UNITED STATES OF AMERICA, Appellee, v. JOSÉ MULERO-VARGAS, t/n José Angel Mulero-Vargas, Defendant, Appellant.
No. 19-1941
United States Court of Appeals For the First Circuit
February 2, 2022
Hon. Francisco A. Besosa, U.S. District Judge
Before Howard, Chief Judge, Selya and Gelpí, Circuit Judges.
APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF PUERTO RICO
José B. Vélez Goveo and Vélez & Vélez Law Office on brief for appellant.
W. Stephen Muldrow, United States Attorney, Mariana E. Bauzá-Almonte, Assistant United States Attorney, Chief, Appellate Division, and Robert P. Coleman III, Assistant United States Attorney, on brief for appellee.
The district court sentenced Merced-García to a within-guidelines eighteen-month term of immurement on the drug-trafficking count and a consecutive upwardly variant 144-month term of immurement on the firearms count. Merced-García appealed, and we affirmed his sentence. See United States v. Merced-García, 24 F.4th 76 (1st Cir. 2022) [No. 19-2033, slip op. at 12]. We assume the reader‘s familiarity with that opinion.
For his part, Mulero was sentenced to a within-guidelines twenty-four-month term of immurement on the drug-trafficking count and a consecutive upwardly variant 144-month term of immurement on the firearms count. Like Merced-García, Mulero appealed his sentence. He argues that his sentence on the firearms count is procedurally infirm and that his aggregate sentence is substantively unreasonable. We address these arguments in turn.
In his most loudly bruited plaint, Mulero says (in effect) that he only was responsible for one machinegun. Building on this foundation, Mulero asserts that the district court committed procedural error by predicating the upwardly variant portion of his aggregate sentence, in material part, on his responsibility for two machineguns.
Mulero‘s claim that the district court erred by holding him responsible for two machineguns was not raised below. Therefore, our review is for plain error.
The record confers a patina of plausibility on Mulero‘s plaint. The presentence investigation report states in one section that, after searching the residence shared by Mulero and Merced-García, Puerto Rico police officers discovered a stockpile of firearms and ammunition, including one machinegun. The officers then requested and received permission to search Merced-García‘s automobile, presumably parked outside the residence, and discovered the second machinegun within the vehicle. Citing this discrepancy, Mulero argues that the district court erred in holding him responsible for the second machinegun.
But there is more to the story. The district court conducted a joint change-of-plea hearing for Mulero and Merced-García. During the ensuing colloquy, the court noted that both men were charged “with possession of a firearm in furtherance of a drug trafficking crime in that, about May 3, 2017, here in Puerto Rico, both of you, aiding and abetting each other knowingly possessed” seven listed weapons — a list that included both machineguns. The court then asked, “[I]s that what you did?” Mulero replied with an unequivocal “Yes.” And at another point, he indicated his assent to the prosecutor‘s assertion that both machineguns were found “[i]n the living room, bathroom, and bedroom” of the dwelling.
Viewed against this backdrop, Mulero stumbles over the first and second steps of the plain-error test: we cannot find that the sentencing court committed error, much less a clear or obvious error.1 We explain briefly.
To constitute clear or obvious error, the claimed “error must be ‘indisputable’ in light of controlling law.” Rabb, 5 F.4th at 101 (quoting United States v. Jones, 748 F.3d 64, 70 (1st Cir. 2014)). The putative error here is far from indisputable. Although there is an inconsistency in the record as to the whereabouts of the second machinegun, there is no room for doubt that Mulero possessed it. Even if we assume — favorably to Mulero — that the second machinegun was nestled in the vehicle, our case law makes pellucid “that possession can be either actual or constructive.” United States v. Nuñez, 852 F.3d 141, 145 (1st Cir. 2017).
Constructive possession is present “when a person knowingly has the power and intention at a given time to exercise dominion and control over an object, either directly or through others.” United States v. Williams, 717 F.3d 35, 39 (1st Cir. 2013) (quoting United States v. Ocampo-Guarin, 968 F.2d 1406, 1409 (1st Cir. 1992)). “[T]he requisite knowledge and intention can be inferred from the circumstances.” United States v. Ridolfi, 768 F.3d 57, 62 (1st Cir. 2014).
Here, both Mulero and Merced-García were, by their own admission, aiding and abetting each other in the distribution of cocaine. So, too, both men admitted that they aided and abetted each other in the possession of firearms to further their cocaine-distribution venture. It follows, we think, that the district court had a solid basis for concluding that the two men were jointly in possession of the whole stockpile of guns, ammunition, and drugs (including the second machinegun, whether or not that machinegun was located in Merced-García‘s vehicle). Put another way, the district court — on these facts — was entitled to draw a reasonable inference that Mulero, at the very least, constructively possessed the second machinegun. Accordingly, there was no error, let alone a clear or obvious one.
This leaves Mulero‘s claim that his 168-month aggregate sentence is substantively unreasonable. The main thrust of this claim is that the court “plac[ed] too much weight on the nature and circumstances of the case and an insufficient amount of weight [on his] history and characteristics.” Our review of this claim of error is for abuse of discretion. See Holguin-Hernandez v. United States, 140 S. Ct. 762, 766 (2020); United States v. Bruno-Campos, 978 F.3d 801, 808 (1st Cir. 2020).
A sentence is substantively reasonable as long as the sentencing rationale is plausible and the result is defensible. See United States v. Clogston, 662 F.3d 588, 593 (1st Cir. 2011); United States v. Martin, 520 F.3d 87, 96 (1st Cir. 2008). Here, the district court cogently articulated its sentencing rationale.
After establishing the guideline sentencing ranges for each count, the court proceeded to consider the sentencing factors limned in
This rationale easily clears the plausibility hurdle. And Mulero‘s “disagreement with the district court‘s balancing of the [relevant sentencing] factors does not constitute a valid ground for appeal.” Merced-García, 24 F.4th at 81 [No. 19-2033, slip op. at 9]; see United States v. Ruperto-Rivera, 16 F.4th 1, 6 (1st Cir. 2021).
The challenged sentence also represents a defensible result. As we stated in Merced-García, the offenses of conviction were serious. See Merced-García, 24 F.4th at 82 [No. 19-2033, slip op. at 11]. Mulero, aiding and abetting Merced-García, possessed seven firearms, including two machineguns, over 1,600 rounds of ammunition, and more than 200 grams of cocaine. Given the gravity of the offenses, the sentencing outcome falls well within the “broad universe” of defensible sentences. United States v. Rivera-Morales, 961 F.3d 1, 21 (1st Cir. 2020).
There is one loose end. The plea agreement set certain parameters for sentencing recommendations. At the disposition hearing, the parties — acting within those parameters — offered their sentencing recommendations: the government asked for an aggregate incarcerative term of 144 months and Mulero asked for an aggregate incarcerative term of 114 months. The district court spurned both recommendations and imposed an aggregate incarcerative term of 168 months.
On appeal, Mulero makes a conclusory argument that his aggregate sentence is substantively unreasonable because the sentencing court disregarded the sentencing recommendations adumbrated in the plea agreement and subsequently advocated by the parties. Mulero, though, is milking a spent cow. The plea agreement‘s sentence recommendations were merely precatory. See
We need go no further. For the reasons elucidated above, the challenged sentence is
Affirmed.