UNITED STATES OF AMERICA, Aрpellee, v. OMAR SOSA-GONZÁLEZ, Defendant, Appellant.
No. 17-2005
United States Court of Appeals For the First Circuit
August 14, 2018
APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF PUERTO RICO [Hon. Francisco A. Besosa, U.S. District Judge]
Before Howard, Chief Judge, Lynch and Thompson, Circuit Judges.
Luis A. Guzmán Dupont on brief for appellant.
Mariana E. Bauzá-Almonte, Assistant United States Attorney, Steven Liong-Rodríguez, Special Assistant United States Attorney, and Rosа Emilia Rodríguez-Vélez, United States Attorney, on brief for appellee.
I.
The background facts are these. On March 13, 2017, agents of the Puerto Rican Police Department (“PRPD“) were told that a man -- later identified as Sosa -- had been seen carrying a firearm in public. An agent of the PRPD then surveilled Sosa‘s residence on March 15 and 17, and saw Sosa carrying a handgun while Sosa walked from his car to his residence. PRPD agents then executed a search warrant on Sosa‘s residence on March 28, 2017.
This search uncovered a loaded AK-47 rifle and 28 rounds of 7.62 caliber ammunition in Sosa‘s room. After knowingly waiving his rights, Sosа told the agents that the rifle belonged to him and that no other members of his family knew about his possession of the rifle. Sosa also told agents that the rifle was fully automatic.
Further police investigation determined that: the rifle was modified to shoоt more than one round of ammunition, without manual reloading, by a single function of the trigger; Sosa had been convicted of crimes punishable by terms of imprisonment exceeding one year previously; and the rifle and ammunition had not been manufаctured in Puerto Rico. The modification of the rifle made it qualify as a machine gun under
In April 2017, a grand jury in the district of Puerto Rico indicted Sosa for being a felon in possession of a firearm and ammunition, in violation of
Pursuant to a plea agrеement, Sosa stipulated to the facts discussed here, and agreed to plead guilty to one count of being a felon in possession of a firearm and ammunition and to one count of possession of a machine gun. The sentencing calculation in the plea agreement started with a Base Offense Level of 22, coupled with a three-level reduction for timely acceptance of responsibility.
There was no stipulation as to Sosa‘s Criminal History Category. Sоsa had six state-level convictions in Puerto Rico, including for: unlicensed firearm possession (six month sentence), unlawful ammunition possession (three year and one day sentence), two counts of possession of controlled substances (twenty-four month sentence), and two counts of conspiracy to possess with intent to distribute controlled substances (thirty month sentence).
The parties agreed that each would seek a sentence within the Guidelines sentencing range (“GSR“) for а Total Offense Level (“TOL“) of 19 and the relevant Criminal History Category. Sosa agreed to waive his right to appeal if the district court imposed a sentence of fifty-seven months or less, and acknowledged that the district court could, in its discretion, impose a sentence up to the statutory maximum for each offense.
The statutory maximum for both a violation of
Sosa then requested a sentence of forty-six months due to, inter alia, Sosa‘s repentance, his claim of possessing the rifle due to fear of an unidentified person who had escaped from jail, and his desire to better himself by attending drug treatment and becoming certified as a barber in prison.
The government requested a sentence of fifty-seven months due to, inter alia, the “serious nature and circumstances of the offenses,” the dangerousness of machine guns, Sosa‘s criminal history and use of illegal drugs, and his sporadic employment.
The district court determined that the PSR had been calculated accurately. The court then imposed a sentence above the GSR: sixty-six months imprisonment for each count, tо be served concurrently, and three years of supervised release. The court explained its reasons for this sentence. Sosa objected generally that this sentence “is unreasonable,” and timely appealed.
II.
The pаrties agree that the waiver of appeal provision in the plea agreement is inapplicable, because the sentence given was longer than the agreed-to range.
