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United States v. Rivera-Santiago

United States Court of Appeals, First Circuit

March 22, 2019



          Kendys Pimentel-Soto and Kendys Pimentel-Soto Law Office on brief for appellant.

          Rosa Emilia Rodríguez-Vélez, United States Attorney, Mariana E. Bauzá-Almonte, Assistant United States Attorney, Chief, Appellate Division, and B. Kathryn Debrason, Assistant United States Attorney, on brief for appellee.

          Before Lynch, Selya, and Lipez, Circuit Judges.

          LIPEZ, Circuit Judge.

         Claiming procedural unreasonableness, Elvin Antonio Rivera-Santiago appeals his 48-month sentence for unlawfully possessing a firearm. He contends that the district court failed to adequately explain its reasons for imposing an above-guideline sentence, that a variant sentence was not supported by the record, and that the district court "relied on erroneous facts." After careful review, we affirm.


         Given that this appeal follows a guilty plea, "we draw the relevant facts from the plea agreement, the change-of-plea colloquy, the undisputed portions of the presentence investigation report ("PSR"), and the transcript of the disposition hearing." United States v. O'Brien, 870 F.3d 11, 14 (1st Cir. 2017). Rivera-Santiago was charged with being a felon in possession of a firearm after police officers found firearms, magazines, and ammunition at the home he shared with his partner and his seven-year-old daughter, which the officers searched pursuant to a search warrant, and in his vehicle, which they obtained his consent to search. Specifically, the officers found: two empty, large-capacity .40-caliber magazines for a Glock pistol and forty-two rounds of .40-caliber ammunition in the bedroom closet; a Glock pistol loaded with twenty-one rounds of .40-caliber ammunition on the driver's seat of Rivera-Santiago's vehicle; another Glock pistol loaded with forty-eight rounds of .40-caliber ammunition underneath the driver's seat; and three Glock .40-caliber magazines, containing a total of sixteen rounds of ammunition, in the driver's-side door pocket. The officers also found a "chip" used to convert semi-automatic Glocks into fully automatic firearms on top of a gun cleaning kit on the kitchen counter. Rivera-Santiago admitted to possessing all the firearms, magazines, and ammunition. He had previously been convicted of illegal possession of a firearm as a prohibited person and was serving a 36-month term of federal supervised release for the prior conviction at the time of his arrest.

         Pursuant to the plea agreement, Rivera-Santiago pleaded guilty to count one of a two-count indictment, illegal possession of a firearm by a convicted felon, in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2).[1] The parties agreed to recommend sentences within the applicable guideline range, with Rivera-Santiago permitted to "request a sentence at the lower end of the applicable guideline range while the United States may request a sentence at the upper end."

         The PSR calculated Rivera-Santiago's total offense level at 17 and his criminal history category at III, for a guideline range of 30 to 37 months. The calculation took into account Rivera-Santiago's prior conviction for possession of a stolen semi-automatic firearm with an extended magazine and additional loaded magazines, and his commission of the current offense while on supervised release. Neither side objected to the PSR.

         At the sentencing hearing, defense counsel requested a low-end guideline sentence of 30 months while the government requested an upper-end guideline sentence of 37 months. Defense counsel highlighted, inter alia, Rivera-Santiago's difficult upbringing and the fact that he faced a sentence of incarceration in the pending revocation matter. The government noted that (1) the offense involved two weapons and several extended magazines; (2) the conduct was essentially the same as that underlying Rivera-Santiago's prior conviction; (3) he committed the present offense while less than a year out of prison and still on supervised release; and (4) he had committed several rules violations while incarcerated awaiting sentencing. As noted in the PSR, Rivera-Santiago's incarceration infractions included circulating money illegally inside the prison, "refusing to obey an order," and "being insolent [to] staff." The government argued that his behavior, in general, exhibited a "serious disrespect for the law and authority."

         The district court agreed with the guideline range specified by the PSR, i.e., 30 to 37 months. The court then addressed the sentencing factors prescribed by 18 U.S.C. § 3553(a). It noted Rivera-Santiago's personal characteristics, including his parenthood, and pointed out that he had committed the present offense while on supervised release for his prior conviction. The court also catalogued the two semi-automatic weapons, multiple extended magazines, and multiple rounds of ammunition that were in his possession. After stating that it had considered the § 3553(a) factors, "the serious nature of the offense of conviction, the type of weapon and the [amount] of ammunition involved, [and] the defendant's criminal history," the court imposed a 48-month variant sentence. Defense counsel immediately "object[ed] to the varian[t] sentence as procedurally unreasonable," without further elaboration. In response, the court replied, "I believe the circumstances of this defendant fully justifies the [c]ourt's sentence. He's putting at risk his own safety and that of the community. He's not protecting himself, his child or the community. It's a very serious offense and circumstances that he was involved with." This timely appeal followed.[2]


         Rivera-Santiago contends that the 48-month sentence imposed by the district court is procedurally unreasonable because (1) the court failed to adequately explain its variant sentence, which he claims was not supported by the record; and (2) the court "relied on erroneous facts."[3] The parties dispute whether he adequately preserved his objections and thus disagree as to the standards of review. Because we would affirm the sentence regardless of the standard, we assume, favorably to Rivera-Santiago, that he preserved his objections. We therefore review the district court's ...

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