)
- United States v. Denson, 689 F.3d 21 (1st Cir. 2012) (sentencer need not give equal weight to every § 3553(a) factor)
- United States v. Ocasio–Cancel, 727 F.3d 85 (1st Cir. 2013) (judge’s explanation can be supplemented by comparison to parties’ arguments and the PSR)