United States v. Quinones-Melendez , 791 F.3d 201 ( 2015 )

United States Court of Appeals
For the First Circuit
No. 14-1369
No. 14-1371
UNITED STATES OF AMERICA,
Appellee,
v.
JUAN G. QUIÑONES-MELÉNDEZ,
Defendant, Appellant.
APPEALS FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. José Antonio Fusté, U.S. District Judge]
Before
Kayatta, Selya, and Barron,
Circuit Judges.
Rafael F. Castro Lang on brief for appellant.
Francisco A. Besosa-Martínez, Assistant United States
Attorney, Nelson Pérez-Sosa, Assistant United States Attorney,
Chief, Appellate Division, and Rosa Emilia Rodríguez-Vélez, United
States Attorney, on brief for appellee.
July 1, 2015
BARRON, Circuit Judge. The defendant challenges his
conviction and sentence for various gun crimes on a number of
grounds. Finding no error, we affirm.
I.
On August 8, 2013, a federal grand jury in Puerto Rico
indicted Juan G. Quiñones-Meléndez on one count of unlawfully
possessing a machinegun, in violation of 18 U.S.C. § 922(o).
Roughly two weeks later, on August 21, 2013, another federal grand
jury in Puerto Rico indicted Quiñones on two further counts: one
count of unlawfully possessing a firearm as a convicted felon, in
violation of 18 U.S.C. § 922(g)(1), and one count of aiding and
abetting another individual, Orlando Mojica-Rodríguez, in the
unlawful possession of automatic firearms, in violation of 18
U.S.C. § 922(o). Quiñones subsequently pled guilty, in separate
agreements, to the August 8 unlawful-possession count and the
August 21 aiding-and-abetting count.
In the plea agreements, the parties agreed that
Quiñones's base offense level was 22 and that Quiñones deserved a
three-level reduction in his offense level based on acceptance of
responsibility. The agreements contained no stipulation regarding
Quiñones's criminal history category. The parties did agree,
however, that they would recommend to the District Court the higher
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end of the applicable guidelines range depending on the criminal
history category. The parties also stipulated that, although
neither side would seek any further departures or variances from
the guidelines limit, the government could argue that the sentences
for the two pleaded-to offenses should run consecutively, and the
defense could argue that the two sentences should run concurrently.
The probation office determined that Quiñones's criminal
history fell into category II under the guidelines, leading to
guidelines ranges of 33-41 months and 41-51 months, respectively,
for each of Quiñones's offenses. At the sentencing hearing, both
the government and the defense argued for the higher end of that
range, but Quiñones argued for the sentences for each offense to
run concurrently to one another, while the government argued for
consecutive sentences for a total of 92 months. The District
Court, at the end of the lengthy sentencing hearing, decided that
neither the sentence recommended by the government nor the sentence
recommended by the defense sufficiently accounted for the
seriousness of the offense, the defendant's personal
characteristics, the context in which the offenses were committed,
and a number of other factors. The District Court thus imposed a
higher sentence of 60 months for each offense. And further, the
District Court decided that the sentences for each offense would
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run consecutively, so that the total sentence was 120 months in
prison.
Quiñones now appeals on a number of grounds.1 We discuss
each contention in turn.
II.
According to Quiñones, the prosecution breached the plea
agreements by seeking at the sentencing hearing to introduce video
footage depicting Quiñones's August 20, 2013, arrest. The video
shows Quiñones, who was then at a gas station, attempt to flee
from law enforcement by backing his car into a U.S. Marshals
vehicle -- which, though unmarked, had strobe lights that were
visible but not operating during this episode. The video also
shows Quiñones surrender when the Marshals -- who were then wearing
bulletproof vests emblazoned with the words "U.S. Marshal" --
appear in his sightline.
Quiñones contends that the government sought to
introduce this video evidence to convince the District Court to
1 The plea agreements did contain waiver-of-appeal clauses
under which Quiñones agreed to waive his right to appeal the
judgment and sentence should the District Court sentence him in
accordance with the terms of the agreements. But because the
District Court did not sentence Quiñones in accordance with the
terms of the plea agreements, the government does not seek to
enforce the waiver-of-appeal provisions.
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apply an enhancement under the sentencing guidelines for reckless
endangerment or obstruction of justice. Quiñones thus contends
that the government was attempting an end-run around the plea
agreements, which explicitly provided that neither the government
nor the defense would seek any departures or variances from the
recommended guidelines limit.
