UNITED STATES оf America, Appellee, v. Oscar DELGADO-SÁNCHEZ, Defendant, Appellant.
No. 15-2262
United States Court of Appeals, First Circuit.
February 17, 2017
KAYATTA, Circuit Judge.
Mainon A. Schwartz, Assistant United States Attorney, with whom Rosa Emilia Rodríguez-Vélez, United States Attorney, and Mariana E. Bauzá-Almonte, Assistant United States Attorney, Chief, Appellate Division, were on brief, for appellee.
Before HOWARD, Chief Judge, TORRUELLA and KAYATTA, Circuit Judges.
KAYATTA, Circuit Judge.
Oscar Delgado-Sánchez (“Delgado“) pled guilty to one count of being a prohibited person in possession of a firearm in violation of
I. Background
In March 2015, police obtained a search warrant for Delgado‘s residence after they observed him carrying an AK-47 outside of his home. When officers arrived to execute the search, Delgado allowed them inside, confessed that he had the firearm, and told the officers where they could find an additional magazine and ammunition. The police arrested Delgado and seized the weapon, which was capable of automatic fire and which was loaded with one magazine containing twenty-nine rounds of ammunition. They also seized one more magazine and sixteen additional rounds of ammunition. Delgado pled guilty to being a prohibited person in possession of a firearm in violation of
The U.S. Probation Office‘s presentence investigation report assigned Delgado a criminal history score of seven, the sum of the criminal history points attributable to three prior convictions. The first conviction, worth three criminal history points under U.S.S.G. § 4A1.1(a), arose out of a
Delgado‘s third conviction, worth one criminal history point pursuant to U.S.S.G. § 4A1.1(c), followed a guilty plea to three counts of robbery under Artiсle 198 and three counts of unlawfully discharging or pointing a firearm in violation of Article 5.15. According to the presentence report, “certified court documents” revealed that these offenses arose out of two separate robberies and a shooting in Yabucoa on March 24, 2009. First, Delgado “robbed a cash register, $413[ ] in cash and between 12 and 15 cigarette boxes from [a store] through the use of violence and/or intimidation in the immediate presence of [a person]. He also robbed $177 in cash belonging to [another person] through the use of violence and/or intimidation.” Second, at 4:15 P.M., Delgado, “in possession of a black 9mm firearm,” robbed a business of all of the proceeds from the day‘s sales and some horsе products totaling about $800. During the robbery, Delgado asked an individual victim where he could find the safe and instructed that individual to “hit the safe in order to open it and give me all the money.” Finally, “[a]ccording to certified court documents,” Delgado “shot 4 to 5 rounds into the air from a black 9mm firearm” at 5:00 P.M.
The presentence report also alerted the parties and the court that probation was aware that Delgado had been arrested on at least four other occasions.
First, the report indicated that Delgado had been arrested in San Lorenzo in July 2008 and charged with two counts of violating the Puerto Rico Weapons Law for possessing and carrying without a license a loaded weapon with an obliterated seriаl number. These charges, probation reported, were dismissed in a preliminary hearing upon a finding of no probable cause.
Second, the report stated that Delgado was arrested in Yabucoa in November 2008 on grounds that (1) he committed two violations of the Puerto Rico Controlled Substances Law, and (2) he possessed two loaded firearms, one of which he used to rob a bar of cash and goods “through the use of violence and intimidation” in violation of the robbery statute and the Weapons Law. The Controlled Substances Law charges were dismissed for lack of probable cause, and, because Delgado was detained for more than thirty days without a preliminary hearing, the robbery and firearms charges were dismissed рursuant to Rule 64(n)(5) of the Puerto Rico Rules of Criminal Procedure,
Third, the report detailed another November 2008 arrest in Yabucoa on charges that Delgado violated two provisions of the Weapons Law by carrying two loaded firearms without a license, one of which had an obliterated serial number. These charges were dismissed under the Com
Fourth and finally, the report alerted the parties that probation was aware that Delgado was facing pending charges stemming from a December 2013 arrest. In that case, Delgado was charged with discharging or pointing a firearm in violation of Article 5.15 and unlicensed carrying/using of a firearm in violation of Article 5.04 оf the Weapons Law, along with Aggravated Robbery in violation of Article 190(e) of the Puerto Rico Penal Code. The report noted that Delgado‘s trial on these charges was scheduled for early September 2015.
