United States v. Bermudez-Melendez , 827 F.3d 160 ( 2016 )

United States Court of Appeals
For the First Circuit
No. 14-2209
UNITED STATES OF AMERICA,
Appellee,
v.
EDGARDO L. BERMÚDEZ-MELÉNDEZ,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. José Antonio Fusté, U.S. District Judge]
Before
Thompson, Selya and Barron,
Circuit Judges.
José L. Nieto-Mingo and Nieto Law Offices 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.
June 28, 2016
SELYA, Circuit Judge. In this sentencing appeal,
defendant-appellant Edgardo L. Bermúdez-Meléndez mounts a multi-
faceted challenge to his upwardly variant sentence for a firearms
offense. After careful consideration, we affirm.
I.
Inasmuch as this appeal trails in the wake of a guilty
plea, we draw the facts from the non-binding plea agreement (the
Agreement), the change-of-plea colloquy, the undisputed portions
of the presentence investigation report (PSI Report), and the
transcript of the disposition hearing. See United States v.
Almonte-Nuñez, 771 F.3d 84, 86 (1st Cir. 2014). On November 27,
2013, Puerto Rico police officers executed a search warrant at the
appellant's residence in Guaynabo. Upon their arrival, the
appellant fled into a wooded area near the house, jumped off a
small cliff, and broke both legs. A subsequent inspection of the
fallen man and his possessions revealed quantities of powdered
cocaine, crack cocaine, and marijuana, an AK-47 assault rifle, and
a collection of magazines and ammunition. More magazines and
ammunition, along with a Glock pistol, were found in the
appellant's living room.
In due season, a federal grand jury returned a four-
count indictment. Counts 1 through 3 charged the appellant with
a litany of drug-trafficking crimes, while count 4 — the only count
in issue here — charged him with possession of a firearm in
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furtherance of a drug-trafficking crime. See 18 U.S.C.
§ 924(c)(1)(A). After initially maintaining his innocence, the
appellant relented and entered into the Agreement, in which he
agreed to plead guilty to count 4 in exchange for the dismissal of
the other charges. Among other things, the Agreement memorialized
a joint sentencing recommendation of 72 months' immurement.
At the change-of-plea hearing, the district court
accepted the appellant's guilty plea to count 4 and ordered the
preparation of the PSI Report. In the completed Report, the
probation office noted that the statute of conviction required a
minimum 60-month term of imprisonment. See 18 U.S.C. § 924(c)(1);
USSG §2K2.4(b). It further noted that it had identified no factors
demanding an upward variance (but it did not foreclose the
possibility of such a variance).
At sentencing, the parties urged the district court to
impose the agreed 72-month sentence. The court demurred,
concluding that a stiffer sentence was in order. It then meted
out a 90-month incarcerative term.1 This timely appeal ensued.
II.
We pause at the threshold to brush aside the waiver-of-
appeal clause contained in the Agreement. That clause conditioned
the waiver on the imposition of a sentence in "accordance with the
1 The court, in pursuance of the Agreement, also dismissed the
three remaining counts.
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terms and conditions set forth in the Sentence Recommendation
provisions of [the Agreement]." The sentence levied by the
district court was not within the compass of the Sentence
Recommendation provisions. It follows that the waiver-of-appeal
clause is a dead letter and does not pretermit this appeal. See,
e.g., United States v. Vargas-García, 794 F.3d 162, 165 n.2 (1st
Cir. 2015).
III.
This brings us to the appellant's asseverational array.
It is familiar lore that we review challenges to the reasonableness
of a sentence by means of a two-step pavane. See Gall v. United
States, 552 U.S. 38, 51 (2007); United States v. Martin, 520 F.3d
87, 92 (1st Cir. 2008). We begin by examining assignments of
procedural error, which include "failing to calculate (or
improperly calculating) the Guidelines range, treating the
Guidelines as mandatory, failing to consider the § 3553(a) factors,
selecting a sentence based on clearly erroneous facts, or failing
to adequately explain the chosen sentence — including an
explanation for any deviation from the Guidelines range." Gall,
552 U.S. at 51. Once this hurdle is cleared, we then appraise the
substantive reasonableness of the sentence, "tak[ing] into account
the totality of the circumstances, including the extent of any
variance from the Guidelines range." Id.
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In determining substantive reasonableness, substantial
respect is due to the sentencing court's discretion. See id. This
deferential approach recognizes that though "[a] sentencing court
is under a mandate to consider a myriad of relevant factors
. . . the weighting of those factors is largely within the court's
informed discretion." United States v. Clogston, 662 F.3d 588,
593 (1st Cir. 2011). Even with respect to an upwardly variant
sentence, an appellate court "must give due deference to the
district court's decision that the [18 U.S.C.] § 3553(a) factors,
on a whole, justify the extent of the variance." Gall, 552 U.S.
at 51.
In carrying out these tasks, our standard of review is
for abuse of discretion. See id.; United States v. Narváez-Soto,
773 F.3d 282, 285 (1st Cir. 2014). We caution, however, that this
standard of review is not monolithic: within it, we review
conclusions of law de novo and findings of fact for clear error.
