United States v. Nieves-Borrero
856 F.3d 5
| 1st Cir. | 2017Background
- Miguel Nieves-Borrero pleaded guilty to aiding and abetting a convicted felon in possession of a firearm (18 U.S.C. §§ 922(g)(1), 924(a)(2), and 2) under a plea agreement that calculated a Guidelines offense level 12 (range 10–16 months for CHC I).
- A presentence report (PSR) later identified two prior felony convictions not mentioned in the plea agreement and recalculated a base offense level of 26 under U.S.S.G. § 2K2.1(a)(1)(B), applying enhancements and yielding an adjusted offense level of 25 and CHC III (range 70–87 months).
- The District Court noted the PSR's higher Guideline calculation, Nieves did not object at sentencing, and the court imposed a 70-month sentence (the bottom of the PSR range).
- On appeal, Nieves challenged (1) whether his Puerto Rico fourth-degree aggravated battery conviction qualified as a "crime of violence" under U.S.S.G. § 4B1.2, (2) whether his attempt-to-possess-with-intent-to-distribute conviction qualified as a "controlled substance offense," (3) whether the District Court properly applied the categorical approach rather than relying on the PSR, and (4) whether the court failed to give adequate weight to mitigating 18 U.S.C. § 3553(a) factors.
- The First Circuit reviewed unpreserved objections for plain error and rejected them, affirming the 70-month sentence.
Issues
| Issue | Plaintiff's Argument (Nieves) | Defendant's Argument (Government) | Held |
|---|---|---|---|
| Whether Puerto Rico fourth-degree aggravated battery is a "crime of violence" under U.S.S.G. § 4B1.2 | Battery does not meet the force clause and residual clause is void under Johnson | Residual clause remains valid after Beckles; Article 122 requires injury needing medical treatment and thus fits the force clause or residual clause | Court: No plain error; Beckles saves the residual clause; Article 122 on its face fits the force clause and Nieves failed to show otherwise |
| Whether attempt to possess with intent to distribute (Art. 406) is a "controlled substance offense" under § 4B1.2 | Attempt conviction cannot qualify as a controlled substance offense | Guideline commentary expressly includes attempts; precedent treats Article 406 attempt/conspiracy as qualifying | Court: No plain error; commentary is authoritative and attempt qualifies |
| Whether the District Court erred by relying on the PSR without applying the categorical approach itself | Court should have independently applied the categorical approach rather than rely on PSR | Even assuming error, Nieves cannot show his prior convictions would fail the categorical inquiry, so no prejudice | Court: No plain error; substantive analysis shows convictions qualify, so no affected substantial rights |
| Whether the District Court failed to consider mitigating § 3553(a) factors (mental health, special education, upbringing) | Court did not adequately weigh mitigating personal history and mental issues | Court expressly considered § 3553(a) factors at sentencing and referenced relevant history | Court: No plain error; sentencing transcript shows consideration and no requirement to mention every factor individually |
Key Cases Cited
- United States v. Turbides-Leonardo, 468 F.3d 34 (1st Cir.) (waiver/forfeiture of objections to PSR)
- United States v. Olano, 507 U.S. 725 (1993) (plain-error review framework)
- United States v. Delgado-López, 837 F.3d 131 (1st Cir.) (declining to decide waiver where objection meritless)
- United States v. Castro-Vazquez, 802 F.3d 28 (1st Cir.) (categorical-approach guidance)
- United States v. Fish, 758 F.3d 1 (1st Cir.) (offensive touching too broad for "crime of violence")
- Gonzalez v. Duenas-Alvarez, 549 U.S. 183 (2007) (burden to show state statute reaches beyond federal definition)
- Beckles v. United States, 137 S. Ct. 886 (2017) (residual clause in Sentencing Guidelines not void under Johnson)
- United States v. Duong, 665 F.3d 364 (1st Cir.) (authority of guideline commentary)
- United States v. Piper, 35 F.3d 611 (1st Cir.) (Article 406 conviction treated as controlled-substance predicate)
- United States v. Dávila-González, 595 F.3d 42 (1st Cir.) (plain-error review of sentencing objections)
- United States v. Lozada-Aponte, 689 F.3d 791 (1st Cir.) (no requirement to mention every § 3553(a) factor)
- United States v. Serrano-Mercado, 784 F.3d 838 (1st Cir.) (plain-error elements)
- United States v. Davis, 676 F.3d 3 (1st Cir.) (prejudice requirement for showing plain error in predicate classification)