United States v. Marchena-Silvestre, 2015 U.S. App. LEXIS 17514

Background

On Oct. 24, 2013, police seized an AR-15 (converted to full auto), a Glock (converted to full auto and stolen), and 127 rounds from Marchena‑Silvestre's apartment; he confessed ownership and modification.
Federal indictment charged possession of a machine gun (18 U.S.C. § 922(o)) and possession of a stolen firearm (18 U.S.C. § 922(j)); defendant pleaded guilty to the machine‑gun count under a written plea agreement that dismissed the stolen‑gun count.
The plea agreement included a chart stipulating Guidelines calculations (total offense level 17) and a sentence‑recommendation clause stating the government would seek the high end and defendant the low end of the “applicable guidelines range.”
The PSR deviated from the agreement, calculating a higher base offense level (20 → total offense level 19) because defendant was a “prohibited person” due to illegal drug use, yielding a 30–37 month range (Crim. Hist. I); defendant told the court he had no PSR objections.
At sentencing the district court miscalculated and announced a non‑existent Guidelines range (variously 31–41 and later 33–41 months), stated the case warranted an upward variance, and imposed a 72‑month sentence; neither counsel nor the prosecutor corrected the court.
The First Circuit vacated the sentence for plain procedural error, ordered resentencing before a different judge, and declined to finally resolve the parties’ dispute over the plea‑agreement term meaning at this stage.

Issues

Issue	Plaintiff's Argument (Govt)	Defendant's Argument (Marchena‑Silvestre)	Held
Did the court commit reversible procedural error by failing to calculate the correct Guidelines range?	The court’s misstatements were immaterial because it declared the case was not a Guidelines case and intended a variance.	The court plainly erred in misstating base level, failing to calculate total offense level, and using a non‑existent range, which likely affected the sentence.	Yes. Plain error: court failed to correctly calculate Guidelines, affecting substantial rights; remand for resentencing ordered.
Was the 72‑month sentence substantively reasonable?	The government argued the court properly considered §3553(a) factors and justified an upward variance.	Defendant argued the sentence was excessive and based on incorrect facts and calculations.	Not reached on merits—court vacated sentence for procedural error, so substantive reasonableness was not decided.
Did the government breach the plea agreement by recommending above the agreement’s stipulated range?	"Applicable guidelines range" refers to the range determined at sentencing (per the government).	The phrase refers to the chart in the plea agreement (the parties’ stipulated range); recommending above that was a breach.	Court declined to decide finally; agreement language favors defendant’s reading but issue left open for resentencing.
Should resentencing occur before a different judge?	Not specifically opposed on appeal.	Due to possible breach and the original judge’s apparent commitment to a six‑year term without correct calculations, resentencing should be before a new judge.	Yes. The Court ordered resentencing before a different judge.

Key Cases Cited

Gall v. United States, 552 U.S. 38 (2007) (district court must correctly calculate Guidelines before varying)
Freeman v. United States, 131 S. Ct. 2685 (2011) (Guidelines provide framework/starting point)
United States v. Millán‑Isaac, 749 F.3d 57 (1st Cir. 2014) (respectful consideration of advisory Guidelines required)
United States v. Almonte‑Nuñez, 771 F.3d 84 (1st Cir. 2014) (interpreting plea agreement chart as locking in offense level)
United States v. Ortiz, 741 F.3d 288 (1st Cir. 2014) (error in Guidelines calculation likely affects sentence; anchoring effect)
Puckett v. United States, 556 U.S. 129 (2009) (plain‑error review has bite in plea‑agreement cases)
United States v. Duarte, 246 F.3d 56 (1st Cir. 2001) (four‑part plain‑error test)