UNITED STATES OF AMERICA, Appellee, v. DAVID JOEL VÉLEZ-ANDINO, Defendant, Appellant.
Nos. 19-1300, 19-1298, 19-1296
United States Court of Appeals For the First Circuit
August 30, 2021
Before Howard, Chief Judge, Selya and Thompson, Circuit Judges.
APPEALS FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF PUERTO RICO [Hon. Juan M. Pérez-Giménez, U.S. District Judge] [Hon. Daniel R. Domínguez, U.S. District Judge] Mauricio Hernandez Arroyo and Law Offices of Mauricio Hernandez Arroyo on brief for appellant. W. Stephen Muldrow, United States Attorney, Mariana E. Bauzá Almonte, Assistant United States Attorney, and Gregory B. Conner, Assistant United States Attorney, on brief for appellee.
Life is a series of choices, and there are consequences for choosing to be armed instead of choosing either to conform to the criminal law or to abide by applicable conditions of supervised release. Because the appellant chose to be armed notwithstanding his prohibited-person status, the consequences here were predictable. Concluding, as we do, that his claims of error are futile, we affirm both sentences.
I
We briefly rehearse the relevant facts and travel of the case. Where, as here, both sentences followed the appellant‘s admission of guilt, we draw the facts from the change-of-plea colloquy, the undisputed portions of the presentence investigation report (PSI Report) and sentencing transcript in the firearms case, and the transcript of the revocation hearing. See United States v. Velázquez, 777 F.3d 91, 93 (1st Cir. 2015); United States v. Dietz, 950 F.2d 50, 51 (1st Cir. 1991).
In 2012, the appellant pleaded guilty to two indictments, both of which charged him with possession of a firearm by a convicted felon. See
Roughly three months later, Bureau of Alcohol, Tobacco, Firearms and Explosives task force officers received a tip that a convicted felon, later identified as the appellant, was in possession of a firearm. The officers began surveilling the appellant‘s neighborhood in Bayamón, Puerto Rico. On November 16, they observed the appellant driving recklessly and attempted unsuccessfully to stop him. A chase ensued, and the appellant was eventually apprehended.
The officers asked the appellant if he was armed. The appellant told them that he had a pistol in his fanny pack. A subsequent search of the fanny pack revealed a .40 caliber Glock pistol with one round in the chamber, an extended magazine (attached to the pistol) with twenty rounds, a magazine with thirteen rounds, and an empty magazine. The firearm had a “chip,” which converted it into a machine gun.
On November 30, 2017, a federal grand jury sitting in the District of Puerto Rico returned a two-count indictment, charging the appellant with possession of a firearm and ammunition by a convicted felon,
The appellant initially maintained his innocence with respect to the new charges. In October of 2018, the appellant reversed course and entered a straight guilty plea to those charges. The district court accepted the plea and ordered the preparation of a PSI Report. When the PSI Report was delivered, the appellant raised two objections to it: he objected to the addition of two criminal history points for a “2004[] conviction for sale or delivery of cocaine under Florida law,” and he objected to the computation of his base offense level. The court sustained both objections. The revised guideline calculations (with adjustments that are not disputed here) resulted in a total offense level of 17 and a criminal history category (CHC) of IV. These data points translated into a guideline sentencing range (GSR) of 37-46 months.
At the disposition hearing, defense counsel sought to provide context for the offenses of conviction. He claimed that the appellant “possess[ed] the firearm in an effort to protect
By this time, all parties had accepted the GSR of 37-46 months. The sentencing court (Pérez-Giménez, J.) started there and then mulled the sentencing factors delineated in
Two weeks later, the district court (Domínguez, J.) convened a revocation hearing. At the revocation hearing, defense counsel again sought to provide context for the appellant‘s firearm offenses, again asked the court to consider that context in determining the appropriate sentence, and requested a twenty-month revocation sentence. In his allocution, the appellant complemented his counsel‘s request, stating that he “violated [his] probation . . . [because he] was fearing for [his] life.” The government asked for a sentence of 24 months.
The district court found that the appellant had violated the conditions of his supervised release, and it revoked the original term of supervision. The court then noted that the appellant‘s new charges constituted a Grade A violation,
The appellant filed timely notices of appeal with respect to both sentences. His appeals have been consolidated in this court.
