FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF
PUERTO RICO Hon. Aida M. Delgado-Colon, Chief U.S. District
Ríos-Rosario for appellant.
Jonathan L. Gottfried, Assistant United States Attorney, with
whom Mariana E. Bauzá-Almonte, Assistant United States
Attorney, Chief, Appellate Division, and Rosa Emilia
Rodríguez-Vélez, United States Attorney, were
on brief, for appellee.
Torruella, Thompson, and Barron, Circuit Judges.
BARRON, CIRCUIT JUDGE.
appeal requires us to review Miguel Nieves-Borrero's
challenge to the 70-month prison sentence that he received
after he pled guilty in the United States District Court for
the District of Puerto Rico, pursuant to a plea agreement, to
aiding and abetting a convicted felon in the possession of a
firearm, in violation of 18 U.S.C. §§ 922(g)(1),
924(a)(2), and 2. We affirm the sentence.
March of 2015, Nieves entered into a plea agreement with the
government. In that agreement, the parties calculated that
Nieves' base offense level under the United States
Sentencing Guidelines was 14, pursuant to U.S.S.G. §
2K2.1(a)(6). The plea agreement then calculated that the
offense level should be reduced by two levels due to
Nieves' acceptance of responsibility, in accordance with
U.S.S.G. § 3E1.1. The plea agreement thus set forth a
total adjusted offense level of 12. The parties did not
stipulate to a criminal history category ("CHC")
and made no reference to any prior convictions of
Nieves'. The plea agreement noted that the recommended
sentencing range under the Guidelines for a defendant with an
offense level of 12 and a CHC of I is 10 to 16 months.
U.S.S.G. Ch. 5, Part A. The plea agreement stipulated that
"[t]he parties agree to recommend a term of imprisonment
at the lower end of the applicable guideline range."
to sentencing, but after the parties entered into a plea
agreement, the Probation Office issued a pre-sentence report
("PSR"). The PSR set forth a base offense level of
26 for Nieves, which was higher than the base offense level
that the plea agreement had set forth. The PSR used the
higher figure because it noted that Nieves had two prior
convictions, neither of which had been mentioned in the plea
agreement. It then relied on these two prior convictions in
calculating his base offense level pursuant to U.S.S.G.
§ 2K2.1(a)(1)(B), which provides for a base offense
level of 26 where a defendant has previously
"sustain[ed] at least two felony convictions of either a
crime of violence or a controlled substance offense."
The terms "crime of violence" and "controlled
substance offense" are defined in the commentary to
U.S.S.G. § 4B1.2.
first of Nieves' prior felony convictions that the PSR
identified as qualifying under U.S.S.G. § 2K2.1(a)(1)(B)
was for fourth-degree aggravated battery under Article 122 of
the Puerto Rico Penal Code. See P.R. Laws Ann. tit.
33, § 4750. The PSR specified that the conviction was
"for conduct that qualifies as a crime of violence under
USSG § 4B1.2."
identified the second of Nieves' qualifying convictions
under U.S.S.G. § 2K2.1(a)(1)(B) as one for attempt to
possess with intent to distribute controlled substances, in
violation of Article 406 of the Puerto Rico Controlled
Substances Act. See P.R. Laws Ann. tit. 24, §
2406. The PSR specified that the conviction was "for
conduct that qualifies as [a] controlled substances offense
under USSG § 4B1.2."
also applied a two-level enhancement to the offense level
under U.S.S.G. § 2K2.1(b)(1) because Nieves' present
conviction was for conduct that involved five firearms, and
applied a three-level reduction for acceptance of
responsibility under U.S.S.G. § 3E1.1. This resulted in
a total adjusted offense level of 25 for Nieves. The PSR also
specified that Nieves had a CHC of III. The PSR calculated
that the resulting sentencing guidelines range was 70 to 87
months' imprisonment. The PSR did not recommend a
specific sentence. Nieves did not object to the PSR.
the issuance of the PSR, Nieves pled guilty to aiding and
abetting a convicted felon in the possession of a firearm, in
violation of 18 U.S.C. §§ 922(g)(1), 924(a)(2), and
2. At the sentencing hearing, the government recommended a
sentence of 15 months' imprisonment.
District Court noted the discrepancy between the Sentencing
Guidelines range set forth in the plea agreement and the one
set forth in the PSR, and specifically referred to
Nieves' prior convictions specified in the PSR as
qualifying offenses under U.S.S.G. § 2K2.1(a)(1)(B).
Nieves did not object. The District Court then ...