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United States v. Rodríguez-Reyes

United States Court of Appeals, First Circuit

June 5, 2019



          Luis A. Guzmán Dupont for appellant.

          David C. Bornstein, Assistant United States Attorney, with whom Mariana E. Bauzá-Almonte, Assistant United States Attorney, Chief, Appellate Division, Thomas F. Klumper, Assistant United States Attorney, Senior Appellate Counsel, and Rosa Emilia Rodríguez-Vélez, United States Attorney, were on brief, for appellee.

          Before Torruella, Selya, and Lynch, Circuit Judges

          LYNCH, Circuit Judge.

         This is a challenge to the imposition of an upwardly variant sentence of thirty-six months' imprisonment, following a guilty plea by José Francisco Rodríguez-Reyes (Rodríguez) to a charge of being a felon in possession of a firearm, in violation of 18 U.S.C. § 922(g)(1). The firearm was an AM-15 multi-caliber assault rifle which accepted 5.56 millimeter military-style ammunition. Rodríguez tried unsuccessfully to escape arrest. Rodríguez did not challenge either the procedural or substantive reasonableness of the sentence in the district court.

         As to procedural reasonableness, Rodríguez argues on appeal that the district court: (1) erred in the course of sentencing by discussing Rodríguez's arrests that did not result in convictions; (2) failed to consider adequately the 18 U.S.C. § 3553(a) factors; and (3) erred in varying upward from the government's sentencing recommendation. As to substantive reasonableness, Rodríguez argues that (1) the district court did not sufficiently consider unspecified mitigating factors and the reasons for the government's sentencing recommendation, and (2) the sentence imposed was longer than necessary.

         Finding no reversible error, we affirm Rodríguez's sentence.


         "When a sentencing appeal follows a guilty plea, 'we glean the relevant facts from the change-of-plea colloquy, the unchallenged portions of the presentence investigation report . . . and the record of the disposition hearing.'" United States v. Dávila-González, 595 F.3d 42, 45 (1st Cir. 2010) (quoting United States v. Vargas, 560 F.3d 45, 47 (1st Cir. 2009)).

         A. Facts of the Offense

         On February 23, 2017, officers from the Puerto Rico Police Department (PRPD) received information about a future firearm transaction, including the location, date, time, and description of vehicles likely to be involved. PRPD officers, along with agents from the federal Department of Homeland Security (DHS), during surveillance observed Rodríguez and two other men standing near the rear hatch of a Jeep Cherokee looking at a rifle. Rodríguez drove away in the Jeep and the police officers and agents followed by car; Rodríguez then parked and entered the car of another man involved in the attempted firearm transaction. The men noticed the police officers and agents and fled by vehicle. Their vehicle eventually crashed, and the officers detained the two men. After Rodríguez and the other man consented to a search of the vehicles, the officers and agents found an AM-15 multi-caliber rifle, which Rodríguez admitted to purchasing online and was planning to sell for $2, 000.

          B. Procedural History

         On March 8, 2017, a federal grand jury in Puerto Rico indicted Rodríguez on one count of being a felon in possession of a firearm and one count of being an unlawful drug user in possession of a firearm, in violation of 18 U.S.C. §§ 922(g)(1) and (3), as well as aiding and abetting a co-defendant in the same two counts, in violation of 18 U.S.C. § 2. Rodríguez had been convicted of prior felony charges. On May 11, 2017, Rodríguez pleaded guilty to the one count of being a felon in possession of a firearm, and the plea agreement provided for a total offense level (TOL) of twelve.

         The Presentence Investigation Report (PSR) followed the parties' calculations from the plea agreement, with a TOL of twelve resulting from a base level of fourteen and the removal of two levels for acceptance of responsibility. See U.S.S.G. § 3E1.1(a). Rodríguez had three prior convictions: two state illegal drug possession convictions in Texas (one for marijuana, one for both marijuana and cocaine), and a federal conviction for conspiracy to commit mail fraud and bank fraud in Puerto Rico. This gave Rodríguez a criminal history category (CHC) of III. A TOL of twelve and a CHC of III led to a guideline imprisonment range of fifteen to twenty-one months.

