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United States v. Nieves-Borrero

United States Court of Appeals, First Circuit

May 1, 2017

UNITED STATES OF AMERICA, Appellee,
v.
MIGUEL NIEVES-BORRERO, Defendant, Appellee.

         APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF PUERTO RICO Hon. Aida M. Delgado-Colon, Chief U.S. District Judge

          Luz M. 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.

          Before Torruella, Thompson, and Barron, Circuit Judges.

          BARRON, CIRCUIT JUDGE.

         This 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.

         I.

         In 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."

         Prior 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.

         The 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."

         The PSR 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."

         The PSR 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.

         Following 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.

         The 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 ...


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