UNITED STATES OF AMERICA v. FERNANDO SANTIAGO-LOZADA
No. 21-1661
United States Court of Appeals For the First Circuit
July 27, 2023
Before Gelpi, Thompson, and Montecalvo, Circuit Judges.
Rafael F. Castro Lang for appellant.
Gregory B. Conner, Assistant United States Attorney, with whom W. Stephen Muldrow, United States Attorney, and Mariana E. Bauza-Almonte, Assistant United States Attorney, Chief, Appellate Division, were on brief, for appellee.
GELPI,
I. BACKGROUND
We recap the salient facts. Where, as here, a sentencing appeal “follow[s] a guilty plea, we glean the relevant facts from the change-of-plea colloquy, the unchallenged portions of the presentence investigation report [(“PSR“)], and the record of the [sentencing] hearing.” United States v. Flores-Nater, 62 F.4th 652, 653 (1st Cir. 2023) (quoting United States v. Melendez-Rosado, 57 F.4th 32, 36 (1st Cir. 2023)).1
A. JANUARY 25th ARMED CARJACKING (COUNTS 7 & 8)
On January 25, 2020, at approximately 2:00 a.m., an adult male (“Victim 1“) entered his vehicle, a red 2018 Hyundai Accent parked near “La Placita” in Santurce, Puerto Rico, when Santiago-Lozada stepped out from a nearby vehicle and pointed a firearm at him. Santiago-Lozada proceeded to pull Victim 1 out of the car and demanded Victim 1‘s car keys and cell phone. Victim 1 complied. Santiago-Lozada also ripped off the chains Victim 1 was wearing around his neck, and told him to step back or he would shoot him. Victim 1 obeyed. Santiago-Lozada then entered the Hyundai and sat in the driver‘s seat while another individual who accompanied him took to the passenger seat. They drove away in Victim 1‘s vehicle.
B. JANUARY 31ST ARMED CARJAKING (COUNTS 1, 2, 3 & 4)
Six days later, on January 31, 2020, at approximately 12:50 a.m., again in Santurce, Puerto Rico, Santiago-Lozada (along with another individual) carjacked an Uber driver (“Victim 2” or “Uber driver“) as he waited by Canals Street for someone to request his services.2 Both culprits approached the Uber driver‘s vehicle -- a blue 2017 Kia Forte -- and Santiago-Lozada pointed a firearm at him. The carjackers made the Uber driver move to the backseat. Santiago-Lozada then drove to an ATM nearby so that the Uber driver could withdraw money from his bank account. The Uber driver was unable to complete the transaction, so Santiago-Lozada drove to a different ATM. Santiago-Lozada exited the vehicle and,2
holding a firearm,
C. RELEVANT PROCEDURAL HISTORY
A federal grand jury charged Santiago-Lozada and a codefendant (not a party to this appeal) in an eight-count indictment. Santiago-Lozada was charged in six counts, the first four (Counts 1-4) related to the January 31st Uber carjacking, while the latter two (Counts 7-8) related to the January 25th carjacking: Counts 1 and 7, carjacking, in violation of
Santiago-Lozada entered into an agreement with the government in which he would plead guilty to Counts 1, 2, and 7. Counts 1 and 7 pertained to the two carjackings (the January 31 Uber carjacking and the January 25 carjacking, respectively), while Count 2 concerned the use or possession of the firearm in relation to the January 31st carjacking of the Uber driver. For Count 2, the agreement permitted Santiago-Lozada to plead to the lesser included offense of using and carrying a firearm, see
The PSR calculated the applicable sentencing guidelines for both carjacking counts as follows. The January 25th carjacking of Victim 1 (Count 7) carried a base offense level of 20, pursuant to U.S.S.G. § 2B3.1(a), plus a five-level enhancement because a firearm was brandished, pursuant to U.S.S.G. § 2B3.1(b)(2)(C), and a two-level enhancement because the robbery involved a carjacking, pursuant to U.S.S.G. § 2B3.1(b)(5), for a total offense level of 27. Meanwhile, the January 31st carjacking of Victim 2 (Count 1)
likewise carried a base offense level of 20, pursuant to U.S.S.G. § 2B3.1(a), plus a four-level enhancement because a person was abducted in the commission of the offense, pursuant to U.S.S.G. § 2B3.1(b)(4)(A), and a two-level enhancement because the robbery involved a carjacking, pursuant to U.S.S.G. § 2B3.1(b)(5), for a total offense level of 26. Given that Santiago-Lozada pleaded guilty to Count 2 -- possession of a firearm associated with the January 31st carjacking of the Uber driver -- no additional enhancement was added for the firearm as to Count 1. See U.S.S.G. § 2K2.4, cmt. n.4.