II
“Appellate review of claims of sentencing error entails a two-step pavane.” United States v. Matos-de-Jesús, 856 F.3d 174, 177 (1st Cir. 2017). “Under this bifurcated approach, we first examine any claims of procedural error. If the challenged sentence passes procedural muster, we then proceed to examine any claim of substantive unreasonableness. At both steps of this pavane, our review of preserved claims of error is for abuse of discretion.” United States v. Díaz-Lugo, 963 F.3d 145, 151 (1st Cir. 2020) (internal citations omitted). “The abuse-of-discretion
A different standard obtains when a claim of error is raised for the first time on appeal. Our review of unpreserved claims of error is for plain error. See United States v. Duarte, 246 F.3d 56, 60 (1st Cir. 2001). “The plain error hurdle is high.” United States v. Hunnewell, 891 F.2d 955, 956 (1st Cir. 1989). “The proponent of plain error must carry the devoir of persuasion as to each of four showings: ‘(1) that an error occurred (2) which was clear or obvious and which not only (3) affected the [appell]ant‘s substantial rights, but also (4) seriously impaired the fairness, integrity, or public reputation of judicial proceedings.‘” United States v. Padilla-Galarza, 990 F.3d 60, 73-74 (1st Cir. 2021) (quoting Duarte, 246 F.3d at 60).
III
With this framework in place, we turn to the appellant‘s claims of error. We start with the sentence imposed on the new charges — a sentence that the appellant challenges on both procedural and substantive grounds.
A
The appellant‘s first claim of procedural error, preserved below, rests on the assertion that the district court
To begin, the PSI Report included information about at least eleven prior arrests. The appellant did not object to the inclusion of this information in the PSI Report, nor did he seek to correct it in any way. The district court did not include any of these arrests either in its computation of the appellant‘s criminal history score or in selecting the appellant‘s CHC.
To be sure, the district court noted that it took into account under section 3553(a) the appellant‘s “extensive prior record and history of delinquent behaviors,” which the court viewed as evidence of the appellant‘s “utter disregard for the law.” In support of this statement, though, the court specifically cited only the appellant‘s three prior federal felony convictions and his pending revocation proceeding. We thus interpret the court‘s earlier reference to the appellant‘s prior arrests as an unadorned recitation of matters of historical fact. “[N]othing in our precedents forbids a sentencing court‘s mere mention of the undisputed facts surrounding a dismissed charge as part of a broader assessment of the [appell]ant‘s troubling trajectory regarding his serial encounters with the criminal justice system.” United States v. Miranda-Díaz, 942 F.3d 33, 41 (1st Cir. 2019).
This case, then, comes within the category of cases in which “a sentencing court‘s mere mention of a defendant‘s arrest record as a matter of historical fact, without more, does not constitute an abuse of discretion.” United States v. Santa-Soler, 985 F.3d 93, 96-97 (1st Cir. 2021).1
The appellant tries to put a different face on the court‘s recitation of his arrest record. Citing United States v. Rodríguez-Meléndez, 828 F.3d 35 (1st Cir. 2016), he argues — for the first time — that a sentencing court commits reversible error when it relies on facts that are “demonstrably false.” That is true as far as it goes, but it does not take the appellant very
One of the three statements identified by the appellant is demonstrably true, not demonstrably false. The court‘s statement that the appellant “ha[d] been convicted three times at the federal level” is accurate. The record reflects that the appellant — in addition to some state felony convictions — has three prior federal felony convictions: a 2004 conviction for selling and delivering cocaine and two 2012 convictions for the illegal possession of firearms.
This leaves the district court‘s comments, made at two different times, that “about ten known charges” and “18 charges” had previously been lodged against the appellant. The comments, though not completely accurate, did not sink to the level of demonstrable falsity.
To invoke the “demonstrably false” proscription adumbrated in Rodríguez-Meléndez, 828 F.3d at 38, the sentencing court‘s challenged statements must be material. The statements about the number of charges were not relied upon by the sentencing court and, in all events, those statements were harmless. Importantly, the court‘s comments, taken together, significantly underrepresented the appellant‘s record, which reflected eleven arrests and over thirty charges.
