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United States v. Diaz-Arroyo

United States Court of Appeals, First Circuit

August 12, 2015

UNITED STATES OF AMERICA, Appellee,
v.
HAINZE ELÍAS DÍAZ-ARROYO, Defendant, Appellant

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF PUERTO RICO. Hon. Francisco A. Besosa, U.S. District Judge.

Steven A. Feldman and Feldman and Feldman on brief for appellant.

Rosa Emilia Rodríguez-Vélez, United States Attorney, Nelson Pérez-Sosa, Assistant United States Attorney, Chief, Appellate Division, and Carmen M. Márquez-Marín, Assistant United States Attorney, on brief for appellee.

Before Torruella, Selya and Dyk,[*] Circuit Judges.

OPINION

Page 126

SELYA, Circuit Judge.

In this sentencing appeal, defendant-appellant Hainze Elías Díaz-Arroyo complains that his 48-month sentence is substantively unreasonable and that a condition of supervised release fails to make clear that he is not prohibited from using the internet. After careful consideration, we affirm the sentence itself but remand for the limited purpose of correcting the judgment to clarify the challenged supervised release condition.

I.

BACKGROUND

As this appeal follows a guilty plea, we draw the facts from the plea agreement, the change-of-plea colloquy, the presentence investigation report (PSI Report), and the transcript of the disposition hearing. See United States v. Rivera-González, 776 F.3d 45, 47 (1st Cir. 2015); United States v. Davila-Gonzalez, 595 F.3d 42, 45 (1st Cir. 2010). In January of 2014, a Puerto Rico police officer spied the defendant pulling a firearm from his waistband in the vicinity of a public housing project. The defendant attempted to flee on foot (losing a black wig in the process) but was

Page 127

eventually apprehended. He admitted that he had been wearing the wig to disguise himself as he knew there was an outstanding arrest warrant against him on homicide charges. During a search incident to his arrest, the police found a container of marijuana, a stolen 40-caliber Glock pistol loaded with 13 rounds of ammunition, and a magazine loaded with 12 rounds of 40-caliber ammunition.

In due course, a federal grand jury sitting in the District of Puerto Rico returned an indictment charging the defendant with being a felon in possession of a firearm. See 18 U.S.C. § § 922(g)(1), 924(a)(2). This charge carries a maximum prison sentence of 10 years. See id. § 924(a)(2).

After some preliminary skirmishing (not relevant here), the defendant entered into a non-binding plea agreement with the government (the Agreement). See Fed. R. Crim. P. 11(c)(1)(B). In the Agreement, the defendant agreed to request a sentence no lower than the bottom of the applicable guideline sentencing range (GSR) while the government agreed to recommend a sentence no higher than the top of the range. Withal, the Agreement reached no consensus about the defendant's criminal history category (CHC), although it did forecast a possible GSR based on a CHC of II.

After the district court accepted the defendant's guilty plea, it directed the preparation of the PSI Report. The PSI Report adumbrated a series of guideline calculations. Starting with a base offense level of 14, see U.S.S.G. § 2K2.1(a)(6), it suggested a two-level upward adjustment because the firearm was stolen, see id. § 2K2.1(b)(4)(A), and a three-level downward adjustment for timely acceptance of responsibility, see id. § 3E1.1(a), (b), yielding a total offense level of 13. The PSI Report then proposed a CHC of II because the defendant had previously been convicted of three counts of possession of a firearm without a ...


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