See Narváez-Soto, 773 F.3d at 285; United States v. Walker, 665
F.3d 212, 232 (1st Cir. 2011).
A.
Against this backdrop, we turn first to the appellant's
claims of procedural error. To this end, the appellant argues
that the district court failed to give an adequate explanation for
the sentence imposed and, in the bargain, failed to make an
individualized assessment of his history and characteristics. He
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adds that the district court mischaracterized his inventory of
weapons and ammunition. We deal with these claims of procedural
error one by one. Because none of them was raised below, "the
plain error standard supplants the customary standard of review."
United States v. Dávila-González, 595 F.3d 42, 47 (1st Cir. 2010).
Review for plain error is not appellant-friendly. That
review "entails four showings: (1) that an error occurred (2) which
was clear or obvious and which not only (3) affected the
defendant's substantial rights, but also (4) seriously impaired
the fairness, integrity, or public reputation of judicial
proceedings." United States v. Duarte, 246 F.3d 56, 60 (1st Cir.
2001).
1.
The appellant's principal procedural challenge
implicates 18 U.S.C. § 3553(c), which obliges a sentencing court
to "state in open court the reasons for its imposition of the
particular sentence." This statutory imperative has consistently
been "read in a practical, common-sense way," Dávila-González, 595
F.3d at 48, mindful that the adequacy of a sentencing court's
explanation must be judged case by case.
Even so, a sentencing court need not "be precise to the
point of pedantry." United States v. Turbides-Leonardo, 468 F.3d
34, 40 (1st Cir. 2006). To satisfy its burden of explanation, the
sentencing court need do no more than identify the main factors
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behind its decision. See United States v. Sepúlveda-Hernández,
817 F.3d 30, 33 (1st Cir. 2016).
In the case at hand, there is no applicable guideline
sentencing range; the statutory mandatory minimum sentence (here,
60 months) is the guideline sentence. See USSG §2K2.4(b), comment.
(n.2); see also Vargas-García, 794 F.3d at 166; United States v.
Rivera-González, 776 F.3d 45, 49 (1st Cir. 2015). In such a
situation — that is, when application of the sentencing guidelines
yields a singular guideline sentence rather than a guideline
sentencing range — a sentence in excess of the guideline sentence
should be treated as an upward variance. See United States v.
Oquendo-Garcia, 783 F.3d 54, 56 (1st Cir. 2015). Thus, the
sentence imposed below was the functional equivalent of an upward
variance of 30 months. This is potentially important because an
upwardly variant sentence usually requires a fuller explanation
than a guideline sentence. See Gall, 552 U.S. at 50; United States
v. Montero-Montero, 817 F.3d 35, 37 (1st Cir. 2016).
At the disposition hearing, the district court commented
upon the appellant's frequent brushes with the law, the seriousness
of the offense of conviction, and the need to promote both
deterrence and respect for the law. The court then noted the joint
sentencing recommendation2 and stated: "I don't think that that is
2The court recalled the joint sentencing recommendation as 70
months' imprisonment, not 72 months' imprisonment. Obviously, the
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enough considering the nature of the firearms, the amount of
ammunition, the kind of magazines, the whole bit. It's an arsenal
. . . ."
This explanation is lean, but we think it sufficient to
withstand plain error review. After all, the appellant had
assembled an impressive array of munitions: an AK-47 assault rifle,
at least 11 high-capacity magazines, roughly 270 rounds of
ammunition (in various calibers), and a Glock pistol. To make
matters worse, he possessed these munitions in close proximity to
a trove of illegal drugs. Where — as here — "the record permits
a reviewing court to identify both a discrete aspect of an
offender's conduct and a connection between that behavior and the
aims of sentencing, the sentence is sufficiently explained to pass
muster under section 3553(c)." United States v. Fernández-
Cabrera, 625 F.3d 48, 54 (1st Cir. 2010).
This conclusion is strengthened by the fact that the
appellant himself acknowledged the appropriateness of an upward
variance: he agreed to the imposition of a 72-month sentence (an
upward variance of 12 months over the guideline sentence). The
sentencing court's determination that the gravity and
circumstances of the offense of conviction warranted an additional
18 months of imprisonment was not plain error.
court misspoke. In context, though, this slip of the tongue is
inconsequential.
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Nor is there any basis here for the appellant's
suggestion that the district court was obliged to explain why it
rejected the parties' joint recommendation for a 72-month
sentence. See United States v. Ruiz-Huertas, 792 F.3d 223, 228
(1st Cir.), cert. denied, 136 S. Ct. 258 (2015). Although a
sentencing court typically has a duty to explain why it selected
a particular sentence, it has "no corollary duty to explain why it
eschewed other suggested sentences." United States v. Vega-
Salgado, 769 F.3d 100, 104 (1st Cir. 2014).
2.