The short of it is that the challenged comments were not material. There is simply no reason to believe that the lack of exactitude — if error at all — contributed to a harsher sentence for the appellant, especially since the court did not rely on the appellant‘s past arrest record in pronouncing sentence. Because the alleged errors could not have affected the appellant‘s substantial rights, plain error is plainly absent. See United States v. Rabb, 5 F.4th 95, 103 (1st Cir. 2021) (noting that to prove that alleged error affected his substantial rights, appellant must show a “reasonable likelihood that, but for the claimed error, his sentence would have been different“); United States v. Padilla, 415 F.3d 211, 221 (1st Cir. 2005) (“[T]o satisfy the prejudice prong, [the appellant] must limn circumstances indicating a reasonable probability that the trial court, but for the error, would have imposed a different, more favorable sentence.“).
B
The appellant‘s next claim of procedural error, preserved below, posits that the sentencing court failed to address his “duress” argument. The baseline rule is that a sentencing court has an obligation to “state in open court the reasons for its imposition of the particular sentence.”
In this case, the appellant does not contend that the sentencing court was unaware of his duress argument. Nor could he: that line of argument was vigorously pursued by defense counsel at the disposition hearing. There is no reason to think that the sentencing court overlooked it. “When a defendant has identified potentially mitigating sentencing factors and those factors are thoroughly debated at sentencing, the fact that the court ‘did not explicitly mention them during the sentencing hearing suggests they were unconvincing, not ignored.‘” Díaz-Lugo, 963 F.3d at 152 (quoting United States v. Lozada-Aponte, 689 F.3d 791, 793 (1st Cir. 2012)). It follows that the sentencing court‘s silence as to the appellant‘s duress argument does not signal an abuse of discretion.
To be sure,
C
The appellant‘s final claim of procedural error posits that the court erred by failing to “articulate any specific Section 3553(a) rationale” and by failing to “consider the totality of the circumstances at sentencing.” Since this claim of error was not advanced below, our review is for plain error. The appellant
As said, a sentencing court is statutorily required to “state in open court the reasons for its imposition of the particular sentence.”
The court below explicitly stated that it “ha[d] considered the [] sentencing factors as set forth in 18 U.S.C. 3553(a).” It proceeded to discuss several of those factors. The court concluded its analysis by reiterating that it had considered the section 3553(a) factors, and it then emphasized “the need to promote respect for the law and protect the public from further crimes by [the appellant], as well as address the issues of deterrence and punishment.” No more was exigible.
Finally, the appellant contends that his sixty-month upwardly variant sentence is substantively unreasonable. “We review challenges to the substantive reasonableness of a sentence for abuse of discretion.” United States v. Bruno-Campos, 978 F.3d 801, 808 (1st Cir. 2020) (citing Holguin-Hernandez v. United States, 140 S. Ct. 762, 766 (2020)).
“In the sentencing context, ‘reasonableness is a protean concept.‘” Clogston, 662 F.3d at 592 (quoting United States v. Martin, 520 F.3d 87, 92 (1st Cir. 2008)). As we previously have observed, “[t]here is no one reasonable sentence in any given case but, rather, a universe of reasonable sentencing outcomes.” Id. We must ascertain, then, whether the appellant‘s “sentence falls within this broad universe.” Bruno-Campos, 978 F.3d at 809 (quoting Rivera-Morales, 961 F.3d at 20).
In making this appraisal, “we cannot substitute our judgment of the appropriate sentence for that of the sentencing court; to the contrary, we must accord significant deference to the court‘s informed determination that the section 3553(a) factors justify the sentence imposed.” Rivera-Morales, 961 F.3d at 21. This approach does not change through some mysterious alchemy simply because the sentencing court decides to vary from the guideline range.
Here, the sentencing court clearly articulated why it believed that the appellant‘s case demanded an upward variance. The court recounted that the appellant had an “extensive prior record and history of delinquent behaviors which began at age 20.” Moreover, the appellant “was found in the illegal possession of a black Glock pistol loaded [and] fitted . . . to fire automatically by a single pull of the trigger” only three months after his term of supervised release began. In the court‘s view, the appellant‘s “conduct [] demonstrated utter disregard for the law” and showed a manifest need for deterrence. This sentencing rationale was plausible.
