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United States v. Marchena-Silvestre

United States Court of Appeals, First Circuit

October 6, 2015

UNITED STATES OF AMERICA, Appellee,
v.
DAN CARLOS MARCHENA-SILVESTRE, Defendant, Appellant

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF PUERTO RICO. Hon. JoséAntonio Fusté, U.S. District Judge.

Juan Carlos Reyes-Ramos, Assistant United States Attorney, with whom Rosa Emilia Rodríguez-Vélez, United States Attorney, and Nelson Pérez-Sosa, Assistant United States Attorney, Chief, Appellate Division, were on brief, for appellee.

Linda J. Thompson, with whom Robert F. Hennessy and Thompson & Thompson, PC, were on brief, for appellant.

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

OPINION

Page 197

KAYATTA, Circuit Judge.

Dan Carlos Marchena-Silvestre (" Marchena-Silvestre" ) appeals his seventy-two month sentence following his guilty plea to a charge of unlawfully possessing automatic weapons. After careful review of the record, we conclude that the district court's sentencing determination was infected by plain error.

I. Background

Since Marchena-Silvestre's sentence followed a guilty plea, we draw the facts from the plea agreement, the change-of-plea colloquy, the presentence investigation report (PSR), and the sentencing hearing transcript. See United States v. Almonte-Nuñez, 771 F.3d 84, 86 (1st Cir. 2014). We rehearse only the facts necessary to form a basis for our analysis.

A. The Offense and Indictment

On October 24, 2013, Puerto Rico law enforcement agents searched Marchena-Silvestre's apartment pursuant to a search warrant. The agents discovered and seized the following arsenal of firearms and ammunition: (1) an AR-15 assault rifle, unlawfully modified to fire in full automatic mode, equipped with an unlawful short barrel, and loaded with one round in the chamber and thirty-seven rounds in the magazine; (2) a Glock pistol, unlawfully modified to fire in full automatic mode, loaded with one round in the chamber and twelve rounds in the magazine; and (3) an additional 127 rounds of ammunition for the two firearms.

After waiving his Miranda rights, Marchena-Silvestre admitted that the firearms and ammunition belonged to him, that he purchased both firearms, and that he also purchased and installed a metal chip that enabled the Glock pistol to fire in full automatic mode. The investigating agents also discovered that the Glock pistol had been stolen from its registered owner. Less than a week after the seizure, a federal grand jury returned an indictment charging Marchena-Silvestre with possessing a machine gun in violation of 18 U.S.C. § 922(o) and possessing a stolen firearm in violation of 18 U.S.C. § 922(j).

B. The Plea Agreement

Pursuant to a written plea agreement (the Agreement) with the government, Marchena-Silvestre agreed to plead guilty to possessing the machine gun. In turn, the government agreed to dismiss the charge that he possessed a stolen firearm, so long as Marchena-Silvestre complied with the Agreement's terms.

Page 198

Paragraph 7 of the Agreement, entitled " Applicability of United States Sentencing Guidelines," contained a chart of " Sentencing Guidelines Calculations" for 18 U.S.C. § 922(o) that Marchena-Silvestre and the government agreed to " submit" to the court. The chart included a base offense level of 18, see U.S.S.G. § 2K2.1(a)(5), a two-point upward enhancement for a stolen firearm, see U.S.S.G. § 2K2.1(b)(4)(A), and a three-point reduction for acceptance of responsibility, see U.S.S.G. § 3E1.1, to arrive at a total adjusted offense level of 17. Since the parties did not agree to a criminal history category, the chart then set out the applicable guideline sentencing ranges for criminal history categories I (24-30 months) through VI (51-63 months). Paragraph 9, entitled " Sentence Recommendation," provided that " the government reserves the right to request a term of imprisonment equal to the higher end of the applicable guidelines range and the defendant will request a term of imprisonment equal to the lower end of the applicable guidelines range," and that " any recommendation by either party for a term of imprisonment above or below the stipulated sentence recommendation constitutes a material breach of the . . . Agreement." The stipulated sentencing recommendations did not bind the district court, and Marchena-Silvestre only retained the right to appeal in the event that the district court did not sentence him within the stipulated guideline sentencing range.

C. The Presentence Investigation Report

The district court accepted Marchena-Silvestre's guilty plea at the plea colloquy, and instructed the probation department to submit a PSR. The PSR departed from the Agreement by recommending a base offense level of 20 rather than 18, due to the added consideration that the defendant's unlawful use of controlled substances made him a " prohibited person" under the guidelines. See U.S.S.G. § 2K2.1(a)(4)(B). The PSR applied the same two base level adjustments as recommended by the Agreement, resulting in a total offense level of 19 (rather than 17 as calculated in the Agreement).

The PSR also detailed Marchena-Silvestre's criminal history: In 2009, he was convicted of carrying a firearm in violation of Puerto Rico's Weapons Law (a misdemeanor for which he was fined $300); and in 2013 he was convicted of illegally occupying property owned by the Puerto Rico Housing Department, resulting in a $50 fine. The two convictions resulted in a criminal history category of I. Cross-referencing that category with the total offense level of 19, the PSR recommended a guideline sentencing range of 30 to 37 months. See U.S.S.G. ...


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