APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF PUERTO RICO. [Hon. Juan M. Pérez-Giménez, U.S. District Judge].
Gail S. Strassfeld, on brief for appellant.
Nelson Pérez-Sosa, Assistant United States Attorney, Chief, Appellate Division, and Rosa Emilia Rodríguez-Vélez, United States Attorney, on brief for appellee.
Before Torruella, Kayatta, and Barron, Circuit Judges.
TORRUELLA, Circuit Judge.
Defendant Miguel Ángel Vázquez-Martínez (" Vázquez" ) pleaded guilty to one count of illegal possession of a machinegun in violation of 18 U.S.C. § § 922(o) and 924(a)(2). Vázquez now appeals his sentence of 60 months' imprisonment on the grounds that it was procedurally and substantively unreasonable. For the reasons discussed below, we affirm.
" Because this appeal follows a guilty plea, we derive the facts from the plea agreement, the change-of-plea colloquy, the unchallenged portions of the presentence investigation report, and the sentencing hearing transcript." United States v. Zapata-VÁzquez, 778 F.3d 21, 22 (1st Cir. 2015).
In the late hours of August 14, 2013, and the early hours of August 15, 2013, the police were conducting a public safety sweep of a housing project in San Juan. The police had information that Vázquez lived in one of the units in the housing project and that he was a drug trafficker. The police knocked on the door of the apartment they believed was Vázquez's. Vázquez's partner answered and consented to a search of the apartment. After signing a consent form, Vázquez's partner told
the police that her " husband" was in one of the apartment's bedrooms. The police approached the bedroom and spoke with Vázquez, who, in addition to consenting to the search, told the officers any illegal items in the apartment were his. Vázquez then disclosed that he had hidden a pistol under a pillow and a rifle inside a dresser drawer.
True to Vázquez's word, the police found a pistol and an AK-47 assault rifle during their search. Because the AK-47 had been modified from its original design to shoot more than one shot upon a single pull of the trigger without manual reloading, it qualified as a " machinegun" under 18 U.S.C. § 922(o). The police arrested Vázquez and he subsequently pled guilty to one count of unlawful possession of a machinegun in violation of 18 U.S.C. § § 922(o) and 924(a)(2).
Pursuant to 18 U.S.C. § 924(a)(2), Vázquez faced a statutory maximum of 10 years' imprisonment. But as part of the plea agreement, the parties stipulated that Vázquez's adjusted offense level was 15, which, if Vázquez's Criminal History Category (" CHC" ) was I, corresponded with a U.S. Sentencing Guidelines range of 18-24 months' imprisonment. The plea agreement, however, did not stipulate a CHC. Instead, the parties agreed that if the district court determined Vázquez's CHC was I or II, Vázquez would recommend a sentence of 18 months' imprisonment while the Government would recommend 24 months' imprisonment. If Vázquez's CHC was III or higher, the parties agreed they would both recommend that the court sentence Vázquez to the lower end of the applicable Guidelines range.
Prior to the sentencing hearing, a probation officer prepared a presentence report (" PSR" ) calculating Vázquez's adjusted offense level as 17. The PSR explained that Vázquez should be subject to a higher offense level than had been described in the plea agreement because he was a prohibited person at the time of the offense -- Vázquez had admitted to the probation officer he consumed Percocet and marijuana around ten times per day since he was seventeen.
The PSR calculated Vázquez's criminal history score as two, which corresponded with a CHC of II. When Vázquez was seventeen years old, he was convicted of four weapons law violations and sentenced to 27 months' probation. Vázquez's probation, however, was revoked and he served 20 months in a juvenile facility until March 2012. The PSR also noted that Vázquez had been arrested as an adult in 2010 for first-degree murder and weapons violations, although these charges were dismissed.
Based on an adjusted offense level of 17 and CHC of II, the PSR calculated Vázquez's Guidelines range as 27-33 months' imprisonment. The PSR also stated that the district court could " reasonably consider a variance . . . by taking into account the need to promote respect for the law, and [to] protect the public from further crimes" committed by Vázquez.
At the sentencing hearing, Vázquez objected to the PSR's adjusted offense level and argued other ...