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United States v. Garay-Sierra

United States Court of Appeals, First Circuit

March 16, 2018

UNITED STATES OF AMERICA, Appellee,
v.
WILFREDO GARAY-SIERRA, Defendant, Appellant.

         APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF PUERTO RICO [Hon. Francisco A. Besosa, U.S. District Judge]

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

          John P. Cronan, Acting Assistant Attorney General, Amanda B. Harris, Attorney, Criminal Division, Appellate Section, United States Department of Justice, Rosa E. Rodríguez-Vélez, United States Attorney, and Thomas F. Klumper, Assistant United States Attorney, Acting Chief, Appellate Division, on brief for appellee.

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

          THOMPSON, Circuit Judge.

         PREFACE

         Wilfredo Garay-Sierra ("Garay") is back with us again, this time contesting an 84-month prison term he received on a firearm charge following a remand for resentencing. Stating our conclusion up front: we affirm, for reasons we will come to, right after we highlight those details (and only those details) needed to understand the present appeal - interested readers can find more info in our earlier opinion, reported at United States v. Garay-Sierra, 832 F.3d 64 (1st Cir. 2016).

         CASE TRAVEL

         Indictment and Plea Agreement

         Indicted for carrying and brandishing a shotgun during a crime of violence, see 18 U.S.C. § 924(c)(1)(A)(ii), Garay pled guilty - as part of a plea agreement with the government - only to possessing the weapon. Garay-Sierra, 832 F.3d at 65-66.[1] The criminal code imposes a mandatory-minimum sentence of 60 months and a maximum of life on anyone who "possesses a firearm" during a crime of violence. See id. at 69 (citing 18 U.S.C. § 924(c)(1)(A)(i)). But it imposes a mandatory-minimum sentence of 84 months and a maximum of life on anyone who "brandishe[s]" a "firearm" during a crime of violence. See id. (citing 18 U.S.C. § 924(c)(1)(A)(ii)); see also United States v. Vargas-García, 794 F.3d 162, 164-65 (1st Cir. 2015). So by copping to "possession, " Garay acknowledged that his admission of guilt exposed him to a sentence of 60 months to "life."

         Original Sentence

         Unfortunately, the judge found at Garay's initial sentencing that he had "brandished" the shotgun. The judge then used that finding to boost the mandatory-minimum sentence from 60 months to 84 months. See Garay-Sierra, 832 F.3d at 69. And after going over the relevant sentencing factors in 18 U.S.C. § 3553(a), the judge hit Garay with an 84-month sentence for the firearm offense.[2] See id. at 66.

         We said "unfortunately" a second ago for a reason. You see, caselaw holds that "[a]ny fact that, by law, increases the penalty for a crime is an element that must be submitted to the jury and found beyond a reasonable doubt." Alleyne v. United States, 570 U.S. 99, 102 (2013) (quotation marks omitted). This being so, and because the judge-found brandishing finding upped the applicable mandatory-minimum term, we had no choice but to vacate that sentence and remand for a sentencing do-over. See Garay-Sierra, 832 F.3d at 69.

         Resentence and Reappeal

         Fast forward to the resentencing hearing. There, the judge noted that Garay faced a mandatory minimum of at least 60 months' imprisonment "because the plea was possession of a firearm, " with the mandatory minimum also serving as the guideline sentence for his offense. See United States v. Rivera-González, 776 F.3d 45, 49 (1st Cir. 2015) (explaining that the "mandatory minimum sentence under section 924(c) . . . is deemed to be the guideline sentence"). Consistent with the plea agreement, Garay and the government recommended a 60-month sentence.

         Reminding everyone that he had discussed and applied many of the § 3553(a) factors at Garay's original sentencing, the judge thought he should say a few more words on two of them. First the judge talked about the heightened need for deterrence given "Puerto Rico's high firearms and violent crime rate." Then the judge spoke about the seriousness of Garay's offense. Relying (at least implicitly) on the unobjected-to facts in the PSR, the judge commented that while Garay had pled guilty to possessing the shotgun, he had "carried" the firearm during a carjacking, which the judge said meant he had "brandished" the firearm as defined by the pertinent statute and sentencing guideline.[3] In other words, from these references we take it the judge ruled that these facts showed Garay had displayed the gun (Garay had carried a shotgun as he and his fellow carjackers ordered the two victims into the vehicle - as reported in the PSR, without contradiction), thus meeting the brandishing definitions in the statute and guideline. The judge also noted that one of Garay's carjacking cohorts, referred to in the PSR as "Minor 1, " had brutalized the carjackees, (a) hitting the male victim on the head with a silver handgun and threatening to kill him, and (b) sexually assaulting the female victim.

         Again repeating that he knew the plea agreement "exposed" Garay "to a statutory minimum" term of 60 months behind bars, the judge concluded that, based on the reasons he had given, an 84-month term was "sufficient but not greater than necessary" to accomplish the goals of sentencing set out in § 3553(a). Garay's counsel objected, calling the sentence procedurally unsound and substantively unreasonable because, to his way of thinking, the judge spent too much time dwelling on Minor 1's conduct in sifting through the facts - facts, by the way, that counsel conceded "did occur." Quoting from our earlier opinion, the prosecutor insisted that Garay was hardly "an innocent bystander" and clarified that Minor 1's silver handgun turned out to be "a fake." Garay's counsel's objection did not cause the judge to rethink the sentence.

         An unhappy Garay now appeals his resentencing.

         ARGUMENTS ...


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