So, too, the challenged sentence represents a defensible outcome. The sentencing court thoroughly considered the section 3553(a) factors and determined that an upward variance was appropriate. Although the extent of the variance was substantial (14 months over the top of the GSR), “even a substantial variance does not translate, ipso facto, into a finding that the sentence
IV
This brings us to the appellant‘s twenty-four-month sentence following the revocation of his supervised release term. The appellant challenges this sentence on both procedural and substantive grounds.
A
The appellant first asserts that the sentencing court erred by not adequately considering mitigation evidence. Specifically, he points to his insistence that he “failed to comply with the conditions of his release because he feared for his life.” Because this claim of error was preserved below, review is for abuse of discretion.
Although a defendant is entitled to bring mitigating circumstances to the court‘s attention at sentencing, “[m]erely raising potentially mitigating factors does not guarantee a lesser sentence.” United States v. Dávila-González, 595 F.3d 42, 49 (1st Cir. 2010). In the last analysis, it is the sentencing court‘s prerogative to “draw upon [its] familiarity with a case, weigh the factors enumerated in [the relevant statute], and custom-tailor an appropriate sentence.” Flores-Machicote, 706 F.3d at 20 (citing Kimbrough v. United States, 552 U.S. 85, 109 (2007)).
Here, the appellant does not contend that the sentencing court overlooked his allegedly mitigating circumstances but, rather, contends that the court did not attach enough heft to them. That complaint rings hollow. As we have said in the context of substantive reasonableness, a sentencing court‘s decision “not to attach to certain . . . mitigating factors the significance that [an] appellant thinks they deserved does not make [a] sentence unreasonable.” Clogston, 662 F.3d at 593. That statement applies equally to claims of procedural sentencing error: it is the district court‘s prerogative — indeed, its duty — to weigh the various factors that must be considered in the sentencing calculus. We will not disturb a sentencing court‘s reasoned decision to weigh some factors more heavily than others. See United States v. Gibbons, 553 F.3d 40, 47 (1st Cir. 2009). This is such a case.
The appellant next asserts that the sentencing court erred by “not consider[ing] the totality of the circumstances and section 3583(a) [sic] considerations.” Because this claim of error was not preserved below, review is for plain error.
The appellant stumbles at the first step of plain error review because he cannot show that an error occurred.
“Although a sentencing court must consider each of the factors that section 3583(e) identifies, the court is not obliged to address these factors ‘one by one, in some sort of rote incantation when explicating its sentencing decision.‘” United States v. Márquez-García, 862 F.3d 143, 145 (1st Cir. 2017) (quoting United States v. Dixon, 449 F.3d 194, 205 (1st Cir. 2006)). Instead, “the court need only identify the principal
Here, the sentencing court‘s explanation for imposing the twenty-four-month revocation sentence is admittedly terse. The court did not mention each and every section 3583(e) factor. It did, however, identify the factors it considered most salient when it stated that it would “impose a sentence that reflects the seriousness of the offense,” “promote respect for the law,” “provide just punishment, and afford adequate deterrence and protect our community.” The fact that the court did not mention other factors “does not mean that it failed to consider them.” Id. at 145-46. Viewed in context, we find the court‘s explanation sufficient. Consequently, we reject the appellant‘s claim of procedural error.
C
The appellant‘s challenge to the substantive reasonableness of his revocation sentence need not detain us. The record makes manifest that the sentencing court articulated a plausible sentencing rationale. Its rationale centered on the fact that — less than three months after starting his supervised release — the appellant “was arrested in possession of a loaded weapon.” This behavior, the court found, “demonstrated total disregard for the law.” And based on this assessment, the court
Given this plausible rationale, the sentence itself is easily defensible. A defendant who violates the conditions of his supervised release breaches the trust that the court has extended to him. See United States v. Santiago-Rivera, 594 F.3d 82, 85 (1st Cir. 2010). Here, the appellant‘s violation was egregious: the firearm that he unlawfully possessed during his supervised release was equipped with a chip that converted it into a machine gun. The twenty-four-month sentence that the court imposed was at the low end of the advisory GSR and was commensurate with the serious violation that had been committed. Taking into account the totality of the circumstances, we conclude that this sentence, too, was within the “universe of reasonable sentencing outcomes.” Clogston, 662 F.3d at 592.
V
We need go no further. For the reasons elucidated above, both of the challenged sentences are
Affirmed.