United States v. Reyes-Gomez , 927 F.3d 9 ( 2019 )

United States Court of Appeals
For the First Circuit
No. 17-1757
UNITED STATES OF AMERICA,
Appellee,
v.
FRANCISCO REYES-GOMEZ,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Juan M. Pérez-Giménez, U.S. District Judge]
Before
Lynch, Stahl, and Lipez,
Circuit Judges.
Mariángela Tirado-Vales on brief for appellant.
Rosa Emilia Rodríguez-Vélez, United States Attorney, Mariana
E. Bauzá-Almonte, Assistant United States Attorney, Chief,
Appellate Division, and B. Kathryn Debrason, Assistant United
States Attorney, on brief for appellee.
June 11, 2019
LIPEZ, Circuit Judge. Defendant Francisco Reyes-Gomez
claims on appeal that the sentence imposed by the district court
was substantively unreasonable. Although the sentencing judge
found that Reyes-Gomez qualified for the safety valve exception to
the 120-month mandatory minimum sentence, he nonetheless imposed
a 135-month term of imprisonment. We affirm.
I.
Reyes-Gomez pled guilty to conspiracy to import a
controlled substance (Count One), 21 U.S.C. §§ 952(a), 960(a)(1)
& (b)(1)(B), 963, and unlawful entry into the United States (Count
Five), 8 U.S.C. § 1325(a)(1). He faced a 120-month mandatory
minimum term of imprisonment for Count One.
Reyes-Gomez and the government entered into a plea
agreement, which included the following "Sentence Recommendation"
provision:
After due consideration of the relevant
factors enumerated in Title 18, United States
Code, Section 3553(a), the parties reserve the
right to recommend a sentence [of] 120 months
for COUNT ONE. For COUNT FIVE, the parties
will recommend a sentence of six months to run
concurrent with the sentence imposed in COUNT
ONE.
NOTE: The defendant recognizes that COUNT ONE
carries a statutory minimum sentence of one
hundred twenty (120) months.
The plea agreement also contained a waiver-of-appeal provision:
The defendant knowingly and voluntarily waives
the right to appeal the judgment and sentence
in this case, provided that the defendant is
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sentenced in accordance with the terms and
conditions set forth in the Sentence
Recommendation provisions of this Plea
Agreement.
The parties subsequently agreed to a plea agreement supplement,
which stated, in relevant part:
The provisions in this Plea Agreement
Supplement override any conflicting
provisions in the Plea Agreement.
. . . [I]f the defendant complies with the
requirements of [U.S.S.G.] 5C1.2 and 18
[U.S.C. §] 3553(f), and is deemed otherwise
eligible, the statutory minimum would not
apply and the offense level would be subject
to an additional two level reduction for an
adjusted offense level of 31. In that case,
the parties would be free to recommend a
sentence within the applicable guideline range
for a total offense level [of] 31 when
combined with the defendant's criminal history
category as determined by the Court.
The law referenced in the plea agreement supplement is
the so-called "safety valve" provision of the sentencing statute.
The safety valve allows a defendant to avoid a mandatory minimum
sentence and reduces the defendant's total offense level when the
defendant satisfies certain mitigating factors.1 See 18 U.S.C.
§ 3553(f); U.S.S.G. § 5C1.2.
1 Under the then-effective version of the statute, the
§ 3553(f) factors were:
(1) the defendant does not have more than 1
criminal history point, as determined under
the sentencing guidelines;
(2) the defendant did not use violence or
credible threats of violence or possess a
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At the sentencing hearing, the district court found that
Reyes-Gomez qualified for the § 3553(f) safety valve provision.
