UNITED STATES OF AMERICA, Appellee, v. ANDY G. MORALES-VÉLEZ, Defendant, Appellant.
No. 21-1264
United States Court of Appeals For the First Circuit
May 3, 2024
Before Barron, Chief Judge, Montecalvo and Rikelman, Circuit Judges.
APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF PUERTO RICO [Hon. Francisco A. Besosa, U.S. District Judge]
Ricardo A. Imbert-Fernández, Assistant United States Attorney, with whom W. Stephen Muldrow, United States Attorney, Mariana E. Bauzá-Almonte, Assistant United States Attorney, Chief of Appellate Division, and Gregory B. Conner, Assistant United States Attorney, were on brief, for appellee.
I. BACKGROUND1
On September 18, 2019, without a warrant, law enforcement agents entered and searched Morales‘s home. Although the parties contest the circumstances that led to the search and
A grand jury indicted Morales on four counts: (1) possession of a firearm and ammunition as a convicted felon in
The plea agreement also contained a clause requiring Morales to forfeit the items seized during his arrest, but, at Morales‘s request, the clause excluded the $20,000 found in his car. Morales filed a pre-sentencing motion to return property pursuant to Rule 41(g), alleging that the $20,000 represented legitimate lottery winnings and accordingly was not subject to forfeiture. The government opposed the motion, arguing that it already had commenced a separate civil forfeiture proceeding against the money, and the district court denied Morales‘s motion on that basis.
At the sentencing hearing, the district court began by recounting the charge against Morales and explaining that the
Turning to Morales‘s offense conduct, the court noted that a “modern machine gun can fire more than a thousand rounds [per minute]” and is capable of killing “dozens of people within a matter of seconds.” The court also opined that it could “conceive of few weapons that are more dangerous than machine guns,” explained that “outside of a few Government-related uses, machine guns exist largely on the black market,” and concluded that, “[i]n short, machine guns are highly dangerous and unusual weapons that are not typically possessed by law-abiding citizens for lawful purposes.” Addressing the ammunition found in Morales‘s vehicle, the court described the four magazines containing 125 rounds of ammunition. The court also observed that the type of ammunition was known as “radically invasive projectile” rounds or “RIP” rounds.4
Before sentencing concluded, Morales renewed his objection to the district court‘s denial of his Rule 41(g) motion, arguing that the criminal case was still the appropriate venue through which to consider Morales‘s claims. Morales also emрhasized that in a civil forum he had no right to counsel and would have difficulty navigating the forfeiture proceedings as a pro se litigant, given his impending imprisonment. The district court explained that because the civil forfeiture action was ongoing, it would continue to deny the Rule 41(g) motion. However, as the presiding judge in the civil case as well, the district court allowed an attorney from the Office of the Federal Public Defender to serve as counsel to Morales in the forfeiture action. This timely appeal followed.
II. DISCUSSION
A. Variant Sentence
It is unclear whether Morales, in arguing that the district court failed to provide an adequate justification for his upwardly variant sentence, lodges a procedural reasonableness challenge, a substantive reasonableness challenge, or both. The government treats him as having raised both types of challenges,
1. Procedural Reasonableness
A sentencing judge is charged with “stat[ing] in opеn court the reasons for its imposition of the particular sentence.”
Here, the guidelines do not provide a sentencing range; rather, the guideline recommendation is the statutory minimum sentence. See United States v. Vargas-García, 794 F.3d 162, 166 (1st Cir. 2015). In the case of pоssession of a firearm in furtherance of a drug trafficking crime, the statutory minimum sentence is sixty months, making Morales‘s 120-month sentence of imprisonment twice as long as the guideline recommendation. See
The district court provided three bases for Morales‘s sentence: the machine gun possession; the amount of ammunition, including the fact that Morales possessed four magazines; and the type of ammunition. Morales contends that none of these factors, alone or in combination, could support a variance of such magnitude. We disagree.
But Morales is wrong that the guideline applicable here, section 2K2.4(b), accounts for the nature of machine guns in the recommended sentence. Crucially, in all three cases cited by Morales, the defendаnts pleaded guilty to violations of
Section 2K2.1 of the guidelines, which does not apply to Morales‘s offense, employs a definition of “firearm” that explicitly includes machine guns. As we explained in a previous decision:
In pertinent part, [section 2K2.1(a)(4)(B)] directs a base offense level of twenty if the “offense involved” a “firearm that is described in
26 U.S.C. § 5845(a) ” and the defendant was a “prohibited person” at the time оf the offense. In turn,26 U.S.C. § 5845(a) includes “machinegun” in its definition of “firearm,” andsection 5845(b) defines a machine gun as “any weapon which shoots . . . automatically more than one shot, without manual reloading, by a single function of the trigger.”
