United States v. Santa-Otero , 843 F.3d 547 ( 2016 )

United States Court of Appeals
For the First Circuit
No. 15-2186
UNITED STATES OF AMERICA,
Appellee,
v.
SERGIO SANTA-OTERO,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. José Antonio Fusté, U.S. District Judge]
Before
Howard, Chief Judge,
Torruella and Barron, Circuit Judges.
Alejandra Bird López on brief for appellant.
Rosa Emilia Rodríguez-Vélez, United States Attorney,
Mariana E. Bauzá-Almonte, Assistant United States Attorney, Chief,
Appellate Division, and Francisco A. Besosa-Martínez, Assistant
United States Attorney, on brief for appellee.
December 13, 2016
BARRON, Circuit Judge. This appeal requires us once
again to review the sentence that Sergio Santa-Otero has received
for possessing a firearm after being convicted of a felony, in
violation of 18 U.S.C. § 922(g)(1), and possessing a machine gun,
in violation of 18 U.S.C. § 922(o). In Santa's prior appeal, we
vacated his sentence, which at that time was for a term of
imprisonment of 65 months, and remanded for resentencing. That
resentencing has now occurred, and we affirm the result, which is
a 60-month prison sentence.
I.
In 2013, pursuant to a plea agreement, Santa pled guilty
to the two offenses: unlawful possession of a machine gun, in
violation of 18 U.S.C. § 922(o), and being a convicted felon in
possession of a firearm, in violation of 18 U.S.C. § 922(g). The
plea agreement set forth the following facts.
Santa was stopped in a car by police officers while
smoking a marijuana cigarette. Upon questioning by the police
officers, Santa disclosed that he had a firearm and ammunition in
the car. The officers recovered one loaded Glock Pistol Model 27,
four loaded standard size Glock Pistol magazines, and two loaded
high capacity magazines, containing a total of 101 .40 caliber
rounds of ammunition. Santa informed the officers that the Glock
Pistol had a "chip" in it such that it would fire automatically,
qualifying the firearm as a "machine gun." See 26 U.S.C. § 5845(b)
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(defining a machine gun as "any weapon which shoots, is designed
to shoot, or can be readily restored to shoot, automatically more
than one shot, without manual reloading, by a single function of
the trigger").
The plea agreement recommended a sentence within the
applicable range set by the United States Sentencing Guidelines.
The guidelines range set forth in the presentence report was for
a term of imprisonment of 37 to 46 months. The presentence report
based this range on a calculation that Santa's total offense level
was 19 and that Santa's criminal history category was III.
The presentence report calculated the total offense
level of 19 for Santa by starting with a base offense level of 22,
as required by U.S.S.G. § 2K2.1(a)(3), which applies to defendants
convicted of being a felon in possession of a firearm where that
firearm is a machine gun. The presentence report then reduced
Santa's base offense level of 22 by two points for Santa's
acceptance of responsibility and one additional point for Santa's
entering a plea of guilty, thereby yielding the total offense level
of 19. The presentence report labeled Santa's criminal history
category as III based on Santa's prior convictions under Puerto
Rico law for possession with intent to distribute a controlled
substance, reclassified as possession of a controlled substance,
and for aggravated conjugal abuse.
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At Santa's first sentencing hearing, the District
Court stated that Santa had been convicted of possession with
intent to distribute a controlled substance, and, based on that
understanding of his criminal history, imposed a prison sentence
of 65 months. On appeal, however, we agreed with Santa that the
District Court had erred in characterizing Santa's criminal
history, and so we vacated the sentence and remanded for
resentencing. United States v. Santa-Otero, 618 F. App'x 6 (1st
Cir. 2015).
At Santa's sentencing hearing on remand, the parties
agreed that the guidelines range for his term of imprisonment
remained 37 to 46 months, because Santa's total offense level
remained 19 and his criminal history category remained category
III. The District Court imposed a sentence of 60 months
imprisonment. Santa's appeal followed.
II.
Santa appears to characterize each of his challenges to
his sentence as being both procedural and substantive in nature.
For procedural challenges, "we afford de novo review to the
sentencing court's interpretation and application of the
sentencing guidelines, assay the court's factfinding for clear
error, and evaluate its judgment calls for abuse of discretion."
United States v. Ruiz-Huertas, 792 F.3d 223, 226 (1st Cir. 2015).