In a separate section of the presentence report, probation concluded that Delgado should be subject to U.S.S.G. § 2K2.1(a)(3), which provides that when an individual is convicted of an offense involving certain types of firearm and was previously convicted of a felony “crime of violence,” his base offense level is twenty-two. Probation did not specify which of Delgado‘s previous convictions served as the basis for the “crime of violence” designation. Subtracting three levels based on Delgado‘s demonstrated acceptance of responsibility, probation proposed that Delgado‘s total offense level should be set at nineteen.
In the nearly two months that passed between the date he was served with the presentence report and the date he appeared for sentencing, Delgado lodged no objections to the presentence report. Rather, he submitted a sentencing memorandum limited to urging the court to engage in a downward variance on account of a chronic medical condition (the nature of which is not germane to this appeal). When Delgado appeared before the district court for sentencing on September 24, 2015, his attorney informed the court thаt he had nothing to say on Delgado‘s behalf “other than what I have expressed in my sentencing memorandum.” Delgado, too, declined the court‘s offer to speak on the record.
The district court determined that the presentence report‘s calculations were correct: Delgado‘s base offense level was twenty-two “because Mr. Delgado has been convicted of possessing a firearm which is described in Title 26, United States Code, Section 5845(a) after having been convicted for a crime of violence, robbery and brandishing a firearm during the robbery.” With adjustments for acceptance of responsibility, his total offense level was nineteen. And he was in Criminal History Category IV with a criminal history score of eight—the seven рoints described above plus one additional point that Delgado earned when a jury convicted him at some point in the intervening months on the charges arising from his December 2013 arrest. The advisory guidelines, the court found, thus recommended a sentence of forty-six to fifty-seven months’ imprisonment, plus a fine and a term of supervised release.
The district court then proceeded to consider the sentencing factors in
II. Discussion
A. “Crime of Violence”
Delgado‘s lead argument is that the district court erred in calculating his guidelines sentencing range because it improperly classified one of his prior convictions as a conviction for a “crime of violence” under U.S.S.G. § 2K2.1(a)(3). That provision advises courts sentencing defendants convicted of certain firearms offenses to assign a base offense level of twenty-two if “the defendant committed any part of thе instant offense subsequent to sustaining one felony conviction of . . . a crime of violence.” A felony “crime of violence” is “any offense under federal or state law, punishable by imprisonment for a term exceeding one year, that . . . has as an element the use, attempted use, or threatened use of physical force against the person of another.”
Delgado did not raise this argument at sentencing. Indeed, he raised no objections at all at sentencing. For this reason, we are faced at the outset with a dispute concerning whether, and by what standard, we may review Delgado‘s arguments on appeal.
Ordinarily, a party who fails to lodge an objection or raise an argument below is deemed to have forfeited the argument and faces plain error review. See, e.g., United States v. Sanchez-Berrios, 424 F.3d 65, 74 (1st Cir. 2005). But where a party “intentional[ly] relinquish[es] or abandon[s] . . . a known right” and that right is waivable, he may not revive his waived argument on appeal at all. United States v. Olano, 507 U.S. 725, 732-34 (1993) (quoting Johnson v. Zerbst, 304 U.S. 458, 464 (1938)). We treat differently waived and forfeited claims because “waiver implies an intention to forgo a known right, whereas forfeiture implies something less deliberate—say, oversight, inadvertence, or neglеct in asserting a potential right.” United States v. Eisom, 585 F.3d 552, 556 (1st Cir. 2009). The government asks us to deem waived and therefore not reviewable Delgado‘s challenge to the presentence report‘s designation (and the district court‘s decision to adopt it) that § 2K2.1(a)(3) applies. Delgado admits that he failed to preserve the arguments he advances on appeal, but nevertheless urges us to review the district court‘s decision for plain error.
