UNITED STATES OF AMERICA, Aрpellee, v. LINCOLN GABRIEL PUPO, Defendant, Appellant.
No. 19-1505
United States Court of Appeals For the First Circuit
April 20, 2021
Hon. Aida M. Delgado-Colon, U.S. District Judge
APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF PUERTO RICO
Before Thompson, Lipez, Circuit Judges, and Laplante,* District Judge.
Andrew S. McCutcheon, Assistant Federal Public Defender, with whom Eric Alexander Vos, Federal Public Defender, and Franco L. Perez-Redondo, Supervisor, Appeals Division, Assistant Federal Public Defender, were on brief, for appellant.
Gregory B. Conner, Assistant United States Attorney, with whom W. Stephen Muldrow, United States Attorney, and Marianа E. Bauza-Almonte, Assistant United States Attorney, Chief, Appellate Division, were on brief, for appellee.
April 20, 2021
* Of the District of New Hampshire, sitting by designation.
Background1
On January 15, 2018, two women returned to their parked car after enjoying a meal at a Longhorn Steakhouse in Guaynabo, Puerto Rico. As they settled into the car, Pupo approached the driver‘s side window and ordered the pair to step out. Pupo made his intentions clear, announcing that he was “assault[ing]” them and that they should exit the vehicle immediately. Then he upped the ante, telling them to get out of the car or else he would shoot
them (though, unbeknownst to the pair, Pupo did not have a gun). The two women complied, handed over the keys, and allowed Pupo to drive off with the car. Soon thereafter, local law enforcement located the vehicle and arrested Pupo. The two women identified Pupo as their assailant. On January 18, 2018, a federal grand jury charged Pupo with one count of carjacking, in violation of
Leading up to his sentencing hearing, both probation‘s pre-sentence investigation and defense counsel‘s investigation revealed that Pupo had a tough upbringing and suffered from extensive substance abuse and mental health issues. Pupo came from a dysfunctional home and grew up in several public housing projects where violence pervaded. Living in an environment with rampant drug use, he began using several controlled substances at an early age. In 2011, а Puerto Rico Department of
mental health and drug treatment, neither of which he had received up to that point.
The PSR and Pupo‘s sentencing memorandum addressed his difficult upbringing, substance abuse, and mental health issues in detail. The two documents, however, diverged as to the calculation of the Guidelines sentencing range (“GSR“). In his sentencing memorandum, Pupo calculated a GSR of thirty-seven to forty-six months’ incarceration, using a CHC of III (even though the parties did not stipulate to a CHC level) and relying on the plea agreement‘s stipulated TOL of nineteen. Based on these calculations, he sought a sentence of forty months’ incarceration. The PSR, however, calculated a total offense level of twenty-one and a CHC of V, yielding a GSR of seventy to eighty-seven months of imprisonment. Both the plea agreement and the PSR‘s calculations included a base offense level of 20 under U.S.S.G. § 2B3.1, a two-point enhancement for the carjacking offense under U.S.S.G. § 2B3.1(b)(5), and a three-point deduction for acceptance of responsibility under U.S.S.G. § 3E1.1. But the PSR also included an additional two-point “threat of death” enhancement under U.S.S.G. § 2B3.1(b)(2)(F).2 Neither party objected to the
PSR‘s calculations. In his sentencing memorandum, however, Pupo did argue that although technicаlly correct, the PSR‘s CHC designation substantially over-represented the seriousness of his criminal history and likelihood of recidivism and requested a “downward departure” to category III.
At sentencing, defense counsel reiterated his request for a downward departure after describing the way in which the carjacking was a direct result of Pupo‘s long-standing mental health and substance abuse issues, including his recent and first-ever accurate diagnosis of an unspecified form of Schizophrenia and “other psychotic disorder” -- all of which, again, was presented in the PSR and sentencing memorandum. The government, on the other hand, found the PSR‘s calculation of the CHC appropriate, also noting that the court‘s responsibility to protect the public from Pupo cautioned against a lower sentencing range, but the government still stood by the tоtal offense level of nineteen from the plea agreement.
