United States v. Diaz-RiveraUnited States v. Diaz-Rivera
Alex Omar Rosa-Ambert, on brief for appellant.
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.
TORRUELLA, Circuit Judge. Defendant-Appellant Henry Díaz-Rivera (“Díaz“) pled guilty to one count of possession with intent to distribute cocaine, in violation of
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 foilwrapping, which was later determined to contain heroin. When Díaz exited the car, the responding officers saw that he was carrying a firearm, and they arrested him. While searching Díaz incident to the arrest, officers seized from his person a .40-caliber Glock pistol and a magazine containing a total of ten rounds of ammunition. Agents also seized: eighty-six small plastic bags containing less than fifty grams of cocaine; five cellular phones; $572 in cash; a ledger containing names and numbers; a selector switch “chip” used to modify the Glock pistol to fire automatically; forty-one rounds of .40-caliber ammunition; eight rounds of 7.62-caliber ammunition; a part of a firearm and other accessories described as a slide-back plate; 100 empty plastic vials; four red empty aluminum wrappings; and two small empty plastic zip-lock baggies.
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 useand/or possession of a firearm.4 Additionally, the PSR described Díaz‘s history of substance abuse, which spanned approximately fourteen years and consisted of the use of marijuana, Percocet, Xanax, and cocaine. Díaz filed several objections to the PSR, most of which are not relevant to this appeal. Díaz initially objected to the inclusion of some arrests for which there were no available or translated documents that verified them, and he also objected to some arrests as too “remote to the instant offense.” Díaz ultimately withdrew the objections at the sentencing hearing.
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
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 Ricoarrests, and asserted that the fact that some of those cases had not been re-filed after having been dismissed on probable cause or speedy trial grounds “should not be taken against [Díaz].” The court denied Díaz‘s request and confirmed that “one of the things that [it] took into consideration” was the fact that the crimes charged during Díaz‘s arrests were either dismissed or no probable cause was found. Defense counsel again generally objected to the sentence as both procedurally and substantively unreasonable. This timely appeal followed.
II. Discussion
Díaz challenges both the procedural and substantive reasonableness of his sentence. In sentencing appeals, appellate
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).According to Díaz, Marrero-Pérez stands for the proposition that sentencing courts “may not factor unproven charges in their Sentencing and Judgment without finding, by a preponderance of the evidence, that the conduct underlying those charges took place.”
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.At the sentencing hearing, after the court imposed the sentence, Díaz objected to it as both procedurally and substantively
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
On the other hand, Marrero-Pérez does recognize that in some cases “a reasonable person might . . . assign some weight toa collection of arrests,” id. at 22, and that “serious prior crimes and recidivist behavior” are “proper considerations at sentencing,” id. at 23 (citing
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 placedundue weight on either the arrests themselves or their underlying conduct. See id. at 24. The court simply recited the offenses with which Díaz had been charged and the disposition of those charges as that information appeared in the PSR. We have not assigned error “in the district court‘s brief recitation of procedural facts . . . adumbrated in the unchallenged [PSR], notwithstanding that those facts related to a dismissed charge.” Miranda-Díaz, 942 F.3d at 41; see also Rodríguez-Reyes, 925 F.3d at 563 (“To the extent [the defendant] is arguing that the court errs in merely reciting an arrest record, he is flatly wrong.” (citing United States v. Mercer, 834 F.3d 39, 49-50 (1st Cir. 2016))). A sentencing court can indeed rely on the undisputed information contained in the PSR at sentencing as “generally, a PSR bears sufficient indicia of reliability.”6 United States v. Rondón-García, 886 F.3d 14, 25 (1st Cir. 2018) (quoting United States v. Olivero, 552 F.3d 34, 40 (1st Cir. 2009)). “[N]othing in our precedent forbids a sentencing court‘s mere mention of the undisputed facts surrounding a dismissed charge as part of a broader assessment of the defendant‘s troubling trajectoryregarding his serial encounters with the criminal justice system.” Miranda-Díaz, 942 F.3d at 41.
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;
Díaz also claims that the district court erred in failing to consider “the correlation between [Díaz‘s] addiction and his Criminal History” as a mitigating factor. Because Díaz did not raise this argument below in objecting to the procedural reasonableness of his sentence, we review his claim for plain error. See Soto-Soto, 855 F.3d at 448. Under the plain error standard, the defendant must show: “(1) that an error occurred (2) which was clear or obvious and which not only (3) affected the defendant‘s substantial rights, but also (4) seriously impaired the fairness, integrity, or public reputation of judicial proceedings.” Rodríguez-Reyes, 925 F.3d at 563 (quoting United States v. Duarte, 246 F.3d 56, 60 (1st Cir. 2001)). Díaz‘s claim fails at the first step as his contention is belied by the record.
“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
Next, Díaz argues that the district court lacked a plausible sentencing rationale for imposing the upward variance because its reasoning was based, in part, on the incidence of crime in Puerto Rico and not on Díaz‘s individual circumstances. He avers that the district court imposed an upwardly variant sentence because it found “the nonthreatening process at State level . . . insufficient[ly] dissuasive.” Díaz contends, consequently, that the sentence was “a direct . . . critique on the Puerto Rico Judicial system.” We have held, however, that “the incidence of particular crimes in the relevant community appropriately informs and contextualizes the relevant need for deterrence” and, thus, a sentencing court may consider “the incidence and trend lines of particular types of crime in the affected community.” United States v. Flores-Machicote, 706 F.3d 16, 23 (1st Cir. 2013); see also United States v. Rivera-González, 776 F.3d 45, 50-51 (1st Cir. 2015) (finding that the sentencing court appropriately considered “the high incidence of violent crime in Puerto Rico“). Certainly, assessment of “community-based considerations” alone does not relieve the sentencing court of its obligation to base its sentencing determination on case- and offense-specific factors. United States v. Ortiz-Rodríguez, 789 F.3d 15, 19-20 (1st Cir. 2015) (quoting Rivera-González, 776 F.3d at 50). And indeed, the district court here did not base its sentence solelyon Puerto Rico‘s crime rate. Rather, as we have explained, the district court also made clear that it was taking into account all of 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);Bermúdez-Meléndez, 827 F.3d at 165 (finding that the district court does not need to explain why it rejected a parties’ joint sentence recommendation). The court‘s choice to impose a sentence other than one recommended by the parties is not, in itself, error.
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.
In light of this and the sentencing court‘s explanation of the sentence, we are satisfied that the court has articulated a plausible sentencing rationale and arrived at a defensible result, see Martin, 520 F.3d at 98. No more is required.
III. Conclusion
For the foregoing reasons, Díaz‘s sentence is affirmed.
Affirmed.