United States v. Cruz-Fernandez ( 2015 )

Not for Publication in West's Federal Reporter
United States Court of Appeals
For the First Circuit
No. 13-2397
UNITED STATES OF AMERICA,
Appellee,
v.
JASON CRUZ-FERNÁNDEZ, a/k/a "El Terrible,"
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Daniel R. Domínguez, U.S. District Judge]
Before
Thompson, Selya, and Kayatta,
Circuit Judges.
José Olmo-Rodríguez on brief for appellant.
Rosa Emilia Rodríguez-Vélez, United States Attorney, Nelson
Pérez-Sosa, Assistant United States Attorney, Chief, Appellate
Division, and Tiffany V. Monrose, Assistant United States Attorney,
on brief for appellee.
April 7, 2015
THOMPSON, Circuit Judge. Jason Cruz-Fernández is a
serial supervised-release violator. Back in 2002 he pled guilty to
conspiring to possess and distribute at least 5 kilograms of
cocaine, see 21 U.S.C. §§ 841(a)(1) and 846 — a class A felony, see
United States v. Eirby, 515 F.3d 31, 36 (1st Cir. 2008). The
conspiracy ran from July 1998 to September 2000, by the way. And
the judge sentenced him to 70 months in prison followed by 5 years
of supervised release.
Cruz-Fernández served his jail time but got caught in
2010 violating his supervised-release conditions in the following
ways — failing to report to his probation officer, failing to
follow the officer's instructions, and failing to notify the
officer of a change of address. The judge revoked Cruz-Fernández's
supervised release in 2011 and sentenced him to 6 months in prison
plus 3 years of supervised release, warning him that if he did not
straighten up, the next time he appeared in court he could get hit
with the maximum authorized term of imprisonment.
Again Cruz-Fernández served his jail time. And again he
violated several supervised-release conditions, this time by having
illegal drugs, failing to make full financial disclosure to his
probation officer, and missing appointments with the officer — all
in 2013. The judge held a hearing (also in 2013) and heard
testimony from a probation officer about how Cruz-Fernández had
flunked drug tests; how the officer had seen him driving luxury
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cars (mostly Mercedes-Benzes) without providing financial documents
to explain why he had those autos; and how law-enforcement agents
sent to search his apartment had found a bag with 24.8 grams of
cocaine (they saw someone drop it from his bedroom window) as well
as 100 small plastic baggies (discovered in his bedroom). The
judge also had before him an affidavit from the probation officer
chronicling Cruz-Fernández's missed appointments with probation.
The judge, the prosecutor, and the probation officer
agreed that 54 months was the maximum statutory prison term for
Cruz-Fernández's latest supervised-release infractions — and Cruz-
Fernández's lawyer never quibbled with that number. Anyway, we
infer from the record that the 54-month figure came about this way:
A judge can reimprison a defendant for violating supervised-release
conditions. See 18 U.S.C. § 3583(e)(3). But Congress has put caps
on any new term, with the maximum possible sentence turning on the
seriousness of the original offense of conviction. See id. Cruz-
Fernández's original drug offense is a class A felony, meaning a 5-
year maximum reimprisonment cap applied. See id. The judge
concluded that the 5 years was an aggregate cap — i.e., that all
the prison time imposed for the supervised-release violations
counted toward the cap.1 And because Cruz-
1
From that we infer that the judge used the version of
section 3583(e)(3) in vogue when Cruz-Fernández did his drug crime.
See United States v. Tapia-Escalera, 356 F.3d 181, 185-88 (1st Cir.
2004) (dealing with a pre-2003 version of section 3583(e)(3) and
holding that the cap applies to the aggregate of all the jail time
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Fernández had already served 6 months for his 2010 supervised-
release infractions, he could now be sentenced up to 54 months in
prison: 60 months (the 5-year cap in months) - 6 months = 54
months. Neither side questions the judge's treating the 5-year cap
as an aggregate cap, so we say no more about it.
Moving on, the judge found (among other things) that
Cruz-Fernández had possessed cocaine — an express basis for
revocation of supervised release. See id. § 3583(g)(1). The
cocaine and baggies pointed toward drug distribution, the judge
noted, though he added later that possession was enough to trigger
revocation and resentencing under section 3583(g). Next the judge
concluded — and defense counsel did not contest — that the
guidelines' policy statements on supervised-release violations
recommended a 4-10 month range of imprisonment. See USSG
§ 7B1.4(a) (revocation table). Defense counsel made a plea for
leniency, contending, first, that Cruz-Fernández's drug addiction
flared up after his "grandmother passed away" and he "injured his
knee"; and second, that had he been convicted of possessing 24.8
grams of cocaine, his guidelines range would be "10 to 16 months."