After reviewing the PSR, the addendum to the PSR, and Pupo‘s sentencing memorandum, and after hearing from both parties, the district court disagreed with Pupo‘s CHC assessment. The district judge denied Pupo‘s request for a downward departure,
explaining that Pupo‘s “request for the Court to reconsider and reevaluate the Criminal History Category . . . is being denied as the Court finds [] that the рrobation officer has correctly calculated the same.” As an aside, the district judge mentioned the “defendant‘s brushes with the law” which were “plenty and numerous” and included multiple convictions, arrests, and dismissed cases, but which did not factor into the CHC calculation.3
The district judge then considered the
as an adult,” аnd emphasized his actions related to the offense including the fact that “the victims felt and were submitted to the threats and feared for their lives” and that they “were robbed of the[ir] [] vehicle and belongings.” The judge again recognized that “the defendant needs treatment” for his mental health issues, and that “he needs to remain committed to his medications and to that treatment” because otherwise “he will not be able to control [his actions].” Without medication, the district judge explained, Pupo was a “time bomb.” Finally, taking into consideration the plea agreement, the need to promote respect for the law and to protect the public from Pupo, as well as the need for deterrence and punishment, the court sentenced Pupo to a term of seventy months’ imprisonment followed by three years of supervised relеase.4
Defense counsel objected to the substantive and procedural reasonableness of the sentence. Specifically, counsel objected to the “Court‘s consideration of uncharged or dismissed conduct” and the “denial of the request of downward departure based on overrepresented criminal history and risk of recidivism, as well as the arguments relating to Mr. Pupo‘s mental health.” Pupo
nоw appeals, alleging that his within-guidelines sentence is both procedurally and substantively unreasonable.
Standard of Review
Claims challenging the procedural and substantive reasonableness of a sentence are subject to a bifurcated inquiry: “we first determine whether the sentence imposed is procedurally reasonable” and if we conclude that it is, we “then determine whether it is substantively reasonable.” United States v. Flores-Quinones, 985 F.3d 128, 133 (1st Cir. 2021) (quoting United States v. Reyes-Torres, 979 F.3d 1, 6-7 (1st Cir. 2020)); see also Gall v. United States, 552 U.S. 38, 51 (2007). A sentence is prоcedurally unreasonable when the district court commits a procedural error such as “failing to calculate (or improperly calculating) the Guidelines range, treating the Guidelines as mandatory, failing to consider the
A sentence is substantively reasonable if the “sentencing court has provided a ‘plausible sentencing rationale’ and reached a ‘defensible result.‘” Flores-Quinones, 985 F.3d at
133 (quoting United States v. Sayer, 916 F.3d 32, 39 (1st Cir. 2019)). In determining the substantive reasonableness of a sentence, we owe deference to the sentencing court‘s exercise of informed discretion in fashioning the appellant‘s sentence. United States v. Lopez, 974 F.3d 1, 8-9 (1st Cir. 2020). Further, “[i]n the sentencing context, we еvaluate claims of unreasonableness in light of the totality of the circumstances.” United States v. Flores-Machicote, 706 F.3d 16, 20 (1st Cir. 2013) (citing Gall, 552 U.S. at 51).
We review preserved claims of procedural and substantive unreasonableness under the deferential abuse of discretion standard, United States v. Davila-Bonilla, 968 F.3d 1, 9 (1st Cir. 2020), reviewing findings of fact for clear error and issues of law de novo, Bermudez-Melendez, 827 F.3d at 163, ever cognizant that the “touchstone of abuse of discretion review in federal sentencing is reasonableness,” United States v. Benoit, 975 F.3d 20, 24 (1st Cir. 2020) (quoting United States v. Vargas-Davila, 649 F.3d 129, 130 (1st Cir. 2011)). We rеview unpreserved claims of procedural unreasonableness for plain error. United States v. Sanchez-Colberg, 856 F.3d 180, 184 (1st Cir. 2017).
Procedural Unreasonableness
Pupo asserts that the district judge committed three procedural errors during his sentencing. We disagree.
Pupo‘s first argument is that the district court failed to meaningfully address his mental health diagnosis.5 According to Pupo, the district court needed to specifically mention his diagnosed mental illness, discuss how his illness related to the
psychodiagnostics evaluation. Fatal to Pupo, his arguments do not find
A district judge need not “verbalize its evaluation of each and every [§] 3553(a) factor” nor do so in painstaking detail. United States v. Contreras-Delgado, 913 F.3d 232, 240 (1st Cir. 2019) (alteration in original) (quoting United States v. Reyes-Rivera, 812 F.3d 79, 89 (1st Cir. 2016)); see United States v. Calderon-Lozano, 912 F.3d 644, 649 (1st Cir. 2019) (“The district court . . . ‘is not required to address [each] factor[ ], one by one, in some sort of rote incantation when explicating its sentеncing decision.‘” (quoting United States v. Dixon, 449 F.3d 194, 205 (1st Cir. 2006) (alteration in original))). At a minimum, a district judge need only “say enough for us to meaningfully review the sentence‘s reasonableness.” United States v. Correa-Osorio, 784 F.3d 11, 28-29 (1st Cir. 2015).
