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United States v. Toma S Sepu Lveda-Herna Ndez

United States Court of Appeals, First Circuit

March 16, 2016

TOMÁ S SEPÚ LVEDA-HERNÁ NDEZ, Defendant, Appellant


Michael C. Bourbeau and Bourbeau & Bonilla, LLP on brief for appellant.

Rosa Emilia Rodríguez-Vélez, United States Attorney, Nelson Pérez-Sosa, Assistant United States Attorney, Chief, Appellate Division, and Thomas F. Klumper, Assistant United States Attorney, Senior Appellate Counsel, on brief for appellee.

Before Howard, Chief Judge, Selya and Kayatta, Circuit Judges.


SELYA, Circuit Judge.

In this appeal, defendant-appellant Tomás Sepúlveda-Hernández attempts to raise multiple claims of sentencing error. Concluding, as we do, that his claims are both unpreserved and unpersuasive, we affirm.


The facts and proceedings that culminated in the challenged sentence are chronicled in our previous opinion, see United States v. Sepúlveda-Hernández, 752 F.3d 22, 25-27 (1st Cir. 2014), and we assume the reader's familiarity with that account. We offer only a synopsis here.

A jury convicted the appellant of a medley of crimes stemming from his serial roles as the supplier to, part-owner of, and eventual lessor of a drug-distribution network based in La Trocha Ward, Vega Baja, Puerto Rico. See id. at 25-26. On appeal, we trimmed the appellant's convictions (reducing them to convictions for conspiracy and aiding and abetting the distribution of drugs, simpliciter), vacated his sentence, and remanded for resentencing. See id. at 31, 38. In the process, we upheld the district court's drug-quantity determination, holding the appellant accountable for 977 kilograms of marijuana. See id. at 35-36.

At resentencing, the district court, without objection, recalibrated the guideline sentencing range (GSR)[1]: the appellant's base offense level was 28, see U.S.S.G. § 2D1.1; a four-level enhancement for a leadership role was added, see id. § 3B1.1(a); a designation of Criminal History Category I was made; and these subsidiary findings cumulatively yielded a GSR of 121 to 151 months. The government argued for a top-of-the-range sentence. The appellant sought a below-the-range sentence. The district court proceeded to sentence the appellant at the apogee of, but within, the GSR, imposing a 151-month term of immurement on each count of conviction, to run concurrently. The court explained: " I think the offense that you engaged in, the actions that you engaged in, the amount of drugs, the persons that you harmed, seriously creates a very serious and complex situation. . . . You were not just a participant, a simple seller." This timely appeal followed.


In this venue, the appellant first asseverates that the court below failed adequately to explain its reasons for the sentence. Normally, claims of sentencing error are reviewed for abuse of discretion. See Gall v. United States, 552 U.S. 38, 51, 128 S.Ct. 586, 169 L.Ed.2d 445 (2007); United States v. Martin, 520 F.3d 87, 92 (1st Cir. 2008). But this standard of review is altered where, as here, the appellant has failed to preserve a claim below. See United States v. Duarte, 246 F.3d 56, 60 (1st Cir. 2001). In that event, review is for plain error. See id. To prevail under plain error review, an appellant must show " (1) that an error occurred (2) which was clear or obvious and which not only (3) affected the [appellant's] substantial rights, but also (4) seriously impaired the fairness, integrity, or public reputation of judicial proceedings." Id.

The claim of error sub judice boils down to an assertion that the district court did not adequately state its reasons for imposing a sentence at the peak of the applicable GSR. Because the appellant did not raise this claim below, our review is for plain error.[2]

Congress has made it abundantly clear that a sentencing court is required to " state in open court the reasons for its imposition of the particular sentence." 18 U.S.C. § 3553(c). This statutory directive must be read " in a practical, common-sense way." United States v. Davila-Gonzalez,595 F.3d 42, 48 (1st Cir. 2010). Thus, it is sufficient for the sentencing court simply to identify the main factors driving its determination. See United States v. Vargas-Garcia,794 F.3d 162, 166 (1st Cir. 2015). Put another way, the sentencing court's explanation need ...

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