Case Information
*2 TORRUELLA, Circuit Judge
. This case concerns a challenge to the sentence imposed on José Juan Arroyo-Maldonado ("Arroyo- Maldonado") for fraud. Arroyo-Maldonado challenges the reasonableness of his above Guidelines sentence of one hundred and twenty months of imprisonment. After careful consideration, we affirm his sentence.
I. Background
Because Arroyo-Maldonado pleaded guilty, our discussion of the facts is drawn from the change-of-plea colloquy, the Pre- Sentence Investigation Report ("PSR"), and the transcript of the sentencing hearing. See United States v. Cintrón-Echautegui, 604 F.3d 1, 2 (1st Cir. 2010). From August 2010 to May 2011, Arroyo- Maldonado, while incarcerated for other charges, led a scheme to defraud financial institutions. Arroyo-Maldonado used prepaid cell phones to contact co-defendants outside the Bayamón Penitentiary and instructed them to prepare false checks for deposit at financial institutions in order to fraudulently purchase motor vehicles or fraudulently pay off loan accounts. After the checks were deposited, Arroyo-Maldonado would have other co-defendants acquire the vehicles at car dealerships or from individuals selling them through newspaper classified advertisements. Arroyo- Maldonado's actions were in violation of 18 U.S.C. § 1344(1) and (2) and 18 U.S.C. § 1349.
Arroyo-Maldonado pleaded guilty on March 19, 2013, pursuant to a plea agreement. The parties recommended that Arroyo- Maldonado be sentenced at the lower end of the applicable Guidelines Sentencing Range ("GSR") if his criminal history category was IV or higher (it was later calculated to be VI). As part of the agreement, the parties stipulated to the Guidelines calculations. The Guidelines provided that the base offense level, pursuant to U.S.S.G. § 2B1.1(a)(2), was seven. A twelve-point increase was added pursuant to U.S.S.G. § 2B1.1(b)(H) because the stipulated amount of loss attributed to Arroyo-Maldonado was at least $200,000, but less than $400,000; a two-point increase was added under U.S.S.G. § 2B1.1(b)(2)(A) because Arroyo-Maldonado's offense involved ten or more victims; and an additional two-point increase was added because Arroyo-Maldonado was identified as an organizer, leader, manager, or supervisor of a criminal activity, pursuant to U.S.S.G. § 3B1.1(c). Finally, Arroyo-Maldonado received a three-point reduction for acceptance of responsibility pursuant to U.S.S.G. § 3E1.1(a) and (b), which resulted in a total offense level of twenty.
On August 20, 2013, the court sentenced Arroyo-Maldonado to one hundred and twenty months imprisonment, and granted eighteen months credit for time served. The applicable GSR was seventy to eighty-seven months of imprisonment, a fine of $7,500 to $1 million, and a supervised release term of not more than five years. *4 At the sentencing hearing, a probation officer revealed that Arroyo-Maldonado's criminal history had twenty-five points, which is a criminal history category VI, and the court noted, "[t]his is the first 25 point [white collar] case that I have [had] in my career." The court also explained that "[t]he judge reacts to what is on the record. What I have on the record is a gentleman that has the worst white collar crime history that I have seen in my career. The worst. I have never had anybody who has 25 points on white collar." This timely appeal followed. [1]
II. Analysis
Arroyo-Maldonado alleges that the district court erred in imposing a sentence of one hundred and twenty months, which is above the applicable GSR.
This court's review of sentencing decisions involves evaluation of both procedural and substantive reasonableness. Arroyo-Maldonado contends that the district court committed a significant procedural error by failing to consider the relevant *5 sentencing factors and by giving undue weight to the nature and circumstances of the offense. Arroyo-Maldonado also argues that the district court erred procedurally by mistakenly believing that the statute he pleaded guilty to contained a mandatory minimum sentence of one hundred and twenty months. In support of this contention, he highlights a portion of the sentencing hearing where the court stated, "[t]he court has also taken into consideration the plea agreement between the parties; however, it finds that a statutory sentence at the lower end is more adequate considering his criminal history and considering his nefarious white crime incidents." Arroyo-Maldonado avers that 18 U.S.C. §§ 1344 and 1349 contain no mandatory minimum sentence.
As to the alleged substantive errors, Arroyo-Maldonado suggests that the district court's sentence was unreasonable because it gave greater weight to his criminal history and the punitive component of a sentence than to "other factors such as rehabilitation measures." Furthermore, he argues that the district court sentenced him outside of the properly calculated GSR of seventy to eighty-seven months solely based on punitive factors, which makes the sentence substantively unreasonable. He therefore contends that the court failed to abide by its obligation under the Supreme Court's decision in Kimbrough v. United States, 552 U.S. 85, 101 (2007), to impose a sentence that is "sufficient, but not *6 greater than necessary." Accordingly, Arroyo-Maldonado argues that his sentencing decision must be vacated and remanded.
