United States v. Narvaez-Soto , 773 F.3d 282 ( 2014 )

United States Court of Appeals
For the First Circuit
No. 13-1963
UNITED STATES OF AMERICA,
Appellee,
v.
EDWIN E. NARVÁEZ-SOTO,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Francisco A. Besosa, U.S. District Judge]
Before
Thompson, Selya and Lipez,
Circuit Judges.
Jonathan G. Mermin and Preti, Flaherty, Beliveau & Pachios,
LLP on brief for appellant.
Rosa Emilia Rodríguez-Vélez, United States Attorney, Nelson
Pérez-Sosa, Assistant United States Attorney, Chief, Appellate
Division, and Juan Carlos Reyes-Ramos, Assistant United States
Attorney, on brief for appellee.
December 3, 2014
SELYA, Circuit Judge. Defendant-appellant Edwin E.
Narváez-Soto challenges his upwardly variant sentence. After
careful consideration, we affirm.
Inasmuch as his appeal follows a guilty plea, we draw the
facts from the change-of-plea colloquy, the uncontested portions of
the presentence investigation report (PSI Report), and the
transcript of the disposition hearing. See United States v.
Cintrón-Echautegui, 604 F.3d 1, 2 (1st Cir. 2010); United States v.
Santos, 357 F.3d 136, 138 (1st Cir. 2004). On December 12, 2011,
the defendant and an accomplice spotted a woman talking on a
cellphone in a parking lot, followed her car, and eventually
carjacked it. The two men abducted the woman, stole her
belongings, and — over the course of at least an hour — took her to
two banks to make cash withdrawals. All the while, the men
terrorized their victim with gory tales of their previous
maraudings.
The victim's nightmare worsened when, after the
withdrawal of funds was accomplished, the defendant left his
accomplice at a restaurant and departed with the victim and her
car. Following some exploration, the defendant found a secluded
spot that was to his liking. There, he ordered the woman to
undress. He then raped her. Later, the defendant allowed the
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victim to call her father to reassure him (falsely) that everything
was fine.1
Once the defendant resumed driving, a police cruiser
became interested in the vehicle and started trailing it, lights
flashing. Although the defendant stopped the car for a moment, he
changed his mind and sped away (almost hitting the police
officers). The officers fired several shots at the runaway car,
but did not stop it. After a chase, the defendant abandoned the
vehicle, left his victim behind, and fled on foot.
In due course, the defendant turned himself in to federal
authorities. A federal grand jury sitting in the District of
Puerto Rico indicted the defendant on two counts. Count 1, which
carried a maximum sentence of 25 years, charged carjacking
resulting in serious bodily injury. See 18 U.S.C. § 2119(2).
Count 2, which carried a mandatory minimum and consecutive sentence
of 7 years and a maximum sentence of up to life imprisonment,
charged carriage of a firearm during and in relation to a crime of
violence. See id. § 924(c)(1).
After some preliminary skirmishing (not relevant here),
the defendant entered a straight guilty plea to both counts.
Following customary practice, the district court directed the
preparation of the PSI Report.
1
The carjacking had interrupted the victim's telephone
conversation with her boyfriend, so her family and friends knew
that something was amiss.
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For count 1, the PSI Report started with a base offense
level of 20. See USSG §2B3.1(a). It then recommended a series of
adjustments: a four-level upward adjustment because the victim
sustained serious bodily injury in the form of sexual assault, see
id. §2B3.1(b)(3)(B); a four-level upward adjustment because the
victim was abducted to facilitate the commission of the offense,
see id. §2B3.1(b)(4)(A); a two-level upward adjustment because the
offense involved a carjacking, see id. §2B3.1(b)(5); a two-level
upward adjustment because the defendant recklessly created a
substantial risk of death or serious bodily injury while fleeing
from the police, see id. §3C1.2; and a three-level downward
adjustment for acceptance of responsibility, see id. §3E1.1.
Cumulatively, these adjustments brought the offense level to 29.
Coupled with the defendant's criminal history category (III), this
offense level yielded a guideline sentencing range (GSR) of 108-135
months.
With respect to count 2, the PSI Report noted that the
offense of conviction was "precluded from the guidelines" and
carried a 7-year mandatory minimum sentence. Moreover, any
sentence imposed on count 2 had to run consecutively to whatever
term of imprisonment was imposed on count 1.
At the disposition hearing, no one objected to the PSI
Report, and the district court adopted the guideline calculations
contained therein. The government argued for an above-the-range
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sentence. In response, defense counsel "implore[d] the [c]ourt to
set [its] feelings and passions aside" and sentence the defendant
at or near the upper end of the GSR. Following a thorough
explanation of its reasoning, the court varied upward and imposed
a 240-month term of immurement on count 1, to be followed by a 120-
month term on count 2. This timely appeal ensued.