We have noted that “a powerful case for waiver” is presented where a defendant
Still, “[w]here a defendant‘s claim would fail even if reviewed for plain error, we have often declined to decide whether the defendant‘s failure to raise the issue below constituted waiver or mere forfeiture.” United States v. Acevedo-Sueros, 826 F.3d 21, 24 (1st Cir. 2016) (citing United States v. Aguasvivas-Castillo, 668 F.3d 7, 13-14 (1st Cir. 2012)); see also, e.g., United States v. Delgado-Lopez, 837 F.3d 131, 135 n.2 (1st Cir. 2016); United States v. Arsenault, 833 F.3d 24, 28 & n.2 (1st Cir. 2016). Because Delgado‘s arguments fail under plain error review, we decline to decide whether Delgado‘s failure to object to the рresentence report constitutes a waiver. Instead, applying plain error review, we ask whether Delgado can show “(1) that an error occurred (2) which was clear or obvious and which not only (3) affected [his] substantial rights, but also (4) seriously impaired the fairness, integrity, or public reputation of the judicial proceedings.” Arsenault, 833 F.3d at 29 (alteration in original) (quoting United States v. Ruiz-Huertas, 792 F.3d 223, 226 (1st Cir. 2015)).
To determine whether a defendant‘s prior convictions were for crimes of violence, we apply the “categorical approach” set forth by the Supreme Court in Taylor v. United States, 495 U.S. 575, 600-02 (1990). In short, we “look to the elements of the prior convictions as defined by the relevant statute[s]—not to the particular facts underlying the convictions.” United States v. Castro-Vázquez, 802 F.3d 28, 35 (1st Cir. 2015) (citing Descamps v. United States, 133 S.Ct. 2276, 2283 (2013)). If the state (or, as in this case, the Commonwealth of Puerto Rico) defines thе crime of conviction broadly enough that it may be committed without the “use, attempted use, or threatened use of physical force against the person of another,”
If the statute under which the defendant was previously convicted is divisible, meaning “it comprises multiple, alternative versions of a crime not all of which
The district court‘s explanation for applying § 2K2.1(a)(3) to Delgado was that he had previously been convicted of “a crime of violence, robbery and brandishing a firearm during the robbery.” But prior to Delgado‘s conviction in this case, he had never been convicted of any single offense whose elements could be said to include both the forceful taking of property and the brandishing of a firearm. See
We disagree. True, the district court could have been more explicit when it identified the predicate offense that it viewed as justifying the application of § 2K2.1(a)(3). But we think it reasonably clear, based on the way the court described the crime, that the court was referring to the several convictions that arose out of Delgado‘s March 2009 arrest for aiming a firearm at a person and announcing and carrying out a robbery. As a result of that arrest, Delgado pled guilty to one count of robbery in violation of Article 198 and three counts of discharging or pointing a firearm in violation of Article 5.15. We encourage district courts to identify predicate crimes of violence with care and precision, but we do not find any error here, where the record makes plain our task on appeal.
Our discussion begins and ends with Delgado‘s 2009 convictions under Article 5.15,2 which provides, in relevant part:
(a) Any person shall be found guilty of a felony . . . who, except in cases of self defense or defense of third parties, or actions in the performance of official duties or legitimate sports activities:
(1) Willfully fires any weapon in a public place or any other place where there is any person who could be harmed, even though he/she causes no harm whatsoever to any person, or
(2) intentionally, although without malice aforethought, points a weapon towards a person, even though he/she causes no harm whatsoever to any person.