We review sentencing decisions under the advisory
Guidelines for "reasonableness, regardless of whether they fall
outside or inside the applicable GSR." United States v. Turbides-
Leonardo,
In reviewing sentences imposed under the advisory
Guidelines, "[t]he review process is bifurcated: we first determine
whether the sentence imposed is procedurally reasonable and then
determine whether it is substantively reasonable." United States
v. Clogston, 662 F.3d 588, 590 (1st Cir. 2011). Examples of
procedural errors identified by the Supreme Court include "failing
to calculate (or improperly calculating) the Guidelines range,
treating the Guidelines as mandatory, failing to consider the
§ 3553(a) factors, selecting a sentence based on clearly erroneous
facts, or failing to adequately explain the chosen sentence --
including an explanation for any deviation from the Guidelines
range." Gall,
The district court exercises broad discretion in weighing
the different sentencing factors and we remain deferential to its
sentencing determinations. See United States v. Colón-Rodríguez,
696 F.3d 102, 108 (1st Cir. 2012); see also United States v.
Vargas-Dávila,
18 U.S.C. § 3553 requires a sentencing court to consider
a variety of potential sentences and explain in open court the
reasons for a particular sentence it imposes. See Medina-Villegas,
Arroyo-Maldonado's sentence of one hundred and twenty
months of imprisonment was neither procedurally flawed nor
substantively unreasonable. Because Arroyo-Maldonado did not raise
any objections to his sentence below, we review for plain error.
Fernández-Hernández,
Furthermore, the district court adequately explained its
deviation from the GSR. At the sentencing hearing, the district
court explained that "[t]he judge reacts to what is on the record.
What I have on the record is a gentleman that has the worst white
collar crime history that I have seen in my career. The worst. I
have never had anybody who has 25 points on white collar." A
review of the PSR and the sentencing hearing transcript
demonstrates
the
district
court's
consideration
of
Arroyo-Maldonado's criminal history as a significant reason for
deviating above the GSR. See Jiménez-Beltre, 440 F.3d at 519
(noting that it is permissible to infer a court's reasoning by
comparing the parties' arguments and the PSR to what the judge
actually did). Ultimately, the district court's reasoning for
deviating above the GSR is clearly based on Arroyo-Maldonado's
criminal history. See Martin,
Arroyo-Maldonado's claim that the district court
mistakenly believed that the statute prescribed a mandatory minimum
is not supported by the record. As the Government correctly notes,
the district court never made any reference to a mandatory minimum
throughout the sentencing hearing, while referencing the statutory
maximum sentence of thirty years several times throughout the
proceeding. During the hearing, the court stated that "it finds
that a statutory sentence at the lower end is more adequate
considering his criminal history and considering his nefarious
white crime incidents." This statement alone is insufficient to
indicate that the district court felt constrained by a mandatory
minimum sentence. Furthermore, the record as a whole contains no
indication that the district court mistakenly believed that it was
bound by a mandatory minimum sentence. Accordingly, the district
court's sentencing of Arroyo-Maldonado did not suffer from any
procedural flaws. Therefore, we next consider whether the sentence
is substantively reasonable. See Gall,
In considering the totality of the circumstances,
including the extent of the district court's variance from the
*12
Guidelines, the district court's one hundred and twenty month
sentence is substantively reasonable and therefore does not
constitute plain error. Arroyo-Maldonado's argument that the
district court erred substantively by giving greater weight to his
criminal history and the punitive component of a sentence than to
rehabilitative factors is not supported by this court's precedent.
See Clogston, 662 F.3d at 593 ("A sentencing court is under a
mandate to consider a myriad of relevant factors, but the weighting
of those factors is largely within the court's informed
discretion."); see also Martin,
Arroyo-Maldonado's suggestion that the district court sentenced him above the applicable GSR based solely on punitive reasons is meritless. Although at the sentencing hearing the court noted, "[p]unitive wise, I raised it," this isolated statement does not indicate that the sole basis for the district court's sentence was for punitive purposes. Indeed, as discussed above, the district court's discussion of the relevant § 3553(a) factors *13 demonstrates that it considered additional factors such as Arroyo-Maldonado's need for psychological treatment, [2] the deterrence aspect of punishment, and Arroyo-Maldonado's criminal history. Put simply, Arroyo-Maldonado's argument amounts to a disagreement with the district court's weighing of the different sentencing factors, and does not establish plain error in the district court's sentence. See Clogston, 662 F.3d at 593 ("The appellant in effect seeks to substitute his judgment for that of the sentencing court. We cannot countenance such a substitution.").
*14 The district court's one hundred and twenty month sentence is neither procedurally flawed nor substantively unreasonable. Here, like in Clogston, "[t]his was a defensible result, and the court stated a plausible rationale for reaching it. No more was required." Id.
III. Conclusion
In determining Arroyo-Maldonado's sentence, the district court considered all sentencing factors, adequately explained its sentence and deviation from the GSR, and imposed a reasonable sentence in the totality of the circumstances. Accordingly, the district court's imposition of a one hundred and twenty month sentence was neither procedurally flawed nor substantively unreasonable. Therefore, the district court's sentence is affirmed.
AFFIRMED.
Notes
[1] We note that even though Arroyo-Maldonado's plea agreement had a waiver-of-appeal clause, his appeal is properly before us. Here, Arroyo-Maldonado waived his right to appeal to the extent he was subsequently sentenced in accordance with the terms and conditions set forth in the plea agreement. The sentence ultimately imposed was not in accordance with these terms and conditions, which recommended a sentence toward the lower end of the applicable GSR of seventy to eighty-seven months. Thus, as the Government correctly concedes, the waiver-of-appeal does not bar the instant appeal. See United States v. Murphy-Cordero, 715 F.3d 398, 400 (1st Cir. 2013) (holding that a waiver-of-appeal clause only precludes appeals falling within its scope).
[2] Although not raised by the parties below, we note that any
attempt to challenge the sentence on the basis of Tapia v. United
States,