Next, the PSR grouped both carjacking counts. See U.S.S.G. § 3D1.4(a), (b), and
During sentencing, the district court at the outset adopted the PSR‘s unobjected-to guideline calculations. It next turned to the sentencing factors in
Next, the district court addressed the nature of Santiago-Lozada‘s offenses of conviction. It highlighted that in the January 25th armed carjacking (Count 7), Santiago-Lozada also ripped the chains from Victim 1‘s neck and robbed his wallet and cell phone. As to the January 31st armed carjacking (Count 1), the district court emphasized that Santiago-Lozada not only kidnapped Victim 2, but also forced him to withdraw funds from his bank account, all while pressing a gun to his back and threatening to shoot if the Uber driver looked at Santiago-Lozada.
The district court acknowledged the parties’ joint sentencing recommendation, however, ultimately disagreed with it: “[A] sentence of 123 months does not reflect the seriousness of the offenses, does not promote respect for the law, does not protect the public from further crimes by [] Santiago[-Lozada], and does not address the issues of deterrence and punishment.” As such, the district court imposed a sentence of imprisonment of seventy-eight months for Counts 1 and 7 (the upper end of the applicable GSR) and eighty-four months for Count 2 (twenty-four months over the mandatory minimum of sixty months imprisonment), to be served consecutively, for a total of 162 months.
Santiago-Lozada sought reconsideration of his sentence, arguing that the plea agreement‘s recommendation was indeed sufficient. In his view, mitigating factors -- such as the fact that he was under the influence of drugs while committing the crimes and his age -- should have been given greater weight. The district court, in turn, displayed photos of the January 31st carjacking provided by the government in discovery.4 Santiago-Lozada‘s attorney responded to the district court that “My client . . . accepted responsibility, and he is repentant of what he did.” The district court continued: “Yes, but this is brandishing. Not only is it brandishing, but it‘s otherwise used . . . . I could have given [Santiago-Lozada] two more points. Your request for reconsideration is denied.” This appeal followed.
II. DISCUSSION5
“Appellate review of a criminal defendant‘s claims of sentencing error involves
“We first examine any claims of procedural error. If the sentence is procedurally sound, we then examine any claim of substantive unreasonableness.” United States v. Ortiz-Perez, 30 F.4th 107, 111 (1st Cir. 2022).
A. PROCEDURAL REASONABLENESS
Santiago-Lozada‘s procedural reasonableness challenge, which makes its debut on appeal, takes aim at the way in which the district court got to its eighty-four-month sentence for Count 2, representing a twenty-four-month upward variance from the sixty-month guideline sentence (which is also the statutory minimum).6 See U.S.S.G. § 2K2.4. Santiago-Lozada was initially charged with two counts of “brandish[ing]” a firearm,
According to Santiago-Lozada, the district court‘s upward variance is procedurally unreasonable because it is unsupported by the record. In his telling, the only individualized finding -- brandishing of a firearm -- which the district court relied on for its upward variance (as to Count 2‘s
was one that it had already taken into account in its calculation of the GSR as to a carjacking count (Count 7, the first carjacking), resulting in a five-level increase there.
The parties agree that our review as to the procedural claim is for plain error because it was not raised at sentencing.7 “Under the plain error standard, a defendant must show that (1) ‘an error occurred,’ (2) which was ‘clear or obvious,’ (3) ‘that affected his substantial rights,’ and (4) ‘seriously impaired the fairness, integrity, or public reputation of judicial proceedings.‘” United States v. Vazquez-Martinez, 812 F.3d 18, 23 (1st Cir. 2016) (quoting United States v. Millan-Isaac, 749 F.3d 57, 66 (1st Cir. 2014)). “As the party claiming plain error, [Santiago-Lozada] ‘must carry the devoir of persuasion as to all four of these elements.‘” United States v. Merced-Garcia, 24 F.4th 76, 80 (1st Cir. 2022) (quoting United States v. Pinkham, 896 F.3d 133, 136-37 (1st Cir. 2018)).
