United States v. Cruz-Vazquez ( 2016 )

United States Court of Appeals
For the First Circuit
No. 15-1289
UNITED STATES OF AMERICA,
Appellee,
v.
ANGEL RUDIEL CRUZ-VÁZQUEZ,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Aida M. Delgado-Colón, U.S. District Judge]
Before
Howard, Chief Judge,
Selya and Lynch, Circuit Judges.
Isabelle C. Oria-Calaf on brief for appellant.
Rosa Emilia Rodriguez-Velez, United States Attorney, Nelson
Pérez-Sosa, Assistant United States Attorney, Chief, Appellate
Division, and Francisco A. Besosa-Martínez, Assistant United
States Attorney, on brief for appellee.
November 10, 2016
HOWARD, Chief Judge. This case concerns a challenge to
the sentence imposed on Angel Rudiel Cruz-Vázquez ("Cruz") for
unlawful possession of a fully-automatic firearm. Cruz challenges
the reasonableness of his 36-month prison sentence. After careful
consideration, we affirm.
I. Background
Cruz pleaded guilty to possession of a machine gun in
violation of 18 U.S.C. § 922(o) after law enforcement agents,
conducting a traffic stop, recovered from his car a Glock pistol
modified to shoot automatically.1 Although agents also found a
bag containing drug paraphernalia and marijuana residue in the
trunk of Cruz's vehicle, this detail was omitted from the plea
agreement's stipulated version of the facts, and the drug evidence
also went unmentioned in the PSR.
Under the terms of the plea agreement, the parties
stipulated that Cruz's Base Offense Level under U.S.S.G. § 2K2.1
was 18 and that, after applying a three-level reduction for
acceptance of responsibility, his Total Offense Level was 15. The
parties estimated that this Total Offense Level, coupled with a
1 Because Cruz pleaded guilty, our discussion of the facts is
drawn from the plea agreement, the change-of-plea colloquy, the
Pre-Sentence Investigation Report ("PSR"), and the transcript of
the sentencing hearing. See United States v. Arroyo-Maldonado,
791 F.3d 193, 196 (1st Cir. 2015).
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Criminal History Category of I, would provide for a sentencing
range of 18 to 24 months. The parties agreed not to seek any
further guideline adjustments, departures, enhancements,
reductions, or variances. Finally, the parties stipulated that
while Cruz could request a sentence at the lower end of the
applicable guideline range, the government reserved the right to
argue for a sentence at the higher end.
Prior to the sentencing hearing, the government
submitted a sentencing memorandum to the district court that, among
other things, discussed the drug paraphernalia retrieved from
Cruz's car and noted that "[t]he items recovered are consistent
with what drug traffickers usually keep and use." When the judge
mentioned the bag of drug paraphernalia at the sentencing hearing,
Cruz objected, as he had not admitted to owning, possessing, or
previously seeing the bag. Ultimately, the district court stated
that it would not consider the bag of drug paraphernalia when
determining Cruz's sentence.
The sentencing court went on to make detailed and
specific findings as to each of the relevant 18 U.S.C. § 3553(a)
sentencing factors. While acknowledging potentially mitigating
factors emphasized by Cruz, the district court also raised concerns
about Cruz's offense, saying:
[I]n Puerto Rico . . . [w]e have a record of shootings that
is greater th[a]n the ones in the City of New York and
Chicago. . . . [I]t is very clear why these types of guns
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. . . have been prohibited and it is because of the potential
to cause real and huge damages to innocent bystanders. I
think this type of offense is having a dramatic effect on the
community. You cannot argue that this [gun] can be used for
personal defense . . . it is not a regular weapon, it is a
machine gun.
The judge concluded, "I think that because of this, these factors
per se will allow for a variance." The district court subsequently
imposed a 36-month incarcerative sentence.
This appeal timely followed.
II. Analysis
On appeal, Cruz alleges both that the government
violated the spirit of the plea agreement by bringing the bag of
drug paraphernalia to the district court's attention and that the
district court abused its discretion in deviating from the
guideline range and imposing a 36-month incarcerative sentence.
We take these claims in turn.
A. Breach of the Plea Agreement
Cruz argues, in effect, that the government violated the
plea agreement by seeking an upward variance from the jointly-
stipulated Base Offense Level. Specifically, he accuses the
government of implicitly "arguing for a four level increase as
prescribed in [U.S.S.G. §] 2K2.1(b)(6)(B)," which applies if a
defendant used or possessed a firearm in connection with another
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felony offense, by including the information about drug
paraphernalia in its sentencing memorandum.
Whether the government has breached its plea agreement
with Cruz presents a question of law, and our review is de novo.
See United States v. Rivera-Rodriguez, 489 F.3d 48, 57 (1st Cir.
2007). "[W]hen a plea rests in any significant degree on a promise
or agreement of the prosecutor, so that it can be said to be part
of the inducement or consideration, such promise must be
fulfilled." Santobello v. New York, 404 U.S. 257, 262 (1971).
Prosecutors engaging in plea bargaining are held to "meticulous
standards of both promise and performance" because such bargaining
requires defendants to waive fundamental constitutional rights.
