United States v. Vargas-Garcia , 794 F.3d 162 ( 2015 )

United States Court of Appeals
For the First Circuit
No. 14-1335
UNITED STATES OF AMERICA,
Appellee,
v.
RAYMON VARGAS-GARCÍA,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Juan M. Pérez-Giménez, U.S. District Judge]
Before
Kayatta, Selya and Lipez,
Circuit Judges.
Irma R. Valldejuli 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.
July 16, 2015
SELYA, Circuit Judge. Disappointed by a sentence that
was six months longer than he had hoped, defendant-appellant Raymon
Vargas-García appeals on two grounds: that the sentence lacks
adequate explanation and that it is substantively unreasonable.
While his disappointment is understandable, his claims of error
are without merit. Accordingly, we affirm.
I.
Background
"Since this appeal trails in the wake of a guilty plea,
we draw the facts from the plea agreement, the change-of-plea
colloquy, the undisputed portions of the presentence investigation
report (PSI Report), and the transcript of the disposition
hearing." United States v. Rivera-González, 776 F.3d 45, 47 (1st
Cir. 2015). In July of 2013, the defendant was arrested after a
search of his residence in Ponce, Puerto Rico, turned up 79 "decks"
of heroin, a marijuana cigarette, $7,757 in cash, two loaded guns,
and an assortment of ammunition. The defendant admitted his
ownership of the seized items and asserted that he possessed the
firearms to protect himself "from rival gang members."
A federal grand jury subsequently returned a two-count
indictment against the defendant. One count charged him with
possession with intent to distribute controlled substances. See
21 U.S.C. § 841(a). The other charged him with possession of
firearms in furtherance of a drug-trafficking crime. See 18 U.S.C.
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§ 924(c). The latter count carried a five-year mandatory minimum
and a maximum sentence of life imprisonment, to run consecutively
to any sentence imposed for the underlying drug-trafficking
offense. See id. § 924(c)(1)(A), (D)(ii).
Although the defendant initially maintained his
innocence, he later had a change of heart and entered into a plea
agreement with the government (the Agreement). Under the
Agreement, the defendant agreed to plead guilty to the firearms
count, and the government agreed to drop the drug-trafficking
count. The parties jointly agreed to recommend a sentence of 84
months' imprisonment.
The district court accepted the defendant's guilty plea.
When received, the PSI Report did not contain a recommended
guideline sentencing range but, rather, simply noted that section
924(c) mandated a minimum term of imprisonment of five years. The
PSI Report also explained that, in 2010, the defendant had been
convicted of three violations of Puerto Rico law arising out of
his illegal possession of a charged semiautomatic weapon. In 2013,
while serving a 15-year probationary term for those convictions,
the defendant was arrested for possession of a controlled substance
and counterfeiting a license.1 Those charges are still pending,
but the probationary term on the earlier charges was revoked and
1That arrest antedated the defendant's arrest for the crimes
charged in this case.
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a Commonwealth court sentenced the defendant to serve not only his
original 15-year incarcerative term but also an additional 17
months.
At the disposition hearing, defense counsel urged the
court to hew to the agreed 84-month term of immurement and to run
the sentence concurrently with the unexpired portion of the
defendant's Puerto Rico sentence. The prosecutor, too,
recommended the 84-month sentence but suggested that it should run
consecutively to the Puerto Rico sentence. After acknowledging
the parties' positions, the district court stated:
The Court will consider the
seriousness of the offense, the need to
promote respect for the law, as well as
the other factors contemplated in [18
U.S.C. § 3553(a)]. Before the Court is
a 24-year-old individual with two
dependents, he has a high school diploma.
He is in good health and has no history
of illegal drug use. However, he has a
history of mental health. He has two
prior criminal arrests, one that resulted
in a criminal conviction and one that is
pending resolution.
The court proceeded to impose a 90-month term of immurement, to
run consecutively to any other sentence then being served. This
timely appeal followed.2
2Although the Agreement contains a waiver-of-appeal clause,
that clause conditioned the waiver on the imposition of a sentence
in "accordance with the terms and conditions set forth in the
Sentence Recommendation provisions of [the Agreement]." The
sentence imposed by the district court was longer than that
envisioned by the parties and, thus, was not within the compass of
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II.
Analysis
Appellate review of federal criminal sentences employs
a binary mechanism: a reviewing court must first examine claims
relating to the procedural aspects of the sentence and then examine
claims relating to its substantive reasonableness. See United
States v. Clogston, 662 F.3d 588, 590 (1st Cir. 2011); United
States v. Martin, 520 F.3d 87, 92 (1st Cir. 2008). Throughout,
review is for abuse of discretion. See Clogston, 662 F.3d at 590.
1. Procedural Reasonableness. In the case at hand, the
defendant begins with a procedural attack alleging that the
district court did not adequately explain the rationale for the
sentence. Because no contemporaneous objection was interposed at
sentencing, "the plain error standard supplants the customary
standard of review." United States v. Dávila-González, 595 F.3d
42, 47 (1st Cir. 2010). To prevail under plain error review, the
defendant must show "(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).
the Sentence Recommendation provision. Consequently, the waiver-
of-appeal clause does not pretermit this appeal. See, e.g.,
Rivera-González, 776 F.3d at 49.
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Our appraisal of the defendant's procedural challenge
starts with 18 U.S.C. § 3553(c), which provides that "[t]he court,
at the time of sentencing, shall state in open court the reasons
for its imposition of the particular sentence[.]" This statute
obliges a sentencing court to "adequately explain the chosen
sentence to allow for meaningful appellate review and to promote
the perception of fair sentencing." Gall v. United States, 552
U.S. 38, 50 (2007). The adequacy of a sentencing court's
explanation must be judged case by case, but this requirement
consistently has been "read in a practical, common-sense way."
Dávila-González, 595 F.3d at 48.
One overarching principle can be gleaned from the case
law. It is clear beyond peradventure that the sentencing court
need only identify the main factors behind its decision. See
United States v. Turbides-Leonardo, 468 F.3d 34, 40-41 (1st Cir.
2006). The court need not "be precise to the point of pedantry."
Id. at 40.
In this instance, there is no applicable guideline
sentencing range; instead, the statutory mandatory minimum
sentence is the guideline sentence. See Rivera-González, 776 F.3d
at 49. Under those circumstances ─ that is, when application of
the sentencing guidelines yields a single guideline sentence
rather than a guideline sentencing range ─ a sentence in excess of
the guideline sentence is treated as an upward variance. See
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United States v. Oquendo-Garcia, 783 F.3d 54, 56 (1st Cir. 2015);
Rivera-González, 776 F.3d at 49. It follows that the sentence
imposed here constitutes an upward variance of 30 