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United States v. Cruz-Olavarria

United States Court of Appeals, First Circuit

March 27, 2019

UNITED STATES OF AMERICA, Appellee,
v.
ROBERTO CRUZ-OLAVARRIA, Defendant, Appellant.

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

          Alejandra Bird López on brief for appellant.

          Rosa 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.

          Before Torruella, Lipez, and Kayatta, Circuit Judges.

          LIPEZ, Circuit Judge.

         Roberto 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.

         I.

         In June 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.[1]

         In a 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.

         The Sentence Recommendation provision of the plea agreement stated:

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 imprisonment.

         The 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."

         The district court sentenced Cruz-Olavarria to 120 months' imprisonment -- the statutory maximum -- for the new criminal conduct.[2] 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.

         Immediately after Cruz-Olavarria's sentencing on the new criminal charges, in the same proceeding, the district court separately considered the revocation sentence.[3] 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 18 ...


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