Defense counsel thought a 10-month sentence would be enough.
But the judge was unmoved. "[D]rugs," the judge said,
are causing Cruz-Fernández to violate "the law" and his drug-
served for supervised-release violations — but noting that a 2003
amendment jettisoned the aggregation concept, so that the cap
applies "afresh" for each new revocation situation).
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related supervised-release conditions. And given his other
difficulties with supervised release (including his not giving
probation financial info concerning the cars as required), the
judged handed out a 48-month sentence for purposes of retribution
and deterrence. The judge also tacked 6 months of supervised
release onto the sentence.
Targeting only the prison portion of his sentence, Cruz-
Fernández first argues here that the 48-month term constitutes
cruel and unusual punishment. See U.S. Const. amend. VIII. But he
does not adequately develop the claim. Decisional law on how the
Constitution's cruel-and-unusual-punishment clause works in
noncapital cases is quite complicated. See, e.g., Graham v.
Florida, 560 U.S. 48, 86-87 (2010) (Roberts, C.J., concurring in
the judgment). At the risk of oversimplification, the clause
covers "a narrow proportionality principle" that "forbids only
extreme sentences that are grossly disproportionate" to the
underlying "crime." Harmelin v. Michigan, 501 U.S. 957, 997, 1001
(1991) (Kennedy, J., concurring in part and concurring in the
judgment); see Graham, 560 U.S. at 59-60 (calling Justice Kennedy's
Harmelin concurrence the "controlling opinion"); see also United
States v. Raymond, 697 F.3d 32, 40-41 (1st Cir. 2012). Yet Cruz-
Fernández never cites — let alone applies — this all-important
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standard, which is hardly the way to deal with a complex issue.2
See Tayag v. Lahey Clinic Hosp., Inc., 632 F.3d 788, 792 (1st Cir.
2011); see also Rodríguez-Machado v. Shinseki, 700 F.3d 48, 49 (1st
Cir. 2012) (per curiam). Needless to say, the argument is waived.
See, e.g., United States v. Zannino, 895 F.2d 1, 17 (1st Cir.
1990).
A criminal sentence must be substantively reasonable, of
course. See, e.g., United States v. Vargas-Dávila, 649 F.3d 129,
130-31 (1st Cir. 2011). Read generously, Cruz-Fernández makes two
arguments in his brief that feel like substantive-reasonableness
claims. But reviewing for abuse of discretion (because he floated
similar arguments below), see id. at 130, we see no reason to
reverse.
First up is Cruz-Fernández's suggestion that if the judge
had sentenced him simply for possessing 24.8 grams of cocaine, he
would have had a "10-16 months" guidelines range — which, he hints,
would have kept the judge from handing out a 48-month term. Cruz-
Fernández could only have gotten that range, though, by using the
drug-quantity table in section 2D1.1 of the guidelines. But he
never explains how or why that table has any relevance in a
revocation-of-supervised-release case, particularly since the judge
had to (and did) consider — but need not have followed — the
2
Cruz-Fernández cites one case, United States v. Booker, 543
U.S. 220 (2005), which is not an Eighth Amendment case.
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revocation table in section 7B1.4. See United States v. McInnis,
429 F.3d 1, 4 (1st Cir. 2005). So this argument is waived too.
See, e.g., Zannino, 895 F.2d at 17.
As a fallback, Cruz-Fernández protests that he should
have gotten a lighter sentence because he turned back to drugs only
after "his grandmother died and he hurt his leg." But defense
counsel made that pitch at the revocation hearing. And the judge
still decided that Cruz-Fernández's record as a recidivist
supervised-release violator and drug-law offender called for a 48-
month reimprisonment sentence. See Vargas-Dávila, 649 F.3d at 131
(discussing the relevant factors a judge must consider in this
context — including not only the offender's characteristics but
also deterrence and societal-protective needs). Yes, the sentence
is tough — it is well above the 4-10 month range suggested by
section 7B1.4, though below the 5-year statutory maximum. But
tough is not a synonym for unreasonable. See, e.g., United States
v. Flores-Machicote, 706 F.3d 16, 25 (1st Cir. 2013); United States
v. Vargas, 560 F.3d 45, 51 (1st Cir. 2009). And sure, maybe a
different judge might have given him a different sentence. But
what matters is whether our judge's rationale was "plausible" and
whether the sentence falls "within the expansive universe" of
acceptable outcomes. United States v. King, 741 F.3d 305, 308 (1st
Cir. 2014). Measured against that standard, the judge's sentence
passes muster. See United States v. Del Valle-Rodríguez, 761 F.3d
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171, 177 (1st Cir.) (stressing that "there is no perfect
sentence"), cert. denied, 135 S. Ct. 293 (2014).
Affirmed.
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