On appeal, the defendant challenges both the procedural
and substantive reasonableness of his sentence. We review
sentencing challenges in two steps. See United States v. Walker,
665 F.3d 212, 232 (1st Cir. 2011); United States v. Martin, 520
F.3d 87, 92 (1st Cir. 2008). First, we resolve any procedural
questions. See Gall v. United States, 552 U.S. 38, 51 (2007). If
no procedural error looms, we proceed to address the question of
substantive reasonableness. See id.With respect to each step of this pavane, we employ the
deferential abuse of discretion standard of review. See Gall, 552
U.S. at 51; Martin, 520 F.3d at 92. This standard is not
monolithic: within it, we review matters of law (including the
sentencing court's interpretation and application of the
guidelines) de novo and findings of fact for clear error. See
Walker, 665 F.3d at 232.
As the opening salvo in his multifaceted procedural
attack on his count 1 sentence, the defendant takes aim at the
district court's consideration of Puerto Rico's crime rate in its
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sentencing calculus. He contends that the pervasiveness of crime
in a particular community is not a valid sentencing factor. This
contention fails.
What the court actually said during sentencing was that
it viewed the defendant's crimes "as much more serious [in Puerto
Rico] than if they had occurred in a less violent society." In
weighing the impact associated with a particular crime, a
sentencing court may consider the pervasiveness of that type of
crime in the relevant community. See United States v. Santiago-
Rivera, 744 F.3d 229, 232-33 (1st Cir. 2014); United States v.
Flores-Machicote, 706 F.3d 16, 23 (1st Cir. 2013) (collecting
cases). This proposition follows logically from the fact that
"[d]eterrence is widely recognized as an important factor in the
sentencing calculus." Flores-Machicote, 706 F.3d at 23. Thus,
"the incidence of particular crimes in the relevant community
appropriately informs and contextualizes the . . . need for
deterrence." Id. After all, a heightened need for deterrence may
well exist in a community where violent crime is running rampant.
See id.
Relatedly, the defendant questions the factual
underpinnings of the district court's observations regarding the
crime rate in Puerto Rico. He cites statistical information (in
particular, a 2008-2009 crime data report from the Federal Bureau
of Investigation) to impugn the court's observation that "in Puerto
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Rico crime far exceeds the known limits on the mainland."2 In the
defendant's view, rape and robbery are no more common in Puerto
Rico than in certain other parts of the United States.
The point, however, is not that some other communities
may also be plagued with violent crime but, rather, that such crime
is a real problem in Puerto Rico. The very statistics that the
defendant cites bear witness to this grim reality.
We add, moreover, that the court's references to the
incidence of rape and robbery in Puerto Rico, when read in context,
provide scant cause for concern. The court noted that "[a]rmed
carjackings and rapes are, unfortunately, pervasive throughout the
island." Given materials referenced by the court, that statement
appears to be true. In the same vein, the court recounted that 65
carjacking cases were filed in the district court in the 2012
fiscal year. That estimate has not been challenged.3
2
The defendant did not present this data to the district
court. He notes, however, that the same report was cited by this
court in Watchtower Bible & Tract Soc'y of N.Y., Inc. v. Sagardia
De Jesus, 634 F.3d 3, 6 & n.2 (1st Cir. 2011).
3
The defendant also takes issue with the court's statement
that "Puerto Rico has a homicide rate quadruple the national rate
and more than double that of virtually every state." But even
though the court mentioned Puerto Rico's high homicide rate, it did
so in the context of relating the pervasiveness of all types of
violent crime in Puerto Rico (including carjacking and rape) to the
need for deterrence in this case. We see no abuse of discretion.
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We will not paint the lily. Even if certain types of
violent crime are more prevalent in other places than the court
realized, that does not detract from the court's reasoned
determination, predicated on its experience, that the incidence of
violent crime — and, particularly, gun-related violent crime — is
an acute problem in Puerto Rico. Cf. Martin, 520 F.3d at 92(acknowledging that sentencing courts possess "cumulative
experience garnered through the sheer number of district court
sentencing proceedings that take place day by day"). On the record
before us, we discern no abuse of discretion in the sentencing
court's consideration of Puerto Rico's crime rate in formulating
the defendant's sentence.
Next, the defendant asserts that the district court
failed to ground the sentence in the nature and circumstances of
his offense. Specifically, he argues that the court gave too much
weight to impermissible considerations (such as the perceived
leniency of Puerto Rico's courts) and relied too little on the
individual characteristics of the defendant.
We have recognized that "[i]t 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. What
happened here, however, does not cross into that forbidden terrain.
At the conclusion of the parties' presentations at sentencing, the
district court observed, "[o]ther than two child pornography cases
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. . . this is the worst criminal case that I have had." The court
proceeded to identify certain aspects of the crime that it found
particularly appalling. These included driving the victim to a
secluded area devoid of any light, raping her in spite of her
verbal protests and physical struggles, and allowing her to
telephone her father after the rape (an act that the judge
plausibly inferred must have terrorized the victim's family).
As this list of concerns evinces, the sentencing court
was troubled by the utter depravity and vicious nature of the
defendant's acts. The analytic centerpiece of the court's
sentencing rationale was the crime of conviction, and there is no
satisfactory footing for a conclusion that community-based
considerations either dominated or improperly influenced the
fashioning of the sentence.
