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United States v. Ortiz-Alvarez

United States Court of Appeals, First Circuit

April 19, 2019

UNITED STATES, Appellee,
v.
ERNESTO ORTIZ-ÁLVAREZ, Defendant, Appellant.

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

          Mariángela Tirado-Vales on brief for appellant.

          Rosa Emilia Rodríguez-Vélez, United States Attorney, Mariana E. Bauzá-Almonte, Assistant United States Attorney, Chief, Appellate Division, and Julia M. Meconiates, Assistant United States Attorney, on brief for appellee.

          Before Torruella, Lynch, and Thompson, Circuit Judges.

          LYNCH, CIRCUIT JUDGE.

         Ernesto Ortiz-Álvarez pled guilty, under a plea agreement, to illegal possession of a machine gun and to being a felon in possession of three firearms and ammunition in violation of 18 U.S.C. § 922(o) and (g). The district court sentenced Ortiz-Álvarez to sixty months' imprisonment.

         Ortiz-Álvarez argues on appeal that it was error for the district court not to decide, before imposing its sentence, whether the guidelines sentencing range (GSR) proposed in the presentence report (PSR) or the guidelines calculation agreed to in the plea agreement was correct. Instead, after reviewing the various calculations, the district court based its sentence on the other sentencing factors listed at 18 U.S.C. § 3553(a). On plain error review, we see no error. And, in any event, we find no prejudice in light of the district court's statements that the sentence would have been the same under any of the proposed GSRs. We affirm.

         I.

         Puerto Rico Police Department officers conducting surveillance at a location in Las Gardenias Public Housing Project known for drug sales noticed a man carrying a large plastic bag containing a green leafy substance. Believing that the substance was marijuana, the officers pursued the man, who ran from them and into an apartment.

         The police found the man in the apartment's living room with the plastic bag, which the officers later confirmed did hold marijuana, as well as heroin. As the officers were arresting the man, the defendant, Ortiz-Álvarez, opened the door of one of the apartment's bedrooms and emerged into the living room. Through the open bedroom door, the officers saw what appeared to be two firearms on top of the bedroom's dresser. They asked Ortiz-Álvarez if he had a weapons permit, and after Ortiz-Álvarez answered no, the officers entered the bedroom.

         There, the officers recovered the two firearms seen on the dresser: a loaded Glock .40 caliber pistol, Model 23, and a loaded Glock .40 caliber pistol, Model 22. Both Glocks had been modified to fire automatically as machine guns. The police also noticed an AK-47 assault rifle leaning against the wall next to the dresser. A fanny pack found nearby contained ammunition, three radio scanners, and ledgers documenting drug transactions.

         The officers arrested Ortiz-Álvarez, and a federal grand jury charged him with possession of a machine gun and being a felon in possession of firearms and ammunition in violation of 18 U.S.C. § 922(o) and (g). At the time, Ortiz-Álvarez was on state probation. In 2009, Ortiz-Álvarez had been sentenced to multiple years' probation for convictions for use of intimidation or violence against public authority, weapon possession, and felony attempted robbery.

          Ortiz-Álvarez pled guilty to the § 922(o) and (g) charges under a plea agreement. The plea agreement stipulated that Ortiz-Álvarez's prior state felony conviction for attempted robbery was a crime of violence under the sentencing guidelines, see U.S.S.G. §§ 2K2.1(a)(3); 4B1.2(a), and thus stated an elevated base offense level (BOL) of 22. Both the plea agreement and the PSR added to the BOL a two-level enhancement because the offense involved three firearms, see id. § 2K2.1(b)(1), and then reduced the BOL by three levels for timely acceptance of responsibility. Pursuant to these calculations, the plea agreement stated an ultimate total offense level (TOL) of 21.

         The plea agreement did not determine a criminal history category (CHC). Instead, the "parties . . . jointly recommend[ed] an imprisonment sentence of 46 months," stating further that "this recommendation is reasonable under the 18 U.S.C. § 3553(a) sentencing factors, regardless of the Guidelines' total offense level and criminal history category determined by the court at sentencing." That said, the TOL stipulated in the plea agreement corresponded to a GSR of thirty-seven to ...


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