FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF
PUERTO RICO [HON. FRANCISCO A. BESOSA, U.S. DISTRICT JUDGE]
A. Guzmán Dupont for appellant.
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.
Torruella, Selya, and Lynch, Circuit Judges
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
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.
no reversible error, we affirm Rodríguez's
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)).
Facts of the Offense
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.
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.
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.
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. 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
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
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
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
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
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). The district court stated that it
was also "taking into consideration that
[Rodríguez's] criminal history category is
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."
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 ...