APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF PUERTO RICO. Hon. Francisco A. Besosa, U.S. District Judge.
José R. Olmo-Rodríguez on brief for appellant.
Nelson Pérez-Sosa, Assistant United States Attorney, Chief, Appellate Division, and Rosa Emilia Rodriguez-Velez, United States Attorney, on brief for appellee.
Before Howard, Lipez, and Barron, Circuit Judges.
BARRON, Circuit Judge.
The defendant, Luis D. Ortiz-Rodríguez, received a 48-month prison term after entering a guilty plea to one count of cocaine trafficking in violation of 21 U.S.C. § 841(a)(1). Ortiz now challenges the procedural reasonableness of that sentence due to the District Court's upward variance from the applicable sentencing range under the Sentencing Guidelines with what Ortiz contends was insufficient justification. For the reasons that follow, we vacate Ortiz's sentence and remand for re-sentencing.
At sentencing, the District Court reviewed the guidelines calculation set forth in the pre-sentence investigation report. The report stated that the base offense
level for an offense involving less than 25 grams of cocaine was 12. See U.S.S.G. § 2D1.1(c)(14) (2013). The report further stated that Ortiz also was subject to a two-point enhancement for the use of firearms, as well as a two-point deduction for acceptance of responsibility in consequence of his plea.
See id. § 2D1.1(b)(1); id. § 3E1.1(a). Thus, the report set forth a guidelines calculation that produced a recommended sentencing range of 10 to 16 months. The statutory maximum for the offense is 20 years. See 21 U.S.C. § 841(b)(1)(C).
The plea agreement, filed on July 24, 2013, contained an alternate guidelines calculation. The plea agreement's calculation yielded a sentencing range of 27 to 33 months. The agreement then recommended a sentence of 33 months. That recommendation was not binding, however, as the plea agreement provided that Ortiz's sentence would be " left entirely to the sound discretion" of the District Court. See Fed. R. Crim. P. 11(c)(3)(B). And, in any event, the plea agreement's guidelines calculation was incorrect. The calculation included numerous sentencing enhancements that the record did not support.
The District Court followed neither the recommendation in the pre-sentence report nor the recommendation in the plea agreement. The District Court explained that " even though Mr. Ortiz did not plead guilty to a weapons offense, the Court cannot disregard the fact that he participated in an offense that involved firearms and that those firearms were fired during the offense."  In that regard, the District Court referenced the conduct of Ortiz's co-defendants, who had fired guns into the air from a different vehicle while Ortiz was driving nearby.
The District Court then proceeded to describe the evidence found in Ortiz's car at the time of arrest. According to that summation, there was a bullet on the floor of the driver's side of Ortiz's car. Ortiz also had a fanny pack around his leg that contained 18 rounds of .357-caliber ammunition and a sandwich bag containing a leafy green substance that field-tested positive for marijuana. A leafy green substance (that also field-tested positive for marijuana) was also found on Ortiz in his front pocket. In addition, there were two duffel bags in the trunk of the car, which contained clothing, ...