FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF
PUERTO RICO [Hon. Francisco A. Besosa, U.S. District Judge]
B. Demissie and Demissie & Church on brief for appellant.
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.
Howard, Chief Judge, Lynch and Thompson, Circuit Judges.
THOMPSON, Circuit Judge.
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).
and Plea Agreement
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. 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."
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. See id.
"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.
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.
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. 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.
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.
unhappy Garay now appeals his resentencing.