The court accordingly determined that the 120-month mandatory
minimum did not apply and reduced the defendant's total offense
level to 31. Adopting the presentence report's recommended
criminal history category of I, the district court determined that
the guidelines sentence range was 108 to 135 months. The defendant
asked for a sentence of 108 months, and the government asked for
120 months, as it said that it would do in the "Sentence
Recommendation" provision of the plea agreement.
firearm or other dangerous weapon (or induce
another participant to do so) in connection
with the offense;
(3) the offense did not result in death or
serious bodily injury to any person;
(4) the defendant was not an organizer,
leader, manager, or supervisor of others in
the offense, as determined under the
sentencing guidelines and was not engaged in
a continuing criminal enterprise, as defined
in section 408 of the Controlled Substances
Act; and
(5) not later than the time of the sentencing
hearing, the defendant has truthfully provided
to the Government all information and evidence
the defendant has concerning the offense or
offenses that were part of the same course of
conduct or of a common scheme or plan, but the
fact that the defendant has no relevant or
useful other information to provide or that
the Government is already aware of the
information shall not preclude a determination
by the court that the defendant has complied
with this requirement.
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The court imposed a sentence of 135 months for Count One
and six months to run concurrently for Count Five. The court
reasoned that the offense involved significant planning and a large
quantity of drugs, which demonstrated the drug trafficking
leaders' trust in the defendant. The court also noted that
documents relating to Reyes-Gomez's prior drug possession arrest
in the Dominican Republic indicated that he "was engaged in other
drug smuggling ventures" and was "not a newcomer to this type of
activity." This appeal followed.2
II.
Reyes-Gomez claims that his 135-month sentence was
substantively unreasonable. He argues that a sentence above the
120-month mandatory minimum undermines the purpose of the safety
valve and that the court's reasoning for imposing his sentence was
flawed.
A. Standard of Review
We have not yet resolved the question of what standard
of review applies to an unpreserved claim of substantive
unreasonableness in sentencing. United States v. Márquez-García,
862 F.3d 143, 147 (1st Cir. 2017); see also United States v. Ruiz-
2We bypass the waiver-of-appeal argument raised by the
government because this case is easily resolved against the
defendant on the merits. See United States v. Mangual-Rosado, 907
F.3d 107, 110 (1st Cir. 2018); United States v. Díaz-Rodríguez,
853 F.3d 540, 543-44 (1st Cir. 2017).
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Huertas, 792 F.3d 223, 228 (1st Cir. 2015) (noting that six out of
the seven circuits that had examined the issue held that a
substantive reasonableness claim need not be preserved).3 So, as
we have done before, we "skirt this murky area, [and] assume,
favorably to the appellant that the abuse-of-discretion standard
applies." Márquez-García, 862 F.3d at 147. Substantive
reasonableness thus hinges on whether the sentencing rationale is
"plausibly reasoned and resulted in a defensible outcome." United
States v. Alejandro-Rosado, 878 F.3d 435, 440 (1st Cir. 2017).
We also note that "[a] challenge directed at substantive
reasonableness is usually a heavy lift, and reversal is
'particularly unlikely when . . . the sentence imposed fits within
the compass of a properly calculated [guideline sentencing
range].'" Ruiz-Huertas, 792 F.3d at 228–29 (quoting United States
v. Vega–Salgado, 769 F.3d 100, 105 (1st Cir. 2014)). Because
Reyes-Gomez's 135-month sentence was within the uncontested
guidelines range, his appeal must overcome this formidable hurdle.
B. Mitigating Purpose of the Safety Valve
Reyes-Gomez contends that once the district court
concluded that he qualified for the safety valve, and he thereby
3The Supreme Court recently granted certiorari on the
question of "[w]hether a formal objection after pronouncement of
sentence is necessary to invoke appellate reasonableness review of
the length of a defendant's sentence." Holguin-Hernandez v. United
States, No. 18-7739 (June 3, 2019).
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avoided application of the 120-month mandatory minimum sentence,
it was unreasonable for the district court to impose a guidelines
sentence above the mandatory minimum. Such a sentence, he argues,
is incompatible with the purpose of the safety valve "to 'mitigate
the harsh effect of mandatory minimum sentences' on first-time,
low-level offenders in drug trafficking schemes." United States
v. Padilla-Colón, 578 F.3d 23, 30 (1st Cir. 2009) (quoting United
States v. Ortiz-Santiago, 211 F.3d 146, 150 (1st Cir. 2000)).