For substantive challenges, "we proceed under the abuse of
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discretion rubric." Id. But, however the challenges are
characterized, we find no basis for vacating the sentence under
the applicable standard of review.1
Santa first points out that when a factor relied on to
justify a variant sentence "is already included in the calculation
of the guidelines sentencing range, a judge who wishes to rely on
that same factor to impose a sentence above or below the range
must articulate specifically the reasons that this particular
defendant's situation is different from the ordinary situation
covered by the guidelines calculation." United States v. Zapete-
García, 447 F.3d 57, 60 (1st Cir. 2006). For that reason, Santa
contends, the District Court erred in relying on the presence of
a machine gun to justify the variance.
In support of this argument, Santa points to U.S.S.G.
§ 2K2.1(a)(3), which provides a base offense level of 22 if the
firearm that was the subject of the conviction is a machine gun,
defined as "any weapon which shoots . . . automatically more than
one shot, without manual reloading, by a single function of the
trigger." 26 U.S.C. § 5845(b). But, the District Court did not
rely solely upon Santa's possession of the machine gun in imposing
1 The government contends that Santa failed to preserve some
of his challenges below, and that, therefore, we must review them
under the plain error standard. But, because we conclude that
Santa's challenges fail even under the standard of review that
Santa asks us to apply, we need not decide whether Santa forfeited
certain of his challenges below.
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the variant sentence. The District Court cited to specific
features of the ammunition that Santa possessed along with the
machine gun: two loaded extended capacity magazines and four loaded
standard magazines, beyond the one loaded standard magazine that
was already in the machine gun. Thus, Santa's challenge is
meritless. See United States v. Davis-Torres, -- F. App'x --,
2016 WL 5115331, at *4 (1st Cir. 2016) ("The [sentencing] court
also emphasized the inherent danger in carrying an AK–47 semi-
automatic rifle with two high capacity magazines and 109 rounds of
ammunition . . . . There was no abuse."); see also United States
v. Thomas, 914 F.2d 139, 144 (8th Cir. 1990) ("[T]he district court
properly considered . . . the nature of the firearms [defendant]
possessed, and the fact that the firearms were loaded as factors
not adequately taken into account by the Guidelines which warrant
departure.").2
Nor do we find persuasive Santa's contention that the
District Court erred by attributing "illicit conduct" to Santa
that was unsupported by a preponderance of the evidence. In
2 In arguing that the District Court impermissibly justified
the variance by reference to the machine gun, Santa also points to
other provisions of the sentencing guidelines that reference the
number and type of firearms possessed by a defendant. Because
those other provisions do not apply to Santa, they are not "already
included in the calculation of the guidelines sentencing range,"
so they cannot impugn the District Court's decision to use the
particular ammunition possessed by Santa to justify the variance.
Zapete-García, 447 F.3d at 60.
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support of this argument, Santa points to the colloquy at the
sentencing hearing in which Santa contended that he should be
sentenced within the guidelines range because he possessed the
machine gun for self-defense, as he had been the victim of an
attempted murder. And, he argues, in this colloquy, the District
Court found -- without a basis -- that Santa had engaged in
unlawful conduct beyond that for which he had been charged. The
record shows, however, that the District Court simply rejected
Santa's contention that he was in possession of the machine gun in
question for self-defense.3
Santa next argues that the District Court erred by
assuming, on the basis of conduct for which Santa had been charged
but not convicted, that Santa's criminal history record under-
3 At the colloquy, the District Court stated: "[D]o you
honestly believe that a judge cannot extrapolate from this gun and
say . . . what is a citizen doing with this kind of pistol, machine
gun? All these magazines that we have been describing here,
extended magazines, and the rounds of ammunition. Is it only for
protection?" The District Court then went on to say:
When we realize that the fire power that he had with him
is more than the fire power the Marshals have in this
room together, imagine. If you ask the Marshals here to
lay out their firearms and count the bullets and see
what they are, nobody's carrying an automatic firearm.
Nobody's carrying more than a [fourteen] round magazine.
One magazine. And boy, do they need protection and to
protect themselves. Especially in this district. I
cannot accept, I cannot in good honesty accept the
argument that because he had been shot once, he needed
to have this automatic firearm, all these magazines, and
that number of ammunition, all those ammunition to
protect himself.
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represented his actual prior criminal activities. But, the
sentencing transcript makes clear that the District Court first
set aside this concern by saying "Let's forget about that for the
time being," and then accurately summarized Santa's criminal
history as consisting of one conviction for conjugal abuse and one
conviction for simple possession of a controlled substance. Nor
did the District Court bring up the issue of the potential under-
representation of Santa's criminal record again during the
sentencing hearing. Thus, Santa's argument here, too, fails.
