United States v. Concepcion-Montijo ( 2017 )

United States Court of Appeals
For the First Circuit
No. 16-1666
UNITED STATES OF AMERICA,
Appellee,
v.
HERMINIO CONCEPCIÓN-MONTIJO,
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,
Torruella and Lynch, Circuit Judges
Liza L. Rosado-Rodríguez, Research and Writing Specialist,
Eric Alexander Vos, Federal Public Defender, and Vivianne M.
Marrero, Assistant Federal Public Defender, Supervisor, Appeals
Section, on brief for appellant.
Mainon A. Schwartz, Assistant United States Attorney, Rosa
Emilia Rodríguez-Vélez, United States Attorney, and Mariana E.
Bauzá-Almonte, Assistant United States Attorney, Chief, Appellate
Division, on brief for appellee.
November 13, 2017
PER CURIAM. Herminio Concepción-Montijo pled guilty to
a single count of being a felon in possession of a firearm. See
18 U.S.C. § 922(g)(1). The district court sentenced Concepción to
a 120-month statutory maximum term of imprisonment. On appeal,
Concepción argues first that the court committed procedural error
by improperly calculating the applicable guideline sentencing
range ("GSR"), and second that his sentence is substantively
unreasonable because the court undervalued Concepción's personal
circumstances.
Turning first to his claim of procedural error,
Concepción argues that the district court improperly relied on
unauthenticated documents to apply a career-offender enhancement
based on a previous conviction for residential burglary in
Illinois.1 However, in adopting the probation officer's
recommended 120-month sentence -- an upward variance from the top
end of the GSR -- the district court explained:
The probation officer has indicated that,
whether or not his offense level were 13 and
his Criminal History Category [were] IV, as
argued by Mr. Concepcion, he would recommend
this sentence, and the Court agrees.
1
In the district court, rather than paying the fees that Cook
County, Illinois, charged for printing official court documents,
the government instead introduced a letter from the relevant
federal probation office, a police report, and a court docket
printout, to establish Concepción's residential burglary
conviction.
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The district court further justified its variance based on
"Concepción's extensive criminal history of drug possession and
trafficking and weapons possession includ[ing] charges in the
States of Illinois, New Jersey, New Mexico, as well as in Puerto
Rico."
As the court's words make plain, it focused not on
Concepción's Illinois residential burglary conviction to justify
its variant sentence, but rather on his numerically and
geographically expansive record of drug and weapons charges. It
thus concluded that it would have imposed the same sentence
regardless of the applicable offense level and criminal history
category. Accordingly, any error in the calculation of
Concepción's GSR was harmless. See United States v. Magee, 834
F.3d 30, 38 (1st Cir. 2016).
Turning next to Concepción's claim of substantive error,
we first note that "[a]lthough an appellate court must take into
account the full extent of any variance, the dispositive question
remains whether the sentence is reasonable in light of the totality
of the circumstances." United States v. Santiago-Rivera, 744 F.3d
229, 234 (1st Cir. 2014) (citation omitted). "[T]he lynchpin of
a reasonable sentence is a plausible sentencing rationale and a
defensible result." Id. (quoting United States v. Martin, 520
F.3d 87, 96 (1st Cir. 2008)). Moreover, a court is "well within
its discretion in giving greater weight to [a defendant's] criminal
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history than other factors." United States v. Arroyo-Maldonado,
791 F.3d 193, 200 (1st Cir. 2015).
Here, the court stated that it considered "the section
3553(a) factors, the elements of the offense, Mr. Concepcion's
participation in it, the need to promote respect for the law and
protect the public from further crimes by Mr. Concepcion, as well
as the issues of deterrence and punishment." It further explained
that it believed that Concepción's "criminal history category,
[which the probation officer had calculated as] the highest
possible, substantially under-represents the seriousness of his
criminal history or the likelihood that he will commit other crimes
in the future." See United States v. Flores-Machicote, 706 F.3d
16, 21 (1st Cir. 2013) (justifying an upward variance where the
sentencing court concluded "that an asymmetry exists which results
in a substantial underestimation of the defendant's criminal
history"); United States v. Politano, 522 F.3d 69, 74–75 (1st Cir.
2008) (justifying an upward variance where the sentencing court
concluded that a defendant's "likelihood of recidivism was
underestimated in the Guidelines").
In concluding that the statutory maximum sentence was
justified because this incident -- the attempted sale of a stolen
.22 caliber rifle -- was just the latest in a pattern of serious
crimes, the district court offered a plausible rationale for its
variance grounded in both "the nature and circumstances of the
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offense" and the "characteristics of the offender." See Santiago-
Rivera, 744 F.3d at 234 (quoting Martin, 520 F.3d at 91). We
therefore find no abuse of the district court's broad sentencing
discretion in this case.
For the foregoing reasons, we AFFIRM.
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