As we observed in Padilla-Colón, however, Congress
assumed that the beneficiaries of the safety valve would have
guideline sentence ranges below the mandatory minimums. Id. at 30
n.3 (citing H.R. Rep. No. 103-460 (1994)). According to a House
Report, members of Congress were motivated to create the safety
valve by the phenomenon that
sentence reductions for mitigating factors
were available to the most culpable, [but]
they did not operate to the benefit of the
least culpable, whose guideline sentences
already fell below the applicable mandatory
minimums. In response, the House sought to
exempt a 'narrow class' of drug defendants --
those least culpable -- from the mandatory-
minimum sentencing scheme.
Id.If the drug offense at issue involves a large quantity
of drugs, as it does here, that assumption about the "least
culpable" defendants does not apply. See United States v. De la
Cruz-Gutiérrez, 881 F.3d 221, 227 (1st Cir. 2018) (finding a 120-
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month sentence substantively reasonable where the defendant
qualified for the safety valve but had a guidelines range of 108
to 135 months due to the amount of drugs involved). Reyes-Gomez
accepted responsibility for 150 to 450 kilograms of cocaine.
Before the safety valve applied, he faced a total offense level of
33, with a criminal history category of I, and a guidelines range
of 135 to 168 months. Although the application of the safety valve
eliminated the 120-month mandatory minimum sentence and reduced
the applicable guidelines range to 108 to 135 months, the safety
valve statute instructs courts to impose a sentence "pursuant to
guidelines" and "without regard to any statutory minimum
sentence." 18 U.S.C. § 3553(f). The defendant's argument that
the application of the safety valve converted the mandatory minimum
into a sentencing cap disregards that statutory instruction. Under
the circumstances here, a within-guidelines sentence for a safety
valve-qualifying defendant, even when the sentence exceeds the
mandatory minimum, is a "defensible outcome."
C. Alleged Reasoning Errors
Reyes-Gomez also contests the district court's stated
reasoning for the sentence of 135 months. He argues that the
court's inference that he had gained the trust of the leaders of
the organization was unreasonable, given that the court also found
that he was not a leader for the purposes of the safety valve. We
disagree. The large quantity of drugs for which Reyes-Gomez
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accepted responsibility permitted the district court to draw the
inference that he, though not a leader of the organization, was
trusted within the organization. See De la Cruz-Gutiérrez, 881
F.3d at 227 (holding that the sentencing court reasonably inferred
that the defendant, who participated in a smuggling venture of
more than 150 kilograms of cocaine on a hazardous voyage at sea,
was a trusted person in the organization).
Reyes-Gomez also argues that the court unreasonably
concluded that he had previously engaged in other drug smuggling
ventures because the record did not indicate the drug quantity in
his prior arrest in the Dominican Republic for drug possession.
This argument misrepresents the uncontested information before the
sentencing judge.
The operative second-amended presentence report ("PSR")
stated that Reyes-Gomez and two other individuals were arrested in
the Dominican Republic in 2010, following a pursuit at sea.
Relying on certified documents provided by the U.S. Drug
Enforcement Administration, the PSR stated that officials seized
14.38 pounds of marijuana that had been tossed from the arrestees'
boat. Reyes-Gomez's counsel indicated at sentencing that he had
received these documents, and he did not challenge them.
The district court is free to rely on conduct set forth
in undisputed portions of the PSR at sentencing. It permissibly
inferred from the large quantity of marijuana involved in this
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prior possession charge, as indicated by the certified documents,
that it was not for personal use. See United States v. Mercer,
834 F.3d 39, 50 (1st Cir. 2016); cf. United States v. Marrero-
Pérez, 914 F.3d 20, 22 (1st Cir. 2019) (holding that courts may
not rely on an arrest without a conviction or other "independent
proof of conduct").
Affirmed.
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