The defendant's last procedural argument implicates his
sentence on count 2. For the first time on appeal, he decries the
sentencing court's determination that "Count Two is precluded from
the guidelines." He suggests that, under USSG §2K2.4(b), the
statutory minimum sentence serves as the guideline sentence for
that offense. Thus, his thesis runs, the district court was
obliged to explain its reasons for imposing a sentence greater than
the mandatory minimum sentence on that count.
Because the defendant did not raise this argument below,
our review is for plain error. See United States v. Leahy, 473
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F.3d 401, 409-10 (1st Cir. 2007). "Review for plain error 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).
We need not tarry. Even if there was a clear and obvious
error — and we doubt that there was — the defendant has failed to
demonstrate "a reasonable probability that, but for the error, the
district court would have imposed a different, more favorable
sentence." United States v. Medina-Villegas, 700 F.3d 580, 583
(1st Cir. 2012) (internal quotation marks omitted). The defendant
does not point to anything in the record to suggest that the court
would have sentenced him any differently absent the purported
error. Everything that we have reviewed supports a contrary
conclusion: the record indicates that the court would have varied
upward on count 2 whether or not it understood the minimum sentence
to be the guideline sentence. Indeed, the court at one point
stated explicitly that it intended to sentence the defendant
outside the GSR on both counts. Considering the totality of the
circumstances, we see nothing approaching plain error.
Our determination that no procedural flaws infected the
sentencing process brings us to the defendant's claim that his
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sentence is substantively unreasonable.4 When reviewing the
substantive reasonableness of a sentence, "the highly deferential
abuse-of-discretion standard remains in full force." Santiago-
Rivera, 744 F.3d at 234. In undertaking that review, we remain
mindful that, "the linchpin of a reasonable sentence is a plausible
sentencing rationale and a defensible result." Martin, 520 F.3d at
96. For any given case, "there is not a single reasonable sentence
but, rather, a range of reasonable sentences." Id. at 92.
Refined to bare essence, the defendant's claim rests on
the assertion that the facts on which the district court relied in
varying upward were already factored into the guideline sentence
and that the court never explained why this case fell outside the
heartland. The first part of this assertion misperceives how
sentencing determinations are made. The guidelines are simply "the
starting point and the initial benchmark" for crafting an
appropriate sentence. Gall, 552 U.S. at 49. As such, a sentencing
court is not to presume that the GSR invariably sets the parameters
of a reasonable sentence but must "make an individualized
assessment based on the facts presented." Id. at 50.
The "nature and circumstances of the offense" form a
salient part of what a sentencing court should take into account.
4
While the defendant's brief is muddled, the focus of this
claim centers on the combined effect of the sentences on counts 1
and 2 (a total of 360 months). Were we to read his claim as
directed solely to the count 1 sentence, the result would be the
same.
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18 U.S.C. § 3553(a)(1). Hence, the court may consider the manner
in which the offense was committed even if the underlying conduct
already is accounted for by an offense level adjustment. See
Walker, 665 F.3d at 233 ("Even though an upward adjustment already
had been made for the appellant's 'pattern' of behavior, the
atypical extent of this pattern and the aggravating factors allowed
the sentencing court to make an upward departure." (internal
citations omitted)).
The second part of the defendant's assertion is belied by
the record. The sentencing court made an individualized
determination. It clearly delineated why the defendant's conduct
went well beyond a run-of-the-mill carjacking or firearm possession
case. The court noted that the defendant carefully planned the
carjacking, recruited an accomplice to facilitate the crime,
stalked and hunted down the victim, carjacked and robbed her,
abducted her and held her hostage, and raped her. It further noted
that the defendant attempted to avoid police intervention,
instigated a firefight with the officers and sparked a chase. In
addition, the court observed that allowing the victim to call her
father after the rape gratuitously immersed family members in his
reign of terror. This sordid chain of events distinguished the
case from the mine-run and made it a candidate for significant
punishment.
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The defendant's next point is no more convincing. He
argues that the district court's stated sentencing grounds were
neither sufficiently particularized nor sufficiently compelling.
This is sheer persiflage.
The district court emphasized the heinous nature of the
crime and gave book and verse in support of its appraisal. In
summing up, the court said that a substantial upward variance was
warranted "to protect the public from further crimes by [the
defendant] and to address the issues of deterrence and punishment."
The court's reasoning was grounded solidly in the nature and
circumstances of the offense and furnished a plausible rationale
for its substantial upward variance. The sentence itself produced
a defensible outcome: the punishment fit the crime.
Of course, in deciding on an appropriate sentence, a
district court has an obligation to impose a sentence that is
"sufficient, but not greater than necessary" to accomplish the
goals of sentencing. 18 U.S.C. § 3553(a). This is sometimes
called the "parsimony principle." The defendant's sentence, which
falls "within the expansive universe of reasonable sentences,"
United States v. King, 741 F.3d 305, 308 (1st Cir. 2014), does not
offend this principle.
We need go no further. For the reasons elucidated above,
the sentence is
Affirmed.
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