Finally, Santa argues that the District Court erred in
several ways by taking into account local conditions in Puerto
Rico in setting the sentence. As we have previously said,
"[g]eographic considerations can be relevant at sentencing, as
'the incidence of particular crimes in the relevant community
appropriately informs and contextualizes the relevant need for
deterrence.'" United States v. Ortiz-Rodríguez, 789 F.3d 15, 19
(1st Cir. 2013) (quoting United States v. Flores-Machicote, 706
F.3d 16, 23 (1st Cir. 2013)). Nevertheless, "[a] sentencing
judge's resort to community-based characteristics does not relieve
him or her of the obligation to ground sentencing determinations
in case-specific factors. It is possible for a sentencing judge
to focus too much on the community and too little on the
individual." Flores-Machicote, 706 F.3d at 24 (citation omitted).
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Here, the District Court did not cross the line. Because
the District Court expressly took note of the case-specific factors
of Santa's criminal history and the specific firearm and ammunition
Santa possessed, the District Court sufficiently emphasized the
case-specific factors relative to the community-based
characteristics.
Santa does contend that the District Court erred in not
specifying the sources of information it used in describing the
community characteristics it took into account in making its
sentencing decision, because the District Court may have relied on
unreliable information. But "[a]s a general matter, 'the
sentencing authority has always been free to consider a wide range
of relevant material[,]'" United States v. Álvarez-Núñez, 828
F.3d 52, 55 (1st Cir. 2016) (quoting Payne v. Tennessee, 501 U.S.
808, 820-21 (1991)), including the "cumulative experience garnered
through the sheer number of district court sentencing proceedings
that take place day by day." See United States v. Narváez-Soto,
773 F.3d 282, 286 (1st Cir. 2014) (quoting United States v. Martin,
520 F.3d 87, 92 (1st Cir. 2008)). Against this backdrop, the
record provides no support for Santa's speculative and unsupported
contention.
Santa does also contend that, in justifying the
variance, the District Court wrongly relied on the fact that, under
Puerto Rico law, the illegal possession of a machine gun is
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punishable by up to twenty-four years imprisonment. Santa contends
that, by this reference, the District Court was premising the
variance not on the need for deterrence in this particular
community but rather, impermissibly, on that community's hostility
towards this type of conduct. But, the District Court referenced
the penalty under Puerto Rico law not as a justification for the
variance, but rather as a confirmation that the variant sentence
was not "something that is terribly out of reality with what this
kind of situation [in Puerto Rico] is." And Santa provides no
reason for why this particular use of the penalty under Puerto
Rico law for the crime constitutes an abuse of discretion by the
District Court.
Similarly, we do not find persuasive Santa's contention
that the District Court erred by referencing its opinion in a
different sentencing case, United States v. González–Román, 115 F.
Supp. 3d 271 (D.P.R. 2015), in the course of explaining the
community-based need for deterrence. While some of the facts
referenced in the González–Román opinion deal with matters
irrelevant to Santa's crime, other facts -- such as statistics on
violent crime and firearm use -- are relevant. The record provides
no basis for finding that, in referring to that decision, the
District Court relied on the parts of that opinion that were
irrelevant to Santa.
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Finally, Santa argues that by relying on the community
characteristics of Puerto Rico in justifying the variance, the
District Court violated Santa's federal constitutional right to
equal protection of the laws. But, the District Court justified
the variant sentence on the fact that Santa committed the crime in
a place in which there is an increased need for deterrence. And,
for reasons we have given before, that is a permissible
consideration in sentencing. See Flores-Machicote, 706 F.3d at
23. Thus, this challenge fails as well.
In rejecting Santa's challenges, we are cognizant that
"[t]he farther the judge's sentence departs from the guidelines
sentence . . . the more compelling the justification based on
factors in section 3553(a) that the judge must offer in order to
enable the court of appeals to assess the reasonableness of the
sentence imposed." United States v. Smith, 445 F.3d 1, 4 (1st
Cir. 2006) (omission in original) (quoting United States v. Dean,
414 F.3d 725, 729 (7th Cir. 2005)). And we note that here, the
District Court imposed a not insubstantial variant sentence, as
the sentence to a term of 60 months imprisonment was 14 months
greater than the upper end of the guidelines range, which was 46
months imprisonment, as set forth in the presentence report.
Nevertheless, we find both that the District Court's reasoning is
sufficient to justify the variance and that the variance was not
otherwise imposed in error.
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III.
The sentence is affirmed.
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