The appellant's second claim of procedural error posits
that the district court did not individualize his sentence and,
thus, overlooked some sentencing factors. But at the disposition
hearing, the court clearly indicated its awareness of the
appellant's personal history and characteristics. For example, it
engaged explicitly with the appellant's drug consumption, the
absence of any mental health issues, and the like. There is no
reason to believe that the court neglected to factor this
information into the sentencing calculus. For aught that appears,
the appellant's real complaint is not that the court ignored his
history and personal characteristics but that it weighed those
factors less favorably than he would have liked. Assigning weight
to pertinent sentencing factors is, within wide limits, a
prototypical exercise of a sentencing court's discretion, see
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Rivera-González, 776 F.3d at 50, and those wide limits were not
exceeded here.
3.
The appellant's procedural challenge has a final facet:
he attacks the district court's use of the term "arsenal" in
describing the assortment of firearms and ammunition at his
residence.3 This attack is easily repulsed.
While the court may have engaged in hyperbole,
sentencing courts are entitled to broad latitude in their
linguistic choices. Consequently, gratuitous rhetorical
flourishes, without more, will not render a sentence infirm. See
United States v. Flores-Machicote, 706 F.3d 16, 22-24 (1st Cir.
2013). So it is here: the court's meaning was clear, and its use
of the term "arsenal" in no way compromised the legitimacy of the
sentence imposed.
B.
Having cleared the procedural hurdles, we come next to
the appellant's assertion that the length of his sentence renders
it substantively unreasonable. This assertion rests largely on
3 For example (as quoted above), the court said when it
pronounced sentence: " . . . considering the nature of the
firearms, the amount of ammunition, the kind of magazines, the
whole bit. It's an arsenal . . . ." To cite another example, the
court remarked, at an earlier point during the disposition hearing,
"when you have this [sic] kind of firearms, this is what you call
an arsenal."
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his plaint that the district court relied too heavily on acts of
violence in the general community in formulating an overly harsh
sentence.
Even though the appellant did not advance this claim of
error below, the standard of review is in doubt. See Ruiz-Huertas,
792 F.3d at 228 (discussing conflicting case law with respect to
application of plain error standard to claims that a sentence is
substantively unreasonable). We need not answer that open question
today: assuming, favorably to the appellant, that review is for
abuse of discretion, the claim of error founders.
The "touchstone of abuse of discretion review in federal
sentencing is reasonableness." United States v. Vargas-Dávila,
649 F.3d 129, 130 (1st Cir. 2011). Reasonableness is itself an
inherently fluid concept. See Martin, 520 F.3d at 92. In any
given case, "[t]here is no one reasonable sentence . . . but,
rather, a universe of reasonable sentencing outcomes." Clogston,
662 F.3d at 592.
A challenge to the substantive reasonableness of a
sentence pivots on whether the sentencing court has offered a
plausible rationale for the sentence and whether the sentence
itself represents a defensible outcome. See United States v.
Madsen, 809 F.3d 712, 720 (1st Cir. 2016); Martin, 520 F.3d at 96.
In this instance, the sentencing court's rationale was plausible.
As we already have explained, the court's reasoning stressed the
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nature of the firearms, the quantity and variety of ammunition,
and the diverse assortment of magazines found in the appellant's
possession. Additionally, the court noted the seriousness of the
offense, the need to promote both deterrence and respect for the
law, and the appellant's past difficulties with the authorities.
So viewed, the upwardly variant sentence was grounded in a
plausible sentencing rationale and "serve[d] the objectives of
sentencing." Kimbrough v. United States, 552 U.S. 85, 91 (2007).
To be sure, the district court did embellish this
rationale. For example, it stated during the disposition hearing,
"How many more, how many more firearms are we going to allow on
the streets of this island? How many more acts of violence?"
Spotlighting such comments, the appellant suggests that the
court's sentencing rationale was tainted by its concerns about
community-based considerations. We do not agree.
We have squarely held that a district court may consider
community-based and geographic factors in formulating its
sentence. See Flores-Machicote, 706 F.3d at 22-23. The court
here did not stray beyond this limited grant of authority: though
it decried the pervasive problems associated with violent crimes
in Puerto Rico, it did so only glancingly — and then, only in
connection with the need for deterrence. Throughout, the court
remained attentive to the particulars of the appellant's case and
(as noted above) engaged with his personal history and
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characteristics. So, too, the court took into account the stark
fact that the appellant used his dwelling as a storage facility
for guns, magazines, and ammunition. Under these circumstances,
we discern no abuse of discretion in the sentencing court's linkage
between community-based considerations and the need for
deterrence.
Nor does the length of the appellant's sentence (90
months) seem indefensible. The offense of conviction is quite
serious, the circumstances of its commission are particularly
troubling, and the sentence imposed represents only a modest
increase over the sentence (72 months) that the appellant himself
thought condign. Seen in this light, the sentence fits comfortably
within the universe of reasonable sentencing outcomes. We
therefore reject the claim of substantive unreasonableness.
IV.
We need go no further. For the reasons elucidated above,
the appellant's sentence is
Affirmed.
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