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United States v. Fuentes-Echevarria

United States Court of Appeals, First Circuit

May 1, 2017



          Derege B. Demissie and Demissie & Church on brief for appellant.

          Rosa Emilia Rodríguez-Vélez, United States Attorney, Mariana E. Bauzá Almonte, Assistant United States Attorney, Chief, Appellate Division, and John A. Mathews II, Assistant United States Attorney, on brief for appellee.

          Before Howard, Chief Judge, Lipez and Thompson, Circuit Judges.

          HOWARD, Chief Judge.

          Raymond Fuentes-Echevarria challenges the procedural reasonableness of a forty-eight-month sentence imposed following his guilty plea for illegal possession of a machine gun. He also brings an ineffective assistance of counsel claim. After careful consideration, we affirm his sentence and dismiss his ineffective assistance claim without prejudice.


         On September 15, 2014, police officers stopped Fuentes, who was driving his Honda Accord in reverse in the middle of a street, near a known drug trafficking point in San Juan, Puerto Rico.[1] While one officer issued a ticket to Fuentes, a canine trained to detect narcotics, accompanied by another officer, marked two separate locations on Fuentes's vehicle. Fuentes fled the scene and was not arrested.

         Officers subsequently sealed Fuentes's vehicle, transported it to police headquarters, and obtained a search warrant. A subsequent search of the vehicle revealed a secret compartment near the center of the dashboard. From the compartment, officers seized a .40 Glock pistol modified to fire automatically, several gun magazines, and 108 rounds of ammunition. On September 18, 2014, a grand jury returned a sealed indictment charging Fuentes with illegal possession of a machine gun, in violation of 18 U.S.C. § 922(o) and § 924(a)(2).

         Fuentes was arrested about a year later, in July 2015. He initially pled not guilty, and a trial was scheduled. But he ultimately moved to change his plea mere days before the trial was set to begin, and entered a straight plea -- that is, without a plea agreement -- to the sole charge in the indictment.

         Fuentes's Presentence Report ("PSR"), to which he did not object, indicated that his criminal history category was I, and that his Base Offense Level ("BOL") was eighteen, pursuant to U.S.S.G. §2K2.1(a)(5). However, because Fuentes accepted responsibility, his total offense level ("TOL") was reduced to sixteen, see U.S.S.G. §3.E1.1(a), thus setting the applicable Guidelines Sentencing Range ("GSR") at twenty-one to twenty-seven months. At the sentencing hearing, Fuentes recommended a bottom-of-the-GSR sentence of twenty-one months, while the government asked for sixty. After reviewing the facts of this case and expressing a heightened need for community deterrence, the judge sentenced Fuentes to forty-eight months' imprisonment, followed by thirty-six months of supervised release.

         On appeal, Fuentes challenges the reasonableness of his sentence on two grounds. He contends that the district court erred by failing to apply an additional one-level reduction to his TOL for acceptance of responsibility under §3E1.1(b). He also argues that the district court's reliance on certain community factors did not justify the upward variance. Finally, Fuentes brings an ineffective assistance of counsel claim. We address each in turn.

         II. A. Sentencing Challenges

         We review criminal sentences "under a deferential abuse-of-discretion standard." United Statesv.Martin, 520 F.3d 87, 92 (1st Cir. 2008) (quoting Gallv.United States, 552 U.S. 38, 56 (2007)). In applying this standard, we examine a sentence's procedural and substantive reasonableness. United Statesv.Dávila-González, 595 F.3d 42, 47 (1st Cir. 2010). Here, Fuentes assigns only procedural errors to his sentence. See Martin, 520 F.3d at 92 (noting that "failing to calculate (or improperly calculating) the Guidelines range" is procedural); United States v. Narváez-Soto, 773 F.3d. 282, 286-87 (1st Cir. 2014) (treating a challenge about purportedly impermissible sentencing considerations as procedural). Unpreserved procedural challenges engender plain error review. Dávila-González, 595 F.3d at 47. In these circumstances, we will reverse the district court only upon a showing "(1) that an error occurred (2) which was clear or obvious and which not only ...

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