Rivera-Berríos, 968 F.3d at 135. Thus, concerns about “the dangers posed by machine guns and the defendant‘s lack of need for such a weapon” are relevant to all machine gun crimes sentenced under section 2K2.1, and “we have [had] no reason to believe that [those concerns] were not factored into the mix when the Sentencing Commission set the base offense level for the offense of conviction.” Carrasquillo-Sánchez, 9 F.4th at 59 (quoting Rivera-Berríos, 968 F.3d at 136).
By contrast, Morales pleaded guilty to a violation of
Critically,
Further, as Morales concedes, the district court did not rely exclusively on the nature of machine guns to support its upward variance but also based its sentence on the amount and type of ammunition found with the gun. For that additional reason, this case is different from Rivera-Berríos, 968 F.3d at 136, García-Pérez, 9 F.4th at 54-55, and Carrasquillo-Sánchez, 9 F.4th at 62, where we found no other legally valid basis for the upward variance. See United States v. Santa-Otero, 843 F.3d 547, 550 (1st Cir. 2016) (upholding a sentence where the district court “did not rely solely upon [defendant‘s] possession of the machine gun in imposing the variant sentence” but also “cited to specific features of the ammunition that [defendant] possessed“).
Morales does not contest the general principle that large amounts of ammunition can be a basis for an upward variance. Rather, citing our decision in Rivera-Berríos, he contends as a factual matter that 125 rounds of ammunition is not a “large cache of ammunition” and is “entirely consistent with simple possession of a machine gun.” Rivera-Berríos, 968 F.3d at 135.
But given our precedent, Morales has failed to demonstrate an abuse of discretion on this point as well. We have previously affirmed sentences where the district court relied on
Finally, Morales argues that his upward variance could not be based on the type of bullets he possessed, as there is no evidence in the record that “RIP” bullets are “morе lethal, dangerous, or inhumane than other ordinary commercially available bullets.” On this point, we agree. At sentencing, the only information the district court had on the nature of RIP bullets was the prosecutor‘s statement that the bullets “are designed to
The government alleges that Morales “made no challenge to the government‘s statement that these were particularly lethal rounds or the court‘s acceptance of that point” below, and that he raises this objection for the first time on appeal. As a result, the government argues, Morales has forfeited any challenge to this basis for his sentence. Morales counters that he preserved this argument when his counsel statеd at the close of sentencing that he “is no different than other people that have machine guns and high capacity magazines.” However, “[a] general objection to the procedural reasonableness of a sentence is not sufficient to preserve a specific challenge to any of the sentencing court‘s particularized findings.” United States v. Soto-Soto, 855 F.3d 445, 448 n.1 (1st Cir. 2017). Therefore, this statement, which did not mention RIP ammunition at all, was not “sufficiently specific to call the district court‘s attention to the asserted”
Thus, the district court‘s explanation, on the record here, was “sufficient to satisfy the statutory mandate.” See Díaz-Lugo, 963 F.3d at 156-57.
2. Substantive Reasonableness
The substantive reasonableness inquiry “take[s] into account the totality of the circumstances, including the extent of any variance from the Guidelines range.” Soto-Soto, 855 F.3d at 450 (quoting Gall, 552 U.S. at 51). As we have explained, “[t]here is no one reasonable sentence in any given case but, rather, a universe of reasonable sentencing outcomes.” United States v. Clogston, 662 F.3d 588, 592 (1st Cir. 2011). Accordingly, we must determine if Morales‘s 120-month sentence “falls within this broad universe.” United States v. Rivera-Morales, 961 F.3d 1, 21 (1st Cir. 2020). We conclude that it does.
The “hallmarks of a substantively reasonable sentence” are well established: “a plausible sentencing rationale and a defensible result.” United States v. Rodríguez-Cruz, 997 F.3d
The district court also reached a defensible result. “[T]he length of the sentence does not make it per se unreasonable. ‘The district court evaluated the factors provided under
Offering an analogy to sentences governed by section 2K2.1, a guideline that did not apply in his case, Morales argues that a sentence of sixty months adequately accounts for his particular characteristics and the nature of his offense. Morales сontends that, if his identical conduct was analyzed under section 2K2.1 -- including the nature of his fully automatic pistol, prior conviction for a drug offense, and the fact that the weapon was possessed in furtherance of a drug trafficking crime -- he would have been subject to a guideline sentencing range of fifty-one to sixty-three months.