The government is barred not only from "explicit
repudiation of the government's assurances" contained in a plea
agreement but also -- "in the interests of fairness" -- from
undertaking "end-runs around them." United States v. Rivera-
Rodríguez, 489 F.3d 48, 57 (1st Cir. 2007) (quoting United States
v. Voccola, 600 F. Supp. 1534, 1537 (D.R.I. 1985)). But in this
case, there was no such end-run.
Quiñones's plea agreements specifically contemplated
that the government could argue that the sentences for the two
pleaded-to offenses should run consecutively. And a district
court, in deciding whether to impose concurrent or consecutive
sentences, see 18 U.S.C. § 3584(a), must consider the background
and characteristics of the offender, the nature and circumstances
of the offenses, the need for imposing consecutively running
sentences, and the other sentencing "factors set forth in
section 3553(a)," id. § 3584(b). Indeed, 18 U.S.C. § 3661
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specifies that "[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
sentence."
We thus agree with the District Court that the
prosecution was offering evidence to assist the District Court in
deciding whether to impose consecutive or concurrent sentences,
just as the parties' agreements allowed. And, in consequence, we
hold that the prosecution did not breach the plea agreements. See
United States v. Miranda-Martinez, ___ F.3d ___, 2015 WL 3876601
(1st Cir. June 24, 2015).
III.
The next issue concerns whether the sentence the
District Court imposed was unreasonable. We review a sentence's
reasonableness for abuse of discretion. United States v. Zapata-
Vázquez, 778 F.3d 21, 23 (1st Cir. 2015). In doing so, we begin
by "first look[ing] for procedural error," including to see whether
the District Court "'fail[ed] to consider appropriate sentencing
factors, predicat[ed] a sentence on clearly erroneous facts, or
neglect[ed] to explain the rationale for a variant sentence
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adequately.'" Id. (quoting United States v. Del Valle-Rodríguez,
761 F.3d 171, 176 (1st Cir. 2014)).
A.
1.
Quiñones contends that we need to remand the case for
resentencing before a different judge because the District Court
relied on extra-record material that led it to acquire a "pre-
formed bias" against him as a "very dangerous individual." But
the only cases Quiñones cites in support of the remedy he requests
are ones in which procedural error was already established because
the district court provided the defendant with no meaningful
opportunity to prepare and present a response to material on which
the sentence was based. See, e.g., United States v. Zavala-Martí,
715 F.3d 44, 56-57 (1st Cir. 2013); United States v. Berzon, 941
F.2d 8, 21 (1st Cir. 1991). And so, following his lead, we look
to see whether the District Court committed any procedural error
by drawing on extra-record information.
Quiñones's contention that the District Court did just
that traces in part to the sentencing hearing for Orlando Mojica-
Rodríguez, Quiñones's co-defendant for the August 21, 2013,
offenses. During that hearing -- held on January 16, 2014, nearly
two months before Quiñones's sentencing hearing -- the District
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Court thrice referred to "the person who was with" Mojica as a
"very dangerous individual." And it is uncontested that Quiñones
was the "person" to whom the District Court was then referring.2
"It is abundantly clear," however, that a sentencing
court has "the ability to consider information from court
proceedings at which the defendant was not present, such as a co-
defendant's sentencing hearing." United States v. Millán-Isaac,
749 F.3d 57, 69 (1st Cir. 2014). To be sure, that discretion is
bounded. The sentencing court must "base its sentence only upon
information with 'sufficient indicia of reliability to support its
probable accuracy,'" id. at 70 (quoting United States v. Gallardo-
Ortiz, 666 F.3d 808, 811 (1st Cir. 2012), and "afford the defendant
an opportunity to respond to the factual information offered
against him at sentencing," id. But the District Court did not
cross those bounds here.
We see no basis for deeming the information the District
Court relied upon to be unreliable. The District Court explained
at Quiñones's sentencing hearing the precise basis for its
expressed view that Quiñones was a "very dangerous individual."
2
The District Court, during Mojica's sentencing hearing,
specifically referred to the "very dangerous individual" as "El
Manco." "El Manco" is Quiñones's nickname.
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The District Court cited to Mojica's presentence report in general,
which the District Court characterized as "very similar" to the
information in Quiñones's own presentence report. And the District
Court cited more specifically to the fact that Quiñones was a
federal fugitive when he and Mojica were arrested and to Quiñones's
extensive criminal record. Those facts are corroborated by the
unobjected-to information in Quiñones's own presentence report.
Nor can Quiñones credibly claim to have been unfairly
surprised by the information on which the District Court based its
judgment that Quiñones was a "very dangerous individual." See id.
