APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF PUERTO RICO. Hon. Francisco A. Besosa, U.S. District Judge.
José Luis Novas Debien on brief for appellant.
Rosa Emilia Rodríguez-Vélez, United States Attorney, Nelson Pérez-Sosa, Assistant United States Attorney, Chief, Appellate Division, and Juan Carlos Reyes-Ramos, Assistant United States Attorney, on brief, for appellee.
Before Torruella, Lipez and Howard, Circuit Judges.
HOWARD, Circuit Judge.
After pleading guilty to robbery and brandishing a firearm during a robbery, Cándido Obed Aponte-Vellón (" Aponte" ) received consecutive incarcerative sentences of 72 months and 84 months. On appeal, Aponte contends that the district court improperly departed upward from the applicable Guidelines sentencing range. Because Aponte in fact received a sentence that varied from the applicable Guidelines ranges, rather than an upward departure under the Guidelines, and because we discern no plain error in the variance, we affirm.
In 2012, Aponte pleaded guilty to both counts of an indictment charging him and a co-defendant with robbery in violation of 18 U.S.C. § § 2 and 1951 (Count One) and with knowingly carrying, using, and brandishing firearms during and in relation to the robbery in violation of 18 U.S.C. § § 2 and 924(c)(1)(A) (Count Two).
After a futile flurry of pro se motions in which Aponte sought, inter alia, withdrawal of his guilty plea and appointment of new counsel, the case proceeded to sentencing in February 2013. Following a presentence investigation report (" PSR" ) issued in December 2012, the district court calculated an advisory Guidelines sentencing range of 24 to 30 months' imprisonment for Count One and a consecutive statutory minimum sentence of 84 months' imprisonment for Count Two. Ultimately, however, the court declined to follow the parties' recommended 108-month total sentence due to its concern over the lengthy record of arrests and pending charges set forth in Aponte's PSR:
The Court finds . . . that the sentence to which the parties agree does not reflect the seriousness of the offense or promote respect for the law or protect the public from further crimes by Mr. Aponte.
As part of a sentencing court's inquiry, a sentencing judge may consider whether a Defendant's criminal history score substantially underrepresents the gravity ...