         The PSR also listed, as required, six arrests which did not lead to convictions (but also did not lead to acquittals), four of which related to Rodríguez's illegal drug possession.[1] See Fed. R. Crim. P. 32(d)(2)(A)(i) (requiring that the PSR contain information on "the defendant's history and characteristics, including . . . any prior criminal record"). The drug arrests are discussed below. The PSR also stated that "[i]n this case a variance [may be] considered since the defendant has a high risk of recidivism." That risk was evidenced by, inter alia, Rodríguez's prior criminal history (which took three pages of the PSR to recount), the fact that the offense of conviction took place within five months of his completion of a supervised release term from his federal mail and bank fraud imprisonment, and a pending arrest warrant against him in El Paso, Texas for illegal possession of marijuana. By the time of completion of the PSR, the pending Texas "charge was dismissed" because Rodríguez "was convicted in another case."

         The PSR also described a history of illegal drug use by Rodríguez spanning more than twenty-five years. Rodríguez stated that he began smoking marijuana at the age of twelve and smoked marijuana approximately five times per day, having returned to drug use in 2002 after a one-year break following a drug treatment program (completed pursuant to a 2000 Puerto Rico drug charge). Indeed, Rodríguez tested positive for marijuana on February 27, 2017, shortly after his arrest in the present case. He also stated that he began using cocaine and Percocet when he was twenty-six, in 2004 or 2005. The PSR also stated that Rodríguez and his then-wife separated in 2005 "[a]s a result" of Rodríguez's "mari[j]uana addiction."

         In his sentencing memorandum, Rodríguez did not object to the PSR or any facts within the PSR, including the facts as to the disposition of his arrests and his drug use (he did say that some of his debt had been paid off). ("The Pre-Sentence Report was discussed with [Rodríguez] and there are no objections.") His sentencing memorandum acknowledged that Rodríguez "ha[d] been using Mari[j]uana since age 12 on a daily basis" and his drug use "ha[d] escalated to the use of Cocaine and Percocet."

         C. Sentencing Hearing

         In his sentencing memorandum and at the sentencing hearing, Rodríguez requested a sentence of fifteen months' imprisonment, at the bottom of the guidelines range. Rodríguez's counsel expressly referred to the sentencing memorandum at the hearing. He did not dispute the PSR's calculations. At the sentencing hearing, the government requested a sentence of twenty-one months' imprisonment, at the top of the guidelines range. It explained the disposition of Rodríguez's arrests that had not led to convictions, and Rodríguez's counsel stated that he had no objections to the government's explanation.

         The district court accepted the PSR's calculations of the TOL, the CHC, and the guidelines range. The district court then listed Rodríguez's prior arrests that did not lead to convictions, accurately describing the PSR and the government's explanation of the disposition of these arrests.

         Explaining why it was following the recommendation of the probation officer and imposing an upwardly variant sentence (as recommended by the probation officer), the district court gave a number of reasons and justifications. To start, it stated that "neither [side's] sentence recommendation reflects the seriousness of the offense, promotes respect for the law, protects the public from further crimes by [Rodríguez], or addresses the issues of deterrence and punishment." These statements track closely the sentencing factors laid out at 18 U.S.C. § 3553(a)(2)(A), (B) and (C).[2] The district court stated that it was also "taking into consideration that [Rodríguez's] criminal history category is underrepresented."

          The district court noted Rodríguez's "encounters with the law since he was 21 years old," as well as Rodríguez's "recidivism, his drug use history, [and] his lack of steady employment." The drug use described was that noted earlier, as well as Rodríguez's positive test for marijuana on the date of his arrest for the offense of conviction. The district court also stated that the arrest for the present firearm offense came "less than five months after having completed his supervised release term" for his federal wire and bank fraud conviction. The district court further stated that it was "taking into consideration the nature of the weapon involved, an assault rifle, which accepts 5.56 millimeter military ammunition."

         After describing these reasons for the variance, the district court then imposed an upwardly variant sentence of thirty-six months' imprisonment. That variant sentence is well under the statutory maximum of 120 months. See 18 U.S.C. § 924(a)(2). At the sentencing hearing, Rodríguez did not object to the sentence or challenge its substantive or procedural ...

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