This comparison misses the mark. When applying the guidelines, we begin with the underlying offense of conviction, not the underlying conduct. See U.S.S.G. § 1B1.1(a)(1). As was true here, a defendant‘s underlying conduct can be charged in different ways. Cf. Blockburger v. United States, 284 U.S. 299, 304 (1932) (establishing that a defendant may be chаrged with multiple offenses based on the same underlying conduct as long as “each [offense] requires proof of a fact which the other does not“). Morales pleaded guilty to a violation of
“In sum, a sentence should be left intact so long as it is procedurally sound and there is ‘a plausible sentencing rationale and a defensible result.‘” Contreras-Delgado, 913 F.3d at 244 (quoting Martin, 520 F.3d at 96). Finding neither procedural nor substantive error on this record, we affirm Morales‘s sentence.
B. Forfeiture Claim
Morales also appeals the district court‘s refusal to considеr his Rule 41(g) motion to return $20,000 in cash seized from his vehicle. Namely, he contends that the civil forfeiture action did not divest the district court of either the authority or responsibility to consider his motion. Additionally, he argues that a contrary ruling is especially concerning for indigent defendants, particularly those who are incarcerated, because it would essentially force them to navigate the complex world of civil
Rule 41(g) provides:
A person aggrieved by an unlawful search and seizure of prоperty or by the deprivation of property may move for the property‘s return. The motion must be filed in the district where the property was seized. The court must receive evidence on any factual issue necessary to decide the motion. If it grants the motion, the court must return the property to the movant, but may impose reasonable conditions to protect access to the property and its use in later proceedings.
Although we have previously explained that a post-conviction Rule 41(g) motion will be treated as a civil complaint for equitable relief, see United States v. Giraldo, 45 F.3d 509, 511 (1st Cir. 1995) (per curiam), we have not yet had cause to consider how to treat a motion by the defendant in an active criminal case, like this one, where the government
However, subsequent developments have mooted the parties’ dispute on the forfeiture issue. On January 4, 2023, Morales and the government reached a settlement in the civil forfeiture action. See Consent Judgment, In re $20,000.00 in U.S. Currency, No. 20-1259 (D.P.R. Jan. 4, 2023). Pursuant to this settlement, the government returned $12,000 to Morales in a “Consent Judgment, which is firm, final[,] and unappealable.” Id. at 2. Consequently, Morales no longer has a legally cognizable interest in the disposition of his Rule 41(g) motion. See Harris v. Univ. of Mass. Lowell, 43 F.4th 187, 191 (1st Cir. 2022) (“A party can have no legally cognizable interest in the outcome of a case if the court is not capable of providing any relief which will redress the alleged injury.” (quoting Gulf of Me. Fishermen‘s All. v. Daley, 292 F.3d 84, 88 (1st Cir. 2002))). This aspect of his appeal is therefore moot. See Chafin v. Chafin, 568 U.S. 165, 172 (2013) (“There is . . . no case or controversy, and a suit
III. CONCLUSION
For all these reasons, we affirm.
Notes
(c)(1)(A) Except to the extent that a greater minimum sentence is otherwise provided by this subsection or by any other provision of law, any person who, during and in relation to any crime of violence or drug trafficking crime (including a crime of violence or drug trafficking crime that provides for an enhanced punishment if committed by the use of a deadly or dangerous weapon or device) for which the person may be prosecuted in a court of the United States, uses or carries a firearm, or who, in furtherance of any such crime, possesses a firearm, shall, in addition to the punishment provided for such crime of violence or drug trafficking crime--
(i) be sentenced to a term of imprisonment of not less than 5 years;
(ii) if the firearm is brandished, be sentenced to a term of imprisonment of not less than 7 years; and
(iii) if the firearm is discharged, be sentenced to a term of imprisonment of not less than 10 years.
(B) If the firearm possessed by a person convicted of a violation of this subsection--
(i) is a short-barreled rifle, short-barreled shotgun, or semiautomatic assault weapon, the person shall be sentenced to a term of imprisonment of not less than 10 years; or
(ii) is a machinegun or a destructive device, or is equipped with a firearm
silencer or firearm muffler, the person shall be sentenced to a term of imprisonment of not less than 30 years.(Emphases added).