The district court provided enough explanation here. The district judge stated that she considered the
appellant‘s mitigation evidence “front and center“). Further, the district court meaningfully considered Pupo‘s struggles with mental health and substance abuse at sentencing. The court repeatedly acknowledged his extensive history оf substance abuse, explained that comorbidity was related to his criminal history, and acknowledged that Pupo was in need of treatment. Additionally, the court specifically discussed sending Pupo to an institution that had mental health facilities -- a clear recognition that the judge understood that Pupo needed mental health treatment. See Diaz-Rivera, 957 F.3d at 28 (noting that the court‘s recommendation that defendant participаte in drug treatment program refuted appellant‘s allegation that the court ignored his history of addiction). Unfortunately for Pupo, the court did not weigh his criminal history and conditions in the manner he had hoped. The district judge highlighted that he had six convictions and that the facts of the present offense included a serious threat of violence to the victims. Even further, the district court made its view about Pupo‘s mental health and substance abuse at the time of the offense abundantly clear: the current combination of his untreated ailments rendered Pupo a “time bomb.” See United States v. Santa-Soler, 985 F.3d 93, 99 (1st Cir. 2021) (“[I]t is incorrect to assume -- as the defendant does -- that his failure to persuade the court to impose a more lenient
sentence implies that the mitigating factors he cites were overlooked.“). With this explanation squarely before us, we cannot say that thе district court abused its discretion.
Next, Pupo asserts that the district court did not adequately consider his need for mental health treatment or how to implement treatment in the “most effective manner” as required by
institution that would be able to assist him. Although federal correctional institutions are not the standard-bearers for mental health and substance abuse assistance, the court weighed Pupo‘s needs with the need to protect society from further criminal activity and arrived at a plausible result. Dixon, 449 F.3d at 205; see United States v. Velez-Soto, 804 F.3d 75, 79-80 (1st Cir. 2015).
Pupo‘s third challenge fares no better. He asserts that the district court misunderstood its authority to deрart downwardly based on an overrepresented criminal history category and improperly relied on arrests and charges that did not result in convictions. The sentencing transcript suggests otherwise. While it may be true that the district judge, in part, understood defense counsel‘s request as a tardy objection to the PSR, the district court also denied Pupo‘s “request for the Court to reconsider and reevaluate the Criminal History Category” because “the probation officer has correctly calculated the [CHC],” signaling a straightforward denial of Pupo‘s departure request. Moreover, directly after that statement, the district judge squarely addressed the overrepresentation argument and rejected it by concluding that Pupo‘s “brushes with the law are plenty and numerous.”
Moreover, while Pupo correctly points out that we have cаutioned district judges against considering arrests not buttressed by convictions or independent proof of conduct when making an upward departure determination in United States v. Marrero-Perez, 914 F.3d 20, 22 (1st Cir. 2019), the record does not suggest that the district judge “‘equate[d] [his] arrest[s] with guilt.’ Nor . . . that the court relied solely on [Pupo‘s] arrests or placed undue weight on either the arrests themselves or their underlying conduct” -- our principal concerns in Marrero-Perez. Diaz-Rivera, 957 F.3d at 27 (internal citation omitted). Of сourse, no error results when the district judge, as occurred here, merely refers to the defendant‘s dismissed charges “‘in the course of relying on certain conduct that took place in connection with the dismissed charges’ and that conduct is described in unchallenged portions of the [PSR].” United States v. Miranda-Diaz, 942 F.3d 33, 40 (1st Cir. 2019) (quoting United States v. Mercer, 834 F.3d 39, 50 (1st Cir. 2016)); United States v. Ramirez-Romero, 982 F.3d 35, 37 (1st Cir. 2020).
Substantive Unreasonableness
Finally, Pupo avers that his sentence is substantively unreasonable because the district judge failed to conduct a “comprehеnsive sentencing assessment” and did not properly balance the
refuted by the record because, as we explained above, the district judge clearly articulated a plausible sentencing rationale and reached a defensible result. The district judge reviewed the PSR and sentencing memorandum, properly calculated his guidelines sentencing range, and adopted probation‘s uncontested CHC cаlculation. The district judge considered all the
Guidelines sentence. See id. The sentence, therefore, is substantively reasonable.
Conclusion
For the foregoing reasons, we affirm.
THOMPSON
CIRCUIT JUDGE