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United States v. Arias-Mercedes

United States Court of Appeals, First Circuit

August 16, 2018



          Eric Alexander Vos, Federal Public Defender, Vivianne M. Marrero, Assistant Federal Public Defender, and Liza L. Rosado- Rodriguez, Research and Writing Specialist, on brief for appellant.

          Rosa Emilia Rodríguez-Vélez, United States Attorney, Thomas F. Klumper, and Francisco A. Besosa-Martínez, Assistant United States Attorneys, on brief for appellee.

          Before Howard, Chief Judge, Selya and Barron, Circuit Judges.

          REDACTED OPINION [*]


         Defendant-appellant Ynocencio Arias-Mercedes challenges his 87-month incarcerative sentence as procedurally flawed and substantively unreasonable. Among other things, his appeal poses questions about how a district court should apply the Sentencing Commission's revised commentary regarding mitigating role adjustments. See USSG App. C, Amend. 794. After careful consideration of these questions and the other issues raised on appeal, we affirm the challenged sentence.

         I. BACKGROUND

         This appeal follows a guilty plea and, thus, we draw the facts from the plea colloquy, the undisputed portions of the presentence investigation report (PSI Report), and the transcript of the sentencing hearing. See United States v. Fields, 858 F.3d 24, 27 (1st Cir. 2017); United States v. Dietz, 950 F.2d 50, 51 (1st Cir. 1991). On April 24, 2015, the Coast Guard intercepted a 20-foot vessel off the coast of Dorado, Puerto Rico. Aboard the vessel were 72.5 kilograms of cocaine and three men: the defendant, Victor Mercedes-Guerrero (Mercedes), and Juan A. Concepción-García (Concepción). Initially, the trio claimed to be Dominican nationals headed to Puerto Rico in search of work. Later, the defendant changed his tune and admitted his participation in a drug-smuggling enterprise.

         On May 21, 2015, a federal grand jury sitting in the District of Puerto Rico returned a four-count indictment. The indictment charged all three men with conspiracy to import five kilograms or more of cocaine into the United States, aiding and abetting that conspiracy, conspiracy to possess with intent to distribute five kilograms or more of cocaine, and aiding and abetting that conspiracy. See 18 U.S.C. § 2; 21 U.S.C. §§ 841(a)(1), 952(a), 960(a)(1), 963. In due course, the defendant entered a straight guilty plea to all four counts.

         The probation office prepared a PSI Report. Because the offenses of conviction involved more than 50 kilograms but less than 150 kilograms of cocaine, the PSI Report recommended a base offense level of 34. After factoring in a three-level credit for acceptance of responsibility, see USSG §3E1.1, the PSI Report suggested a total offense level of 31. Coupled with a criminal history category of I, this offense level yielded a guideline sentencing range (GSR) of 108-135 months. The GSR, however, was trumped in part by a statutory mandatory minimum of 120 months. See 21 U.S.C. §§ 841(b)(1)(A), 960(b)(1).

         The defendant countered by moving for a downward departure or variance, making clear his objection to certain aspects of the PSI Report. Pertinently, he argued that he had played only a minor role in the criminal activity and, therefore, should receive a two-level role-in-the-offense reduction. See USSG §3B1.2. [redacted][1]

         The defendant took the position that, because he was a "mere transporter of the contraband," he deserved a mitigating role adjustment.[2] He argued that he was less culpable than Mercedes and other unindicted coconspirators (though he did not claim to be less culpable than Concepción). He also sought a downward departure or variance.

         At the disposition hearing, the district court accepted the PSI Report's recommendations, except that it reduced the GSR to 87-108 months.[3] The court then determined that the defendant was not entitled to a minor participant reduction. Considering the newly constituted GSR and the factors delineated in 18 U.S.C. § 3553(a), the court proceeded to reject the defendant's entreaty for a downward departure or variance. Instead, it imposed concurrent 87-month terms of immurement on all four counts of conviction. This timely appeal followed.

         II. ANALYSIS

         We evaluate claims of sentencing error by means of a "two-step pavane." United States v. Matos-de-Jesús, 856 F.3d 174, 177 (1st Cir. 2017); see United States v. Martin, 520 F.3d 87, 92 (1st Cir. 2008). At the first step, we address claims of procedural error. See Gall v. United States, 552 U.S. 38, 51 (2007); Matos-de-Jesús, 856 F.3d at 177. If the sentence passes procedural muster, we then address challenges to its substantive reasonableness. See Matos-de-Jesús, 856 F.3d at 177. Here, we are confronted with claims of both procedural and substantive error. We discuss them sequentially.

         A. Alleged Procedural Flaws.

         As a general matter, "claims of sentencing error are reviewed for abuse of discretion." United States v. Pérez, 819 F.3d 541, 545 (1st Cir. 2016). This standard is not monolithic. "Within it, 'we assay the district court's factfinding for clear error and afford de novo consideration to its interpretation and application of the sentencing guidelines.'" Id. (quoting United States v. Flores-Machicote, 706 F.3d 16, 20 (1st Cir. 2013)).

         1. Mit ...

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