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.
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.
Torruella, Lynch, and Thompson, Circuit Judges.
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.
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.
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.
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.
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
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.
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 ...