FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF
PUERTO RICO Hon. José Antonio Fuste, U.S. District
B. Demissie and Demissie & Church on brief for appellant.
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.
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
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. 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
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
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.
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.
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.
A. Sentencing Challenges
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 ...