United States v. Robles-Pabon , 892 F.3d 64 ( 2018 )

United States Court of Appeals
For the First Circuit
No. 16-2455
UNITED STATES OF AMERICA,
Appellee,
v.
RODNEY ROBLES-PABON,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Francisco A. Besosa, U.S. District Judge]
Before
Howard, Chief Judge,
Boudin and Lynch, Circuit Judges.
Jane Elizabeth Lee on brief for appellant.
Elizabeth H. Danello, Attorney, Appellate Section, Criminal
Division, United States Department of Justice, Rosa E.
Rodríguez-Vélez, United States Attorney, John P. Cronan, Acting
Assistant Attorney General, Thomas F. Klumper, Acting Chief,
Appellate Division, and Laura G. Montes-Rodriguez, Assistant
United States Attorney, on brief for appellee.
June 8, 2018
BOUDIN, Circuit Judge. Rodney Robles-Pabon ("Robles"),
on a plea of guilty in the district court, was convicted of
conspiracy to possess with intent to distribute cocaine and
marijuana, 21 U.S.C. §§ 846, 841(a)(1), and 841(b)(1)(C), and
possession of a firearm in furtherance of a drug-trafficking crime,
18 U.S.C. § 924(c)(1)(A). The district court sentenced him to
twenty-one months on the first count and seventy-two months on the
second, the latter to be served after the first sentence, for a
total of ninety-three months. He now appeals to contest his
sentences.
On December 17, 2015, federal agents searched a house in
Arecibo, Puerto Rico, and found Robles hiding in a closet. The
agents found drugs, currency, cell phones, AK-47 ammunition, high
capacity magazines, and a chip to modify a Glock firearm.
Searching a car parked at the residence, agents found Robles'
passport and a loaded Glock pistol, among other things. Neither
search is contested on this appeal.
A grand jury indicted Robles on six counts, but on July
22, 2016, Robles agreed with the government to plead guilty to the
two counts already described. The plea agreement contained
guideline calculations, one of which endorsed a decrease by two
levels for acceptance of responsibility, U.S.S.G. § 3E1.1(a),
ignoring the possibility of a three-level reduction under the
governing guideline, U.S.S.G. § 3E1.1(b). The district court
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entered the guilty plea and a presentence investigation report
followed.
On November 4, 2016, the district judge at the sentencing
hearing, relying on the 2015 version of the guidelines, approved
a two-level reduction for acceptance of responsibility and imposed
the sentences set forth above. This appeal followed, asserting as
errors the alleged ineffective assistance of trial counsel in
failing to secure the three-level reduction, error by the trial
judge in ignoring the potential three-level reduction, and various
claimed infirmities in the district court's choice of sentence.
In response, the government parries. It denies that
Robles' attorney can on this record be shown to be ineffective but
says that "because Robles could establish attorney ineffectiveness
in a proceeding under 28 U.S.C. § 2255," this court "should vacate
the sentence and remand to allow the government to file a Section
3E1.1(b) motion," presumably to secure the extra level reduction
and allow Robles to be resentenced.
Given the joint agreement that Robles deserves the extra
level decrease and resentencing, and seeing no reason to disagree,
we turn to Robles' further claims, which are two. The one merely
repeats the request for a third level decrease under a different
heading (judge error as opposed to counsel error) but the other is
a multipart attack on the prior sentencing on grounds that bear
upon any further sentencing proceeding of this defendant.
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Patently the district court, as expressed in the
sentencing colloquy, intended to vary upward from the guideline
sentence, although the judge and the parties would not necessarily
share the same view of what would constitute a proper guidelines
range. The attacks on the upward variance are that the court
relied on unsubstantiated facts, failed to explain adequately the
variance and did not "individualize" Robles' sentence as required
in Gall v. United States, 522 U.S. 38 (2007), and other precedents
including our own, e.g., United States v. Vázquez, 854 F.3d 126,
130 & n.2 (1st Cir. 2017).
Robles' counsel argues that in varying upward, the
district court relied importantly on its belief that the murder
rate in Puerto Rico had decreased significantly because of a joint
firearms initiative. The district court referred to such a belief,
but taken as a whole, its rationale was far more straightforward:
that Robles was an armed and dangerous drug dealer whose criminal
behavior should be strongly discouraged by an upward variance.
In a set of cases, this court has upheld upward variances
on roughly similar facts and, in a leading case, focused on the
requirement that a variance be reasonable and found it satisfied.
See United States v. Rivera-González, 776 F.3d 45, 50-51 (1st Cir.
2015) (Selya, J.); see also United States v. Garay-Sierra, 885
F.3d 7, 15-16 (1st Cir. 2018) (Thompson, J.); United States v.
Fuentes-Echevarria, 856 F.3d 22, 25-26 (1st Cir. 2017) (Howard,
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C.J.); Vázquez, 854 F.3d at 130 (Torruella, J.); United States v.
Zapata-Vázquez, 778 F.3d 21, 23-24 (1st Cir. 2015) (Kayatta, J.).
Like the appellants in the cases just cited, Robles
argues that the district court's concern with gun violence is a
community consideration not adequately directed to him as an
individual. But the district court here did explore Robles'
characteristics in detail and did not centrally rely on community
considerations. Vázquez, 854 F.3d at 130 & n.2. The district
court's discussion of Robles' youth, lack of firearms training,
and history of drug dealing is the very individualization for which
the case law calls.
In all events, Robles made no objection at sentencing
that the district court's explanation was inadequate. Given the
precedents in this circuit, the upward variance is not "plain
error" that can rescue an unpreserved objection. For a modest
variance like the one imposed here, the district court's
explanation is sufficient. Cf. United States v. Ortiz–Rodríguez,
789 F.3d 15, 18–20 (1st Cir. 2015).
The district court used a standard script prepared and
deployed by the same judge for cases like Robles' of which there
are many. But scripts--what else are plea dialogues and pattern
instructions but scripts?--are efficient and commonplace for busy
district judges. And there was nothing perfunctory or dismissive
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about the district court's sentencing in this case. The judge did
efficiently but fairly his difficult job.
The government is to be thanked for simplifying matters
through its concession that Robles' trial counsel had failed to
detect the possibility of an extra level decrease and its further
concession that the extra decrease was justified. We see no reason
for the motion practice proposed by the government, but the
substance of its proposal does credit to the Department.
The judgment imposing the sentences is vacated and the
matter remanded for resentencing. The court is free to consider
imposing the same sentence if it thinks it has grounds for doing
so despite the extra level reduction, but it will surely give
counsel on both sides the opportunity to address the issue of a
variance anew if the court is thinking in that direction.
It is so ordered.
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