(a criminal defendant must not "be placed in a position where,
because of his ignorance of the information being used against
him, he is effectively denied an opportunity to comment on or
otherwise challenge material information considered by the
district court" (quoting Rivera-Rodríguez, 489 F.3d at 54)). In
fact, Quiñones's counsel was the first one to raise the concern
about the District Court's statements regarding Quiñones at the
earlier sentencing hearing for Mojica. This case is thus not like
the one on which Quiñones relies, in which we held it was
procedural error to rely on evidence from an earlier proceeding
involving another defendant at which the appellant was not present.
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See United States v. Avilés-Santiago, 558 F. App'x 7, 10 (1st Cir.
2014).
Finally, Quiñones does suggest that the District Court
also relied for its opinion about Quiñones's dangerousness on an
unidentified source of information not included in the record in
Quiñones's case or in Mojica's. But Quiñones's counsel has never
identified what any such extra-record source of information might
be -- either when asked to do so by the District Court at the
sentencing hearing or in these appeals. And thus, this wholly
unfounded assertion supplies no possible ground for questioning
the propriety of the District Court's actions at sentencing. We
thus find no error here.3
2.
Quiñones also challenges the District Court's
application of the sentencing guidelines. According to Quiñones,
the sentencing guidelines expressly recommend that a district
court impose concurrent -- not consecutive -- sentences where a
3 Nor do we find error in the District Judge's admission that,
before sentencing, he discussed Quiñones's case with his law clerk.
Although ex parte contact between a law clerk and members of a
jury may constitute reversible error, Standard Alliance Indus.,
Inc. v. Black Clawson Co., 587 F.2d 813, 828-29 (6th Cir. 1978),
a judge clearly does not transgress any lawful bounds by privately
discussing cases with his chambers staff.
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defendant is convicted of multiple offenses that are "grouped"
under the guidelines. See U.S.S.G. § 5G1.2. Quiñones contends
that because his two pleaded-to offenses were "grouped" offenses
under U.S.S.G. § 3D1.2(d), the District Court erred in failing to
"specifically address[] the Guidelines' recommendation for a
concurrent sentence for the grouped offenses." See Gall v. United
States, 552 U.S. 38 (2007).
But the District Court was presented with this argument
at the sentencing hearing, and, upon hearing it, seemed to accept
the legal basis for it. The District Court went on, however, to
explain in detail its reasons for sentencing the defendant to
consecutive 60-month sentences rather than a concurrent term. The
record shows that the District Court, in deciding whether to impose
the sentences consecutively or concurrently, adequately
"consider[ed], as to each offense for which a term of imprisonment
is being imposed, the factors set forth in section 3553(a)." 18
U.S.C. § 3584(b); see Setser v. United States, 132 S. Ct. 1463,
1468 (2012) ("Judges have long been understood to have discretion
to select whether the sentences they impose will run concurrently
or consecutively with respect to other sentences that they
impose."). We thus reject this challenge to the District Court's
application of the sentencing guidelines, as the record does not
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support the defendant's contention that the District Court erred
in failing to account for the guidelines in opting for consecutive
sentences.
B.
The final issue the government addresses is whether the
120-month sentence the District Court imposed is substantively
reasonable. It is far from clear that Quiñones himself raises
this issue. But, in any event, we have no trouble concluding that
the sentence imposed is a substantively reasonable one.
"The hallmarks of substantively reasonable sentence are
'a plausible sentencing rationale and a defensible result.'"
Zapata-Vázquez, 778 F.3d at 24 (quoting United States v. Martin,
520 F.3d 87, 96 (1st Cir. 2008)); see also United States v. Denson,
689 F.3d 21, 27 (1st Cir. 2012) (substantive reasonableness
"depends largely on whether the sentence imposed represents a
defensible result supported by a plausible rationale"). In
fashioning Quiñones's sentence, the District Court relied on the
defendant's many past "brushes . . . with the law," the heightened
dangerousness posed by automatic weapons of the sort Quiñones had
admitted possessing, and the seriousness of firearm offenses in
Puerto Rico. The District Court also specifically found that there
was no basis in the record to find that the defendant suffered
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from any mental disorder that would mitigate the seriousness of
his offenses. And the District Court further addressed each of
the sentencing factors set forth in 18 U.S.C. § 3553(a) directly.
The District Court thus provided more than a plausible sentencing
rationale for the 120-month sentence, which on these facts is a
defensible result. We accordingly reject this claimed error --
to the extent it is made at all -- as well.
IV.
The prosecution did not breach its plea agreements with
Quiñones, and the sentence the District Court imposed was neither
procedurally nor substantively unreasonable. As a consequence, we
affirm.
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