We are unpersuaded by Delgado‘s contention that Article 5.15 is indivisible. Where a statute is indivisible but lists multiple, alternative means of satisfying an element, one or more of which can be achieved without violence, the crime defined therein is not categorically a “crime of violence” even if the defendant committed it by violent means identified in the statute. Cf. Mathis, 136 S.Ct. at 2251. A divisible statute, on the other hand, “list[s] elements in the alternative, and thereby define[s] multiple crimes“; if one of those crimes is categorically violent, it can serve as a predicate offense so long as the defendant‘s conviction under the statute was for that version of the crime. Id. at 2249. To determine whether statutory alternatives are “elements” or “means,” we look to case law interpreting the statute, unless the “statute on its face . . . resolve[s] the issue.” See id. at 2256. When the statute and the case law do not provide a clear answer, courts may look tо other relevant documents for the purpose of determining what elements must be proved to secure a conviction under the statute. id. at 2256-57.
Neither party points us to any case law interpreting Article 5.15, but the statute‘s plain text and structure strongly suggest that it is divisible, providing two alternative sets of elements for two different crimes. The statute sets a criminal penalty for two entirely distinct courses of conduct with entirely distinct required mental states. The statute‘s structure makes clear that a defendant is guilty of “discharging” but not “pointing” when he willfully fires a weapon in a public place but does not aim the weapon at anyone, and that a defendant is guilty of “pointing” but not “discharging” when he intentionally aims a firearm at another person but does not fire it.
The Cоmmonwealth‘s pattern jury instructions for Article 5.15 suggest the same. In the English-language translation Delgado has provided,3 judges are tasked with determining which crime the government charged under the statute and describing only that crime to the jury. The instructions then provide the judge with a menu of options, one of which is “[d]ischarging a weapon in a public place or in another location where a person could have suffered harm, even if no person was harmed,” and another of which is “[i]ntentionally, even if without malice, aiming a firearm towards a person, even if no person was harmed.” The judge is directed to choose whether the criminal act charged is “aiming” or “discharging” and instruct the jury about the applicable “essential element[]” accordingly. Delgado contends that the instructions show the statute to be indivisible, but they do not; rather, to the extent they lend any insight, they confirm our reading by providing alternative ver
Having determined the statute is divisible, we proceed to determine whether either version of the crime provided under Article 5.15 is categorically a “crime of violence.” The elements of the offense described in Article 5.15(a)(2) (intentionally pointing a weapon towards a person) might comprise one. The government argues that to point a firearm at someone intentionally—when not done in self-defense, defense of another, or in the performance of official duties or legitimate sports activities—is, in all cases, to threaten the use of physical force against that person. Delgado, in opposition, contends, first, that Puerto Rico‘s decision to explicitly provide in the statute that pointing under Article 5.15 can be committed without malice aforethought shows that the crime can be committed unintentionally or without the threatened use of force. He argues, second, that pointing is not categorically a crime of violence because a person can be convicted under this version of the offense even where, for instance, the victim is unaware that a gun is being pointed at him, or is aware оf the pointing but knows that the offender is joking or the gun is not loaded. This, he argues, does not constitute use, attempted use, or threatened use of force against the person of another.
Delgado‘s first argument is easily dismissed. The definition of a crime of violence does not include malice as an element; intentionality suffices. See, e.g., United States v. Tavares, 843 F.3d 1, 13 (1st Cir. 2016) (when performed with a dangerous weapon, “‘the intentional and unjustified use of force upon the person of another, however slight‘—constitutes a crime of violence under § 4B1.2(a)(1) of the Guidelines“); United States v. Whindleton, 797 F.3d 105, 113-16 (1st Cir. 2015) (same), cert. dismissed, 137 S.Ct. 23 (2016), and cert. denied, 137 S.Ct. 179 (2016).
Delgado‘s second argument, however, is not so easily dismissed. The challenge is how to define the phrase “threatened use of physical force” in U.S.S.G. § 4B1.2(a)(1). One might read the phrase narrowly to requirе “communicat[ing] intent to inflict harm,” see Threat, Black‘s Law Dictionary (10th ed. 2014) (definition #1), in which case pointing a firearm at a person without that person‘s knowledge—arguably a method of committing the offense described in Article 5.15(a)(2)—would not qualify. Or, one might read the phrase as also including the creation of some “thing that might well cause harm.” Id. (definition #3). If this broader definition of “threat” is the one we should be using to interpret “threatened use of force” in the guidelines, a violation of Article 5.15(a)(2) would seem to fit. It would make no difference, for the purposes of determining whether pointing “might well cause” the use of force against the victim, whether the person at whom the firearm is aimed is aware of the threat that has been created.
Ultimately, wе need not definitively answer this question. Delgado points to no precedent (nor are we aware of any) that construes U.S.S.G. § 4B1.2(a)(1) as excluding the latter definition of a “threatened use of physical force against the person of another.” See also United States v. Cortez-Arias, 403 F.3d 1111, 1116 (9th Cir. 2005) (observing that “‘threatened use of physical force against the person of another’ must logically include . . . acts suggest-ing that physical force against [a] person
We are left to decide only whether any of Delgado‘s convictions under Article 5.15 was for intentionally pointing a firearm at another person. The presentence report‘s findings, which the district court adopted as its own findings of fact with no objection from Delgado, state that Delgado pled guilty to three counts of violating Article 5.15 and that “certified court documents” show Delgado aimed a firearm at a person as he announced his intent to rob her. But the presentence report fails to identify which certified court documents it is referring to, and it does not attach or include any so-called Shepard documents. Whether the presentence report is describing factual conduct or describing the actual offense charged or admitted by Delgado remains unclear.
Delgado, however, makes no claim that, had the district court examined any Shepard documents, it would have discovered that the presentence report inaccurately characterized the charged offense. Therefore, even assuming that the district court clearly erred by failing, sua sponte, to require the government to clear up the problematic ambiguity in the presentence report, Delgado‘s challenge falls short on the third prong of plain error review. That prong, in this context, requires him to make a showing he does not even attempt to make: that he was actually prejudiced by the absence of the Shepard documents describing the offense to which he pled. Serrano-Mercado, 784 F.3d at 848.
B. Other Alleged Procedural Errors
Delgado claims his sentence is procedurally unreasonable on five other bases, all of which, for the reasons already stated, we review for plain error. See United States v. Cortés-Medina, 819 F.3d 566, 569 (1st Cir. 2016), cert. denied, 137 S.Ct. 410 (2016). His first few arguments concern a second presentence report that was docketed on the day of his sentencing. This second report was identical to the presentence report Delgado received two months earlier in all but four respects. First, it reclassified the charges stemming from Delgado‘s December 2013 аrrest as a prior conviction worth one criminal history point (rather than as pending charges) because between the time the first presentence report was filed and the date of sentencing, a jury had convicted Delgado on those charges. Second, the report added the point associated with that conviction to the criminal history score previously calculated, raising Delgado‘s score from seven to eight. Third, the
Delgado argues that it was error for him to discover only on the date of sentencing that an additional criminal history point had been inserted into a new presentence report upon which the court would rely. He also argues that the district court erred because it failed to ask him at sentencing whether he had discussed the new presentence report with his attorney.
We doubt that any error occurred here at all in light of the fact that the new report appears to have been prepared after sentencing. During the sentencing colloquy, the district court observed that it lacked medical records confirming that Delgado suffered from a medical condition. Delgado‘s counsеl informed the court that he had brought with him to the hearing a record from an emergency visit Delgado had made to Ryder Hospital in Bayamón, Puerto Rico. Delgado‘s counsel delivered the medical record to the court and agreed, in open court, to furnish a copy to probation. The new report, in turn, noted that “[d]uring sentencing, defense counsel provided the Court and the undersigned with a copy of the defendant‘s record at the Emergency Department of the Ryder Hospital” and summarized the contents of the medical record delivered at sentencing. In other words, the new presentence report refers retrospectively to the sentencing hearing, so it seems unlikely that the report was available to the district court at sentencing.
Moreover, aside from the new report‘s recalculation of the criminal history points attributable to the first Yabucoa conviction (which we will discuss momentarily), the new report differed from the old one only by including a reference to medical records that Delgado‘s counsel asked be added to the presentence report and by confirming a new conviction that had occurred between the production of the first report and the sentencing hearing. The conviction was discussed at sentencing, and Delgado does not dispute either that it did in fact occur or that it was worth one criminal history point. Even if one were to assume error here, prejudice would be lacking.
Delgado does challenge the inconsistent treatment of his criminal history score from one presentence report to the other, and he disputes the district court‘s calculation of his criminal history score at sentencing. These claims, and the array of others Delgado makes concerning his criminal history score, all boil down to an argument that he was assigned eight criminal history points “when he had 7 at most.”
We need not determine whether Delgado‘s correct criminal history score is seven or eight. We have previously held that a court does not commit plain error when it incorrectly calculates and applies a criminal history score that nonetheless results in the defendant being placed in the correct Criminal History Categоry, because a Criminal History Category recommends one guidelines sentencing range in all cases, irrespective of the defendant‘s criminal history score. See United States v. Albanese, 287 F.3d 226, 229 (1st Cir. 2002) (per curiam). Delgado concedes on reply that by any calculation, he would have been placed in Criminal History Category IV. “Thus, even assuming error occurred, it was not prejudicial because it did not affect [Delgado‘s] sentence.” Id.
For his fourth argument that his sentence is procedurally unreasonable, Delgado claims that it was error for the district
Delgado‘s final procedural unreasonableness argument is that the district court plainly erred in placing weight on Delgado‘s dismissed weapons charges. We confronted a similar argument in Cortés-Medina. In applying plain error review, we noted that, in light of the Supreme Court‘s holding in United States v. Watts, 519 U.S. 148 (1997) (per curiam), “the Supreme Court might well hold that a sentencing court may not accord any significance to a record of multiple arrests and charges without convictions unless there is adequate proof of the conduct upon which the arrests or charges were predicated.” Cortés-Medina, 819 F.3d at 570. But we also observed that “our own precedent contains dicta, repeated several times, positing that a series of arrests ‘might legitimately suggest a pattern of unlawful behavior even in the absence of any convictions.‘” Id. (quoting United States v. Lozada-Aponte, 689 F.3d 791, 792 (1st Cir. 2012)). We “caution[ed] district courts against placing weight on such speculation,” but because the state of the law was unclear, we found that the district court did not plainly err. Id.
The district court here sentenced Delgado eight months before we issued our decision in Cortés-Medina, so, like the district court in that case, it did not have any reason to know that we would discourage district courts from placing weight on unsubstantiated charges. Still, plain error review requires us to evaluate whether the law is clear now, at the time we are conducting appellate review, regardless of whether the law was unclear аt the time of sentencing. See Henderson v. United States, 133 S.Ct. 1121, 1127 (2013). Delgado urges us to find that, in the wake of Cortés-Medina, inferring that past arrests suggest a pattern of criminal behavior is a clear error of law.
We find that it is not. Cortés-Medina held only that the law on this question was unclear. True, Cortés-Medina certainly warns district courts that, when the occasion presents itself, we very well may sustain a preserved challenge to a sentence that treats arrests as proof of unlawful conduct or evidence that a defendant is likely to recidivate. But Delgado‘s plain-error appellate challenge provides no such occasion.
C. Substantive Unreasonableness
Finally, Delgado contends that his sentence is substantively unreasonable as a result of the combined effects of the alleged errors discussed above, and because the district court did not provide an explanation sufficient for the sentence it was imposing to be reviewed effectively on appeal. Having already found that the district court did not plainly err in its calculations and evaluation of the sentencing factors under
III. Conclusion
For the foregoing reasons, we affirm Delgado‘s sentence in all respects.
Docket No. 15-1164-cv
August Term, 2015
United States Court of Appeals, Second Circuit.
Argued: February 2, 2016
Question Certified: April 13, 2016
Certified Question Answered: December 20, 2016
Decided: February 16, 2017