United States v. Garay-Sierra
885 F.3d 7
1st Cir.2018Background
- Garay pled guilty under a Rule 11(c)(1)(B) plea agreement to possessing a shotgun during a carjacking; possession carries a statutory range of 60 months to life under 18 U.S.C. § 924(c).
- At his original sentencing the judge found he had "brandished" the shotgun and imposed the 84-month mandatory minimum for brandishing; this Court vacated and remanded because Alleyne requires jury findings for facts that increase mandatory minimums.
- At resentencing the judge acknowledged the plea exposed Garay to a 60-month mandatory minimum, but after reviewing § 3553(a) factors again imposed an 84-month sentence.
- The judge relied on the Presentence Report (unobjected-to) showing Garay carried a black shotgun while sitting in the passenger seat during the carjacking; the PSR also recounted accomplice ("Minor 1") conduct including use of a silver handgun (a toy) and a sexual assault.
- Garay raised new arguments on appeal: that the judge improperly rejected the plea agreement and that the resentencing was procedurally erroneous (including alleged Alleyne violation, insufficient facts to support "brandishing," reliance on nonrecord facts, overemphasis on local crime rates, and nationwide sentencing disparity).
- The First Circuit reviewed under plain-error standards (because Garay advanced new arguments not preserved below) and affirmed the 84-month sentence.
Issues
| Issue | Garay's Argument | Government's Argument | Held |
|---|---|---|---|
| Judge rejected plea recommendation | Judge improperly rejected parties' sentencing recommendation | Judge may reject a Rule 11(c)(1)(B) recommendation; plea was accepted but recommendation not binding | Rejection of joint recommendation was proper; no error |
| Alleyne / judge factfinding | Judge relied on a prior judicial brandishing finding to reimpose 84 months, violating Alleyne | Brandishing finding did not set statutory minimum (plea set 60 months); judge may use findings to choose sentence within statutory range | No Alleyne error; judge permissibly used findings to select a within-range sentence |
| Sufficiency of facts to support "brandishing" | Carrying the shotgun did not satisfy statutory/guideline definition of brandish | Unobjected-to PSR showed Garay carried and displayed a shotgun in victims' presence; that supports brandishing | Facts (from PSR) suffice to support brandishing; no plain error |
| Procedural sentencing concerns (nonrecord facts, local crime rate, disparity) | Judge relied on nonrecord facts, overemphasized Puerto Rico crime rates, and created national disparity | Judge relied on PSR facts (unobjected-to), tied local-crime comment to deterrence, and considered individualized factors; no showing of comparable defendants for disparity claim | No procedural error; sentencing considered §3553(a) factors and did not commit plain error |
Key Cases Cited
- Alleyne v. United States, 570 U.S. 99 (2013) (any fact that increases a mandatory minimum must be found by a jury beyond a reasonable doubt)
- United States v. Garay-Sierra, 832 F.3d 64 (1st Cir. 2016) (prior opinion vacating original sentence because judge-found brandishing increased mandatory minimum)
- United States v. Rivera-González, 776 F.3d 45 (1st Cir. 2015) (mandatory minimum under §924(c) treated as the guideline sentence)
- United States v. Ramírez-Negrón, 751 F.3d 42 (1st Cir. 2014) (no Alleyne error when judicial factfinding did not trigger a statutory mandatory minimum)
- United States v. O'Brien, 870 F.3d 11 (1st Cir. 2017) (courts may rely on unobjected-to PSR facts at sentencing)
- United States v. Flores–Machicote, 706 F.3d 16 (1st Cir. 2013) (error where sentencer focuses on community factors at expense of individualized assessment)
- United States v. Martin, 520 F.3d 87 (1st Cir. 2008) (§3553(a)(6) targets national unwarranted sentencing disparities)