APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF PUERTO RICO. Hon. Juan M. Pérez-Giménez, U.S. District Judge.
Raymond Rivera Esteves on brief for appellant.
Rosa Emilia Rodriguez-Velez, United States Attorney, Nelson Perez-Sosa, Assistant United States Attorney, Chief, Appellate Division and Carmen M. Marquez-Marí n, Assistant United States Attorney, on brief for appellee.
Before Howard, Lipez and Thompson, Circuit Judges.
HOWARD, Circuit Judge.
Jan Carlo Oquendo-Garcia appeals his above-guidelines sentence for aiding and abetting the possession of a rifle in furtherance of a drug-trafficking crime, 18 U.S.C. § 924(c)(1)(A). He argues that the court imposed an 84-month incarcerative sentence in violation of Fed. R. Crim. P. 32(h) and that the sentence was substantively unreasonable. Finding no errors, we affirm.
Following a routine vehicle stop which escalated into a police pursuit, law enforcement officers arrested Oquendo-Garcia and Joshua Molina-Velazquez. Searches of their persons, the vehicle, and the surrounding area yielded drugs, guns, ammunition, and cash. As a result, the government charged both individuals with possessing marijuana with intent to distribute, 21 U.S.C. § 841(a)(1), and possessing a rifle in furtherance of that drug-trafficking crime, 18 U.S.C. § 924(c)(1)(A). Oquendo-Garcia pled guilty to the gun offense, and the government dismissed the drug count. Molina-Velazquez pled guilty to both.
As a result of his plea, Oquendo-Garcia faced a statutory mandatory minimum sentence of 60 months in prison. § 924(c)(1)(A)(i). Section 2K2.4(b) of the Sentencing Guidelines adopts that mandatory
minimum as the recommended guidelines sentence, and the probation department applied it in Oquendo-Garcia's pre-sentence report. Nonetheless, the district court determined that an 84-month sentence was more appropriate, given Oquendo-Garcia's extensive criminal history. Oquendo-Garcia immediately moved for reconsideration, which the district court denied. He then timely filed this appeal.
When appropriate, we apply a two-step test to evaluate the reasonableness of a criminal sentence. United States v. Politano, 522 F.3d 69, 72 (1st Cir. 2008). First, we consider whether the district court committed any procedural missteps when imposing the sentence. Id. Then, we ask whether the sentence was substantively reasonable. Id. Oquendo-Garcia presents arguments at both steps.
Initially, Oquendo-Garcia asserts that the district court departed from the sentencing guidelines, without first providing him with the required notice. See Fed. R. Crim. P. 32(h) (noting that " [b]efore the court may depart from the applicable sentencing range on a ground not identified for departure either in the presentence report or in a party's prehearing submission, the court must give the parties reasonable notice that it is contemplating such a departure" ). He acknowledges that plain error applies to this claim and that he must therefore show an error that " was clear or obvious, and that it both affected his substantial rights and seriously impaired the fairness, integrity, or public reputation of judicial proceedings."
United States v. Ramos-Gonzá lez, 775 F.3d 483, 499 (1st Cir. 2015) (citation and internal quotation marks omitted).
To establish an error, he points to Application Note 2(B) of U.S.S.G. § 2K2.4 which says, " [A] sentence above the minimum term required by 18 U.S.C. § 924(c) . . . is an upward departure from the guideline sentence . . . [which] may be warranted, for example, to reflect the seriousness of the defendant's criminal history." ...