We generally review claims of sentencing error for reasonableness under an abuse of discretion standard. See Gall v. United States, 552 U.S. 38, 41 (2007); United States v. Soto-Soto, 855 F.3d 445, 448 (1st Cir. 2017). Our analysis has two parts:
“we first determine whether the sentence imposed is procedurally reasonable and then determine whether it is substantively reasonable.” United States v. Clogston, 662 F.3d 588, 590 (1st Cir. 2011). In this analysis, “[w]e review the distriсt court‘s interpretation of the guidelines de novo and its fact finding for clear error.” United States v. Reyes-Rivera, 812 F.3d 79, 85 (1st Cir. 2016).
When a defendant does not raise a procedural objection at sentencing, the review is instead for plain error.1 Id. Here, Sosa did not presеrve his procedural objection. Sosa stated generally that “we object as to the sentence because we believe it is unreasonable.” Sosa made no more specific objection. “A general objection tо the procedural reasonableness of a sentence is not sufficient to preserve a specific challenge to any of the sentencing court‘s particularized findings. To preserve a claim of error . . . , an objectiоn must be sufficiently specific to call the district court‘s attention to the asserted error.” Soto-Soto, 855 F.3d at 448 n.1.
But even reviewed under the more defendant-friendly abuse of discretion standard, Sosa cannot meet his burden.
Sosa asserts that the district court did not “consider all the relevant
A district court‘s sentence is procedurally reasonable if:
the district court committed no significant procedural error, such as failing to calculate (or improperly calculating) the Guidelines range, treating the Guidelines as mandatory, failing to consider the
§ 3553(a) factors, selecting a sentence based on clearly erroneous facts, or failing to adequately explain the chosen sentence-including аn explanation for any deviation from the Guidelines range.
United States v. Martin, 520 F.3d 87, 92 (1st Cir. 2008) (quoting Gall, 552 U.S. at 51).
As to the consideration and balance of the
Contrary to Sosa‘s аssertion, the district court expressly discussed, and gave more than sufficient consideration to, several
The district court first stated directly that it considered the sentencing factors “set forth in
The district court then discussed and considered Sosa‘s relevant history and characteristics, including his age, education, employment history, and drug use. Next, the district court discussed the nature and circumstances of the offense, including that the firearm in Sosa‘s possession had “a 30-round high capacity magazine containing 28 rounds of 7.62 caliber ammunition” and that the rifle had been “modified to shoot automatically.” The district court also noted that machine guns are “dangerous and unusual weapons . . . not typically possessed by law-abiding citizens for lawful purposes.” The district court further cited a Ninth Circuit case, United States v. Henry, 688 F.3d 637 (9th Cir. 2012), that examined the danger of machine guns, which “can fire more than 1,000 rounds a minute, which permits a shooter to kill dozens of people within a matter of seconds, usually innocent bystanders.”
Accordingly, the district court determined that neither the government‘s nor Sosa‘s suggested sentence adequately “reflects the serious[ness] of the offense, . . .
Given this ample consideration of
B. Substantive Reasonableness
Sosa also challenges the substantive reasonableness of his sentence. He argues generally that the district court “fail[ed] to consider mitigating factors,” and specifically that the district court “insufficiently considered . . . the ‘history and characteristics of the defendant.‘” Sosa mentions no other mitigating factors specifically.2
We typically review the substantive reasonableness of a sentence for abuse of discretion, considering the totality of the circumstances. See Ruiz-Huertas, 792 F.3d at 226. Sosa‘s claim is waived, however, because Sosa makes no specific argument that demonstrates how different weighing or consideration of potentially mitigating factors would have changed the outcome of the case. Even if we were to excuse Sosa‘s waiver, the sentencing court did not abuse its disсretion in sentencing him.
A sentence is substantively reasonable if there is “a plausible sentencing rationale and a defensible result.” Martin, 520 F.3d at 96. The district court met these requirements by
considering, inter alia, Sosa‘s criminal history, his drug use, and the dangerousness of machine guns. After all, “[t]hat 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.” Clogston, 662 F.3d at 593.
“There is no one reasonable sentence in аny given case but, rather, a universe of reasonable sentencing outcomes.” Id. at 592. The district court‘s sixty-six month sentence -- representing a modest upward variance from the GSR -- was well within this universe of the reasonable.
III.
For the reasons set forth above, we affirm Sosa‘s sentence.