853 F.3d 591
1st Cir.2017Background
- In 2012 Román‑Díaz participated in a drug‑distribution conspiracy in Ponce, Puerto Rico; he acted as an enforcer and stored drugs and weapons; a high‑school student (Ruiz‑Vega) was later murdered by a ring member.
- A federal indictment charged Román‑Díaz with conspiracy to distribute cocaine base and other drugs (count 1) and possession of a firearm in furtherance of a drug‑trafficking crime (count 2); he pled guilty to both counts under a plea agreement.
- The plea agreement stipulated to 112–196 grams of crack (yielding an agreed offense level) and recommended consecutive 60‑month terms on each count, with the parties asking the federal sentence to run concurrently with an undischarged 1,000‑year state sentence tied to the Ruiz‑Vega murder.
- The PSR recommended applying a murder cross‑reference (USSG §2A1.1), raising the offense level and—together with a CHC III recommendation—producing a guideline range of 360–480 months on count 1.
- At sentencing the district court rejected the murder cross‑reference, recalculated the drug base offense level (total offense level 23) but placed Román‑Díaz in CHC IV (adding points for the state convictions), producing a GSR of 70–87 months; the court sentenced him to 87 months on count 1 and the 60‑month mandatory term on count 2 (consecutive to count 1) and ordered both federal terms consecutive to the undischarged state sentence.
- Román‑Díaz appealed, arguing (1) the court “departed” to a higher CHC without Rule 32(h) notice and an opportunity to be heard, and (2) the district court erred in ordering the federal sentence consecutive to the undischarged state sentence.
Issues
| Issue | Plaintiff's Argument (Román‑Díaz) | Defendant's Argument (Gov't) | Held |
|---|---|---|---|
| Whether the district court "departed" to a higher criminal history category without Rule 32(h) notice or an opportunity to be heard | The court increased CHC from III to IV without Rule 32(h) notice and denied him a meaningful opportunity to be heard | The CHC determination was part of calculating the guideline range (not a "departure"); defendant and counsel knew of the state convictions and had opportunity to be heard | No departure occurred; Rule 32(h) notice not required for CHC determination; defendant had meaningful opportunity to comment; no plain error |
| Whether the district court abused its discretion by ordering the federal sentence consecutive to an undischarged state sentence | The consecutive order was improper or required additional procedural safeguards/analysis under USSG §5G1.3 | The court had discretion under 18 U.S.C. §3584 and USSG §5G1.3(d) (subsections (b)/(c) inapplicable because the state convictions were not relevant conduct); the court considered §3553(a) factors and the GSR | No abuse of discretion; subsection (d) applied and the court permissibly imposed consecutive sentences after considering §3553(a) and the guideline range |
Key Cases Cited
- Booker v. United States, 543 U.S. 220 (2005) (sentencing guidelines advisory; review for reasonableness)
- Gall v. United States, 552 U.S. 38 (2007) (appellate review for abuse of discretion; procedural and substantive reasonableness framework)
- Irizarry v. United States, 553 U.S. 708 (2008) (distinguishing departures from variances; notice rules)
- Santini‑Santiago v. United States, 846 F.3d 487 (1st Cir. 2017) (Rule 32(h) as a vestige of mandatory‑guidelines era; variances need not trigger general notice requirement)
- Carrasco‑de‑Jesús v. United States, 589 F.3d 22 (1st Cir. 2009) (district court discretion to impose consecutive or concurrent sentence with undischarged state term; §3553(a) consideration)
- Llanos‑Falero v. United States, 847 F.3d 29 (1st Cir. 2017) (application of USSG §5G1.3(d) when state term is not relevant conduct)
- Ziskind v. United States, 471 F.3d 266 (1st Cir. 2006) (limits on discretion to choose consecutive vs. concurrent sentences)
- Duarte v. United States, 246 F.3d 56 (1st Cir. 2001) (plain‑error standard articulated for preserved errors)
- Vega‑Santiago v. United States, 519 F.3d 1 (1st Cir. 2008) (counsel should not be surprised by garden‑variety sentencing considerations)