United States v. Zapata-Vazquez ( 2015 )

United States Court of Appeals
For the First Circuit
No. 13-2170
UNITED STATES OF AMERICA,
Appellee,
v.
GIOVANNY ZAPATA-VÁZQUEZ,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Francisco A. Besosa, U.S. District Judge]
Before
Torruella, Kayatta, and Barron,
Circuit Judges.
Lydia Lizarríbar-Masini on brief for appellant.
Rosa Emilia Rodríguez-Vélez, United States Attorney, Nelson
Pérez-Sosa, Assistant United States Attorney, Chief, Appellate
Division, and John A. Mathews II, Assistant United States Attorney,
on brief for appellee.
January 30, 2015
KAYATTA, Circuit Judge. Defendant-appellant Giovanny
Zapata-Vázquez ("Zapata") appeals the district court’s imposition
of an above-Guidelines prison sentence of 72 months after he
pleaded guilty to one count of possessing a firearm in furtherance
of a drug trafficking crime in violation of 18 U.S.C.
§ 924(c)(1)(A). Finding no error, we affirm.
I. Background
Because this appeal follows a guilty plea, we derive the
facts from the plea agreement, the change-of-plea colloquy, the
unchallenged portions of the presentence investigation report, and
the sentencing hearing transcript. United States v. Ocasio-Cancel,
727 F.3d 85, 88 (1st Cir. 2013). Patrolling police officers
approached Zapata and two other individuals after the officers
observed the group in an abandoned residence and smelled marijuana.
The officers seized 64 small bags of cocaine base ("crack cocaine")
and a loaded 9mm pistol. Zapata admitted that the firearm and
drugs belonged to him, and then consented to a search of his
vehicle. He told the officers that they would find marijuana, two
loaded magazines, and a large amount of cash, all of which the
officers did find. At the time of the offense, Zapata was on
probation for a local drug distribution offense.
Zapata was charged with one count of possession with
intent to distribute crack cocaine, 21 U.S.C. § 841(a)(1), and one
count of possessing a firearm in furtherance of a drug crime, 18
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U.S.C. § 924(c)(1)(A). Zapata pleaded guilty to the firearm
offense.1 According to a written plea agreement entered pursuant
to Fed. R. Crim. P. 11(c)(1)(B), Zapata and the government
recommended a prison sentence of 60 months, which was the
Guidelines sentence for the offense. See U.S.S.G. § 2K2.4(b); 18
U.S.C. § 924(c)(1)(A)(i). Although the district court "perfectly
underst[oo]d the reasons why the parties . . . recommended a
sentence of 60 months, because of the fact that Mr. Zapata came
forth immediately and admitted what he did," the court nonetheless
imposed a variant sentence of 72 months primarily because of the
seriousness of the firearm offense in a community, like Puerto
Rico, where such crimes are pervasive, and because Zapata was on
probation at the time of the offense. Zapata now challenges the
reasonableness of his variant sentence.
II. Analysis
We review the reasonableness of a sentence for an abuse
of discretion. United States v. Del Valle-Rodríguez, 761 F.3d 171,
176 (1st Cir. 2014). We first look for procedural error, including
"failing to consider appropriate sentencing factors, predicating a
sentence on clearly erroneous facts, or neglecting to explain the
rationale for a variant sentence adequately." Id. Our review then
shifts to the substantive reasonableness of the sentence. Id.1
The district court dismissed the drug distribution count at
the government's request.
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There is no basis for any of Zapata’s claims of
procedural error. He first claims that the district court failed
to consider all of the 18 U.S.C. § 3553(a) sentencing factors,
especially the need "to provide the defendant with needed
educational or vocational training, medical care, or other
correctional treatment in the most effective manner." 18 U.S.C.
§ 3553(a)(2)(D). Here, the district court announced that it "ha[d]
reviewed the guideline calculations," and "ha[d] also considered
the other sentencing factors set forth in Title 18, United States
Code section 3553(a)." This statement "is entitled to some
weight." United States v. Vega-Salgado, 769 F.3d 100, 105 (1st
Cir. 2014) (quoting United States v. Clogston, 662 F.3d 588, 590
(1st Cir. 2011)). "[P]arsing through [the section 3553(a) factors]
mechanically is not" required. Id. Here, the district court did
expressly consider various factors, including the nature,
circumstances, and seriousness of the offense, Zapata’s background,
adequate deterrence, and the need to protect the public. 18 U.S.C.
§ 3553(a)(1), (2)(A)-(C). To the extent that Zapata complains that
the district court failed to consider rehabilitation, id.§ 3553(a)(2)(D), the district court’s acknowledgment of his history
of drug abuse and recommendation of a drug treatment program (if
Zapata qualified) belies his complaint.
Zapata’s other claim of procedural error--that the
district court placed too much emphasis on the prevalence of
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firearms and violent crime in Puerto Rico without regard to the
specific circumstances of his case--fares no better. It is
well-settled that the sentencing court may take into account the
characteristics of the community in which the crime took place when
weighing the offense’s seriousness and the need for deterrence.
United States v. Flores-Machicote, 706 F.3d 16, 23 (1st Cir. 2013)
("[T]he incidence of particular crimes in the relevant community
appropriately informs and contextualizes the relevant need for
deterrence."); United States v. Politano, 522 F.3d 69, 74 (1st Cir.
2008) ("In considering the characteristics of [a] community, the
district court has the authority to conclude that the impact of [a]
particular offense is more serious than that reflected by the
Sentencing Commission."). Here, the district court could properly
take into account its view that "[t]his type of crime" is
"pervasive" in Puerto Rico and "more serious . . . than if [it] had
occurred in a less violent society." The district court "has broad
discretion to assay [sentencing factors] and need not afford equal
weight to each factor in a given case," but "may not go too far" in
emphasizing community-based rather than case-specific factors.
Flores-Machicote, 706 F.3d at 23-24. The sentencing judge
underscored community characteristics, but not at the expense of
also weighing the specific circumstances of Zapata’s case--the
precise gun at issue and its connection to a particular crime,
Zapata’s background and probation status, and his acceptance of
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responsibility. See United States v. Santiago-Rivera, 744 F.3d
229, 233 (1st Cir. 2014).
Zapata’s claim of substantive unreasonableness
essentially repackages his argument that the court placed too much
weight on community considerations at the expense of other
sentencing factors, including the need for rehabilitation and
Zapata’s cooperation with police. The hallmarks of a substantively
reasonable sentence are "a plausible sentencing rationale and a
defensible result." United States v. Martin, 520 F.3d 87, 96 (1st
Cir. 2008). Here, the district court relied primarily on the
seriousness of firearm offenses in Puerto Rico and the fact that
Zapata committed the current offense while on probation for a drug
offense conviction. The district court further found that a
60-month sentence would not meet the goals in section 3553(a)(2)
because such a sentence "does not reflect the seriousness of the
offense, does not promote respect for the law, does not protect the
public from further crimes by Mr. Zapata and does not address the
issues of deterrence and punishment." These reasons were enough to
form a plausible rationale for a variant sentence. See
Flores-Machicote, 706 F.3d at 25. Likewise, these same
considerations adequately justified the magnitude of the
twelve-month upward variance. See id. (five-year sentence that was
nineteen months above top of guidelines range was substantively
reasonable for firearm possession offense). In any given case
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there is "a range of reasonable sentences," and Zapata’s sentence
does not "fall[] outside the expansive boundaries of that
universe." Martin, 520 F.3d at 92.
III. Conclusion
For the foregoing reasons, we affirm.
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