Santiago-Lozada has not carried his plain-error burden. “[W]hen a sentencing court relies on a factor already accounted for by the sentencing guidelines to impose a variant sentence,
[it] must indicate what makes that factor worthy of extra weight.” United States v. Rivera-Berrios, 968 F.3d 130, 136 (1st Cir. 2020) (quoting United States v. Diaz-Lugo, 963 F.3d 145, 155 (1st Cir. 2020)) (second alteration in original). Here, the factor relied on by the district court for its upward variance as to Count 2 -- that Santiago-Lozada brandished and used a firearm during the
“We have made it clear that ‘[t]he plain error hurdle is high,‘” Merced-Garcia, 24 F.4th at 79 (quoting United States v. Hunnewell, 891 F.2d 955, 956 (1st Cir. 1989)), and, additionally, “[t]he plain-error bar for challenging a district court‘s factual
findings” -- as Santiago-Lozada attempts to do here -- “is especially high,” United States v. Gonzalez-Andino, 58 F.4th 563, 568 (1st Cir. 2023). Given that Santiago-Lozada presented no objections below to the PSR, he now may not dispute the facts therein, “nor can he take issue with the PSR‘s determinations” regarding his relevant conduct.9 United States v. Morales-Cortijo, 65 F.4th 30, 34 (1st Cir. 2023); see also United States v. Gonzalez-Rodriguez, 859 F.3d 134, 137 (1st Cir. 2017) (reasoning that a party‘s failure to object to the facts laid out in the PSR constitutes an admission of those facts). And because Santiago-Lozada‘s claimed errors stem from factual findings he never asked the district court to make, “the error[s] cannot be clear or obvious unless he shows that the desired factual finding[s are] the only one[s] rationally supported by the record below.” Morales-Cortijo, 65 F.4th at 34 (quoting Gonzalez-Andino, 58 F.4th at 568). Santiago-Lozada has not made this showing. His claimed errors are based on factual findings the district court adopted
from the unobjected-to PSR, and hence are supported by the record. See Id.
For the foregoing reasons, Santiago-Lozada‘s procedural reasonableness claim fails.
B. SUBSTANTIVE REASONABLENESS
Santiago-Lozada next argues that his sentence is substantively unreasonable. Below, Santiago-Lozada‘s counsel argued in the motion for sentence reconsideration that “123 months was more than sufficient.” This well-kept the issue for appeal. See Holguin-Hernandez v. United States, 140 S. Ct. 762, 766 (2020) (preservation occurs when a defendant “advocates for a sentence shorter than the one ultimately imposed“). Accordingly, our review is for abuse of discretion. See Flores-Nater, 62 F.4th at 655; United States v. Jurado-Nazario, 979 F.3d 60, 64 (1st Cir. 2020). Santiago-Lozada contends that his sentence is substantively unreasonable because
In the sentencing paradigm “reasonableness is a protean concept.” United States v. Martin, 520 F.3d 87, 92 (1st Cir. 2008). As such, “‘[t]here is no one reasonable sentence in any given case but, rather, a universe of reasonable sentencing outcomes.’ Our task, then, is ‘to determine whether the [challenged] sentence falls within this broad universe.‘” Ortiz-Perez, 30 F.4th at 113 (quoting first United States v. Clogston, 662 F.3d 588, 592 (1st Cir. 2011), then United States v. Rivera-Morales, 961 F.3d 1, 21 (1st Cir. 2020)).
Santiago-Lozada engaged in the carjacking of two individuals at gunpoint on two separate occasions -- six days apart. For these crimes and for further unlawfully possessing a firearm, the district court sentenced him to a term of imprisonment of 162 months. The district court concurrently imposed seventy-eight months -- the upper end of the applicable guideline -- as to the carjacking counts (Counts 1 and 7) rather than the lower end recommended by the parties. As to Count 2, it varied upward by twenty-four months over the guideline sentence (which is also the statutory minimum) of sixty months, imposing a sentence of 84 months. Santiago-Lozada argues that said variance is not supported by the record.
“Defendants are entitled to a ‘sufficiently particularized and compelling’ explanation when they are subject to a significant upward variance.” United States v. Carrasquillo-Sanchez, 9 F.4th 56, 62 (1st Cir. 2021) (quoting United States v. Ofray-Campos, 534 F.3d 1, 43 (1st Cir. 2008)).