United States v. Riggs, 287 F.3d 221, 224 (1st Cir. 2002). We
prohibit not only explicit repudiation of the government's
assurances but also end-runs around those assurances. Rivera-
Rodriguez, 489 F.3d at 57; United States v. Canada, 960 F.2d 263,
269 (1st Cir. 1992).
Other cases may raise difficult questions about how to
reconcile the prosecution's obligation to uphold any bargain made
in a plea agreement with its duty to disclose information material
to the district court's sentencing determinations. See United
States v. Saxena, 229 F.3d 1, 5 (1st Cir. 2000). Admittedly, these
responsibilities can pull in different directions. Id. This case,
however, does not implicate that tension. The district court
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expressly stated that it would disregard the drug paraphernalia in
calculating Cruz's sentence. In other words, any potential tension
that the prosecution may have experienced in choosing to disclose
the drug-paraphernalia information to the district court had no
bearing on the sentence that Cruz received.
The plea agreement expressly provided that the
government could recommend a sentence at the high end of the
guideline range. And this the government did. In both its
sentencing memorandum and at the sentencing hearing, the
government specifically asked the district court to impose "[a]
sentence of twenty-four (24) months imprisonment," one at "the
upper end of the applicable guideline in this case." The record
makes plain that the prosecution never explicitly or implicitly
sought a sentencing enhancement under U.S.S.G. § 2K2.1(b)(6)(B).
Having unequivocally stated that it was recommending a
sentence at the higher end of the guideline range, the government
was free to offer reasons supporting its recommendation. See
Rivera-Rodriguez, 489 F.3d at 58 (finding no error where the
government told the court that there were quantities of cocaine
beyond the stipulated-to amount in the plea agreement). By
statute, "[n]o limitation shall be placed on the information
concerning the background, character, and conduct of a person
convicted of an offense which a court of the United States may
receive and consider for the purpose of imposing an appropriate
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sentence." 18 U.S.C. § 3661. Thus, the sentencing court has a
right to expect that the prosecutor will share all relevant facts.
See Saxena, 229 F.3d at 6 (finding no error where the prosecutor
shared information about the defendant's post-plea activities with
the district court).
The government's obligation to provide relevant
information to a sentencing court does not dissipate merely because
the government assumes an obligation to adhere to commitments made
under a plea agreement. Id. at 6. Rather, the obligations coexist
and must both be discharged conscientiously. Id. Here, because
the prosecutor adhered to the terms of the agreement with Cruz, we
see no basis to vacate his sentence based on the alleged breach.
B. Substantive Reasonableness
Claims of sentencing error trigger a two-step inquiry:
"we first determine whether the sentence imposed is procedurally
reasonable and then determine whether it is substantively
reasonable." United States v. Clogston, 662 F.3d 588, 590 (1st
Cir. 2011). As Cruz objects only to his sentence's substantive
reasonableness, our review hews to the formula set out for
substantive challenges.
"The substantive reasonableness of [a] sentence is
[typically] reviewed for abuse of discretion, taking into account
the totality of the circumstances." United States v. Zavala-
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Marti, 715 F.3d 44, 50 (1st Cir. 2013). Although Cruz did not
object in the district court, for purposes of this appeal, we will
assume, favorably to him, that our review is for abuse of
discretion rather than for plain error.2 Cf. United States v.
Nunez, ___ F.3d ___, 2016 WL 6092692, at *4 (1st Cir. Oct. 19,
2016) (assuming without deciding that review is for abuse of
discretion). Nevertheless, his claim fails.
Cruz denigrates the district court's rationale because
(in his view) the court inappropriately premised its sentencing
determination on community-based factors, viz., gun violence in
Puerto Rico. Although Cruz concedes that this is a permissible
consideration at sentencing, he submits that the court erred by
relying on it excessively. Thus, Cruz's argument amounts to a
disagreement with the district court's weighing of the different
sentencing factors.
We discern no abuse of the sentencing court's broad
discretion. Cf. United States v. Arroyo-Maldonado, 791 F.3d 193,
201 (1st Cir. 2015) (finding no error where the defendant sought
to substitute his judgment for that of the sentencing court). We
have repeatedly recognized that deterrence is an important factor
2 Although we have sometimes stated that a failure to object
on substantive reasonableness grounds engenders plain error review
on appeal, several of our recent cases have questioned the
application of this standard. See, e.g., United States v. Diaz-
Arroyo, 797 F.3d 125, 128 (1st Cir. 2015); United States v. Ruiz-
Huertas, 792 F.3d 223, 228 (1st Cir. 2015).
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in the sentencing calculus. United States v. Diaz-Arroyo, 797
F.3d 125, 129 (1st Cir. 2015). Thus, as was done here, a sentencing
court may consider the pervasiveness of similar crimes in the
community when formulating its sentence. See id. Moreover, in
determining Cruz's sentence, the district court considered all
sentencing factors, adequately explained its sentence, and imposed
a reasonable sentence in the totality of the circumstances. See
Arroyo-Maldonado, 791 F.3d at 201; see also Clogston, 662 F.3d at
592 ("There is no one reasonable sentence in any given case but,
rather, a universe of reasonable sentencing outcomes.").
Accordingly, the imposition of a 36-month sentence was not
substantively unreasonable.
III. Conclusion
For the reasons discussed above, the district court's
sentence is affirmed.
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