APPEALS FROM THE UNITED STATES DISTRICT COURT FOR THE
DISTRICT OF PUERTO RICO [Hon. Francisco A. Besosa, U.S.
Alejandra Bird López on brief for appellant.
Emilia Rodríguez-Vélez, United States Attorney,
Mariana E. Bauzá-Almonte, Assistant United States
Attorney, Chief, Appellate Division, and Thomas F. Klumper,
Assistant United States Attorney, Senior Appellate Counsel,
on brief for appellee.
Torruella, Lipez, and Kayatta, Circuit Judges.
Cruz-Olavarria challenges two separate terms of imprisonment:
his 120-month sentence for possessing a machine gun, and a
consecutive 24-month sentence for violating conditions of
supervised release related to an earlier conviction for
possessing a machine gun. Because an appellate waiver
provision in Cruz-Olavarria's plea agreement bars us from
reviewing the sentence imposed on the new charges, we address
the merits only of his revocation sentence. As to that
sentence, we find no error and therefore affirm.
2012, Cruz-Olavarria pled guilty to unlawfully possessing a
firearm that was modified to shoot automatically --i.e., a
machine gun, as defined by federal law. See 18
U.S.C. § 922(o) (criminalizing unlawful possession of a
machine gun); 26 U.S.C. § 5845(b) (defining
"machinegun"). He received a sentence of 36
months' imprisonment and three years of supervised
release. More than halfway through his supervised release
term, in September 2016, Puerto Rico police officers assigned
to the San Juan Drug Unit arrested Cruz-Olavarria at a
housing project after seeing him drop a plastic bag and
finding in his waistband a modified pistol that federal law
classifies as a machine gun. A fully loaded, fifteen-round
capacity magazine was attached to the pistol. In his back
pocket, Cruz-Olavarria had two thirteen-round capacity
magazines, one fully loaded and one with twelve rounds.
Officers also recovered the plastic bag, which contained
twenty-three hand-rolled marijuana cigarettes.
five-count superseding indictment issued in October 2016,
Cruz-Olavarria was charged with (1) being a
felon-in-possession of a firearm and ammunition (Count One),
(2) illegal possession of a machine gun (Count Two), (3)
possession with intent to distribute drugs (Count Three), and
(4) possession of firearms in furtherance of a drug
trafficking crime (Counts Four and Five). Cruz-Olavarria
agreed to plead guilty to Counts One and Two, and the
government agreed in return to dismiss the remaining counts.
Sentence Recommendation provision of the plea agreement
After due consideration of the relevant factors enumerated in
18 U.S.C. §3553(a) and after considering that the
parties have agreed that Counts Three through Five will be
dismissed ([one of] which carried a minimum sentence of 30
years of imprisonment), the parties agree that as to Counts
One and Two, the defendant will request a sentence of no less
than ninety-six (96) months and the United States may request
a sentence of up to one hundred twenty (120) months of
plea agreement also contained a Waiver of Appeal provision:
"The defendant knowingly and voluntarily waives the
right to appeal the judgment and sentence in this case,
provided that the Defendant is sentenced in accordance with
the terms and conditions set forth in the Sentence
Recommendation provisions of this Plea Agreement."
district court sentenced Cruz-Olavarria to 120 months'
imprisonment -- the statutory maximum -- for the new criminal
conduct. The Guidelines range for those crimes,
based on his acceptance of responsibility and Criminal
History Category ("CHC") of III, was 30 to 37
months' imprisonment. In explaining the sentence, the
court emphasized the special danger posed by machine guns,
referenced Cruz-Olavarria's possession of
marijuana, and noted that "he possessed
the machine gun in further[ance] of a drug trafficking
crime." The court observed that it would have imposed a
sentence greater than 120 months but for the statutory limit,
having concluded that the statutory maximum was insufficient
to reflect, inter alia, the seriousness of the offense and
the need to deter and punish Cruz-Olavarria.
after Cruz-Olavarria's sentencing on the new criminal
charges, in the same proceeding, the district court
separately considered the revocation sentence. Because
Cruz-Olavarria's violation of his supervised release
conditions included possession of a machine gun, the
violation was classified as Grade A, the most serious type.
See U.S.S.G. § 7B1.1(a); United Statesv.Tanco-Pizarro, 892 F.3d 472, 475 (1st
Cir. 2018) (describing the three violation grades). His
Guidelines range (based on his CHC of I) was therefore 12 to