“It is well established that a district court may vary above or below a guideline range so long as it offer[s] a ‘plausible and coherent rationale’ for its variance.” Rivera-Santiago, 919 F.3d at 85 (quoting United States v. Alejandro-Rosado, 878 F.3d 435, 439 (1st Cir. 2017)) (alteration in original). “When a
The GSR calculated in the PSR and adopted by the district court would apply to a defendant who possessed a single firearm, see U.S.S.G. § 2K2.1(a)(4)(B), and because Counts 1 and 7 were grouped, both carjackings were treated as a single carjacking count, see U.S.S.G. § 3d1.4(a),(b)&(c).
The district court in fact addressed the factors that differentiated Santiago-Lozada‘s offense from the
“run-of-the-mill” firearm offense contemplated by the guidelines. See Rivera-Santiago, 919 F.3d at 85-86. “Although the appellant may disagree with the relative weight that the court assigned to these factors as opposed to the weight that it assigned to potentially mitigating factors, disagreement
The district court imposed a variant sentence as to the firearm count, finding it was warranted to reflect the actual seriousness of the offense. The aggravating factors, along with the remainder of the district court‘s explanation for the sentences, formed a solid foundation for its sentencing rationale. The district court offered a plausible and coherent rationale for its twenty-four-month upward variance considering Santiago-Lozada‘s overall relevant conduct as it pertains to his use of the firearm in Count 2. When describing the offenses of conviction -- the back-to-back at gunpoint carjackings contained in Counts 1 and 7 (six days apart) and Count 2‘s possession of a firearm relating to Count 1 -- the district court noted Santiago-Lozada‘s violent use of a firearm during both incidents. And, it highlighted that Santiago-Lozada pointed his firearm at Victim 2, kidnapped him, threated to shoot him, and took him to an
ATM and, as the court said, “forced him to debit all the money from his bank account” while pressing the firearm against his waist. This suffices to explain the sentence imposed as to the
For purposes of appellate review, a district court‘s explanation for varying upward should be precise and robust. Although here it arguably did not quite reach this level, the district court nonetheless offered a plausible and sufficiently coherent rationale for the variance. See Guzman-Fernandez, 824 F.3d at 177. The variant sentence imposed as to the
sentencing outcomes, even when the same is consecutive to the concurrent upper end guideline sentence imposed as to the two carjacking counts. We find no abuse of discretion.
Woven into Santiago-Lozada‘s arguments is his complaint that the district court failed to consider or “minimiz[ed]” and gave “[in]sufficient weight” to mitigating factors, such as his youth, mental state, and drug use, in fashioning his sentence.11 We review this preserved claim of error for abuse of discretion, see, e.g., Ortiz-Perez, 30 F.4th at 113, mindful that “a
Many of our usual substantive-reasonableness principles are in play here. To begin with, we note that the sentencing court has discretion over the weighing of
United States v. Santini-Santiago, 846 F.3d 487, 492 (1st Cir. 2017)). Also, “a sentence is not substantively unreasonable simply because the court chose not to attach to certain of the mitigating factors the significance that the defendant thinks they deserve.” United States v. Serrano-Delgado, 29 F.4th 16, 30 (1st Cir. 2022) (citations omitted). Moreover, “[m]erely raising potentially mitigating factors does not guarantee a lesser sentence.” Id. at 49. “[T]he district court must consider all
Each of these principles apply with full force in this substantive-reasonableness challenge, which is readily refuted by the record. The district court here stated that it had considered the
statement by the court that it considered all relevant factors is entitled to significant weight), and specifically detailed Santiago-Lozada‘s age, history of drug use, and hospitalization for hallucinations, cf. Pupo, 995 F.3d at 31. This evidences adequate consideration of mitigating factors. See Alejandro-Rosado, 878 F.3d at 439; see also Serrano-Delgado, 29 F.4th at 30 (finding the district court demonstrated that it considered mitigating factors by expressly noting them); 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.“); Clogston, 662 F.3d at 593 (“That the sentencing court chose not to attach to certain of the mitigating factors the significance that the appellant thinks they deserved does not make the sentence unreasonable.“).
Finding a plausible rationale as well as a defensible result, we conclude that Santiago-Lozada‘s sentence is substantively reasonable and that the district court, hence, did not abuse its discretion.
III. CONCLUSION
We need not tarry further. The sentence of the district court is
AFFIRMED.