UNITED STATES OF AMERICA, Appellee, v. HENRY DÍAZ-RIVERA, Defendant, Appellant.
No. 18-1461
United States Court of Appeals For the First Circuit
April 20, 2020
Before Torruella, Dyk,* and Thompson, Circuit Judges.
APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF PUERTO RICO [Hon. Francisco A. Besosa, U.S. District Judge]
Antonio L. Pérez-Alonso, Assistant United States Attorney, with whom W. Stephen Muldrow, United States Attorney, and Mariana E. Bauzá-Almonte, Assistant United States Attorney, Chief, Appellate Division, on brief for appellee.
I. Background
Because Díaz pled guilty, we draw the relevant facts from the change-of-plea colloquy, the unchallenged portions of the Presentence Investigation Report (“PSR“), and the sentencing hearing transcript. See United States v. Fernández-Santos, 856 F.3d 10, 14 n.1 (1st Cir. 2017).
A. Facts Surrounding the Offense
On March 24, 2017, Puerto Rico police officers who were patrolling an area in Toa Alta, Puerto Rico observed a vehicle parked on the side of the road. Upon approaching the vehicle, the officers asked the driver -- later identified as Díaz -- for his driver‘s license and car registration, which he refused to provide. Díaz then attempted to drive away twice but was eventually stopped. During the intervention, an officer noticed that Díaz was holding a small, red-colored zip-lock baggie containing aluminum foil
B. Procedural History
On March 30, 2017, a federal grand jury sitting in the District of Puerto Rico returned a six-count indictment charging Díaz with possession with intent to distribute cocaine, in violation of
For Count One, the final PSR, like the plea agreement, calculated a total offense level of ten, which resulted from a base offense level of twelve and a two-level decrease for acceptance of responsibility. Díaz had two prior Puerto Rico convictions: possession of an unlicensed firearm and illegal possession of a firearm (a machinegun). Accordingly, the PSR determined that he had a criminal history category of III, which coupled with the total offense level of ten, yielded a guidelines sentencing range (“GSR“) of ten to sixteen months of imprisonment. For Count Three, the PSR found that the guideline sentence was the minimum term of imprisonment required by statute, which was five years pursuant to
The PSR also listed ten arrests -- all in Puerto Rico -- which did not lead to convictions.3 Two of those arrests related to illegal drug possession, and two others related to the use
In his sentencing memorandum, Díaz acknowledged that he “ha[d] been living for several years, including the day of the arrest in the instant case, with the illness of addiction to controlled substances, including heroin and cocaine, among others.” He similarly acknowledged that he had “previous convictions at state level and arrests at state level.” Díaz
C. Sentencing
At the sentencing hearing, defense counsel re-emphasized Díaz‘s battle with drug addiction and requested a total sentence of 120 months of imprisonment. In accordance with the plea agreement, the Government urged the district court to sentence Díaz to a total of twelve years of imprisonment.
As to Count One, the district court adopted the PSR‘s calculations of the total offense level, the criminal history category, and the GSR (ten to sixteen months of imprisonment). As to Count Three, the court noted that the guideline sentence was the statutory minimum term of imprisonment of sixty months, to be served consecutively to the term of imprisonment for Count One. The court also pointed out that the firearm involved in the offense had been modified to shoot automatically. It then listed Díaz‘s prior arrests, reciting the PSR‘s explanation of their disposition.
The court then stated that it had considered the sentencing factors set forth in
After the court pronounced the sentence, defense counsel objected to it as procedurally and substantively unreasonable. He elaborated that he objected to the “findings” and “analysis” of United States v. Flores-Machicote, 706 F.3d 16 (1st Cir. 2013), and asserted that “certainty of punishment ha[s] a deterrent effect, but not the amount of time.” He further asked the court to reconsider its sentence, specifically requesting that it impose the Government‘s requested sentence instead. He acknowledged that Díaz had “a criminal history,” referring to the Puerto Rico
II. Discussion
Díaz challenges both the procedural and substantive reasonableness of his sentence. In sentencing appeals, appellate review is bifurcated. United States v. Ruiz-Huertas, 792 F.3d 223, 226 (1st Cir. 2015). We must first examine claims of procedural error, such as “failing to calculate (or improperly calculating) the Guidelines range, treating the Guidelines as mandatory, failing to consider the
A. Procedural Reasonableness
Díaz first challenges the procedural reasonableness of his sentence, arguing that, in fashioning the sentence, the district court erroneously relied on his unadjudicated prior arrests. He asserts that his upwardly variant sentence was based on the court‘s “impression of the nonaction of the state court in prosecuting [Díaz]” and on it “equating arrests quantity with possibility of reci[divism].” In that sense, he posits, this appeal is “no different” from that which led to our recent decision in United States v. Marrero-Pérez, 914 F.3d 20 (1st Cir. 2019).
Generally, we review procedural reasonableness challenges under “a multifaceted abuse-of-discretion standard whereby ‘we afford de novo review to the sentencing court‘s interpretation and application of the sentencing guidelines, assay the court‘s factfinding for clear error, and evaluate its judgment calls for abuse of discretion.‘” United States v. Arsenault, 833 F.3d 24, 28 (1st Cir. 2016) (quoting Ruiz-Huertas, 792 F.3d at 226). When a defendant does not raise a procedural objection at sentencing, however, we review for plain error. United States v. Sosa-González, 900 F.3d 1, 4 (1st Cir. 2018) (citing United States v. Reyes-Rivera, 812 F.3d 79, 85 (1st Cir. 2016)).
Díaz urges us to apply the abuse of discretion standard because he “adequately objected to the sentence‘s unreasonableness” below. The Government counters that Díaz waived his claim on appeal because the objections he made to the prior arrests are different from the arguments he presents on appeal. And even if the claim is not waived, the Government argues that we should review it for plain error because Díaz‘s objection was too general.
Díaz‘s primary quarrel with the procedural reasonableness of his sentence is that the district court improperly relied on his history of prior arrests, which had not been adjudicated, to impose an upward variance. Such reliance, he contends, is prohibited under Marrero-Pérez.
In Marrero-Pérez, we reviewed under plain error an upward departure imposed largely on the basis of prior arrests that did not result in convictions and most of which were not supported by reliable information that the underlying conduct had actually occurred. 914 F.3d at 22-24. We held that “an error occurs when a district judge relies on an arrest report, without some greater indicia of reliability that the conduct underlying the arrest took place.” Id. at 24. As we recently recognized in United States v. Colón-Maldonado, No. 18-1388, 2020 WL 1081661, at *6 n.8 (1st Cir. March 6, 2020), the analysis in Marrero-Pérez also relied on
Even if we assume that Marrero-Pérez applies both in the upward variance and departure contexts, we find that Díaz‘s reliance on that case is still inapposite. We merely decided there that an error occurs when a sentencing court “equate[s] arrest with guilt,” Marrero-Pérez, 914 F.3d at 23, or when it “relies on an arrest report, without some greater indicia of reliability that the conduct underlying the arrest took place,” id. at 24 (emphasis added). The Court in Marrero-Pérez was more concerned with a sentencing court‘s reliance on arrests alone and “other dubious inferences” that may arise from that reliance. See id. at 23.
On the other hand, Marrero-Pérez does recognize that in some cases “a reasonable person might . . . assign some weight to
Contrary to Díaz‘s contention, the record does not suggest that the district court “equate[d] [his] arrest[s] with guilt.” Marrero-Pérez, 914 F.3d at 23. Nor does the record reflect that the court relied solely on Díaz‘s arrests or placed
Moreover, the court clarified that the disposition of the crimes charged related to the arrests was “one of the things that [it] took into consideration.” It also considered Díaz‘s personal characteristics -- that he was thirty-two years old, had a seventh grade education, was unemployed, and had a history of drug use; the nature of the instant offense, which included the seizure of drugs, drug paraphernalia, cash, ammunition, and a firearm modified to fire automatically; the counts being dismissed as part of the plea agreement, which the court viewed as involving serious charges; and his two prior convictions involving violations similar to the instant offense of conviction (unlicensed possession of a firearm and ammunition and illegal possession of a firearm).7 Thus, we cannot discern from the record that the court crafted an upwardly variant sentence based on its reliance on, or by impermissibly assigning undue weight to, an arrest record or the conduct that gave rise to it. Accordingly, we find this part of Díaz‘s procedural unreasonableness challenge unavailing.
“Under
Finally, Díaz asserts that his 180-month sentence is substantively unreasonable. We review this claim for abuse of discretion as Díaz preserved it by objecting both after the court pronounced the sentence and at the end of his sentencing hearing. United States v. Vázquez-Martínez, 812 F.3d 18, 26 (1st Cir. 2016) (citing United States v. Del Valle-Rodríguez, 761 F.3d 171, 176 (1st Cir. 2014)).
Díaz argues that the district court failed to consider all mitigating circumstances and that it improperly weighed the
To the extent Díaz argues that the sentence is substantively unreasonable simply because the court varied upwardly from the sentences the parties proposed in the plea agreement and at sentencing, he is wrong. See United States v. Ubiles-Rosario, 867 F.3d 277, 294 (1st Cir. 2017) (finding that the district court is not bound by the parties’ recommendations);
Finally, although Díaz seems to suggest that a lower sentence would have been sufficient but not greater than necessary, we have repeatedly held that, after the district court calculates the GSR, “sentencing becomes a judgment call,” United States v. Politano, 522 F.3d 69, 73 (1st Cir. 2008) (quoting Martin, 520 F.3d at 92), and “[t]here is no one reasonable sentence in any given case but, rather, a universe of reasonable sentencing outcomes,” Clogston, 662 F.3d at 592 (citing Martin, 520 F.3d at 92). In this case, where Díaz, who had been formerly convicted of a felony, was found in possession of a dangerous weapon, ammunition, and controlled substances, in only the latest occurrence in a pattern of convictions involving firearms and arrests involving both firearms and controlled substances, we cannot say that the 180-month sentence imposed, though upwardly variant, falls outside the “universe of sentencing outcomes,” see id. Our conclusion is strengthened by the fact that Díaz himself initially agreed to (and requested) an upwardly variant sentence, albeit of 120 months of imprisonment.
III. Conclusion
For the foregoing reasons, Díaz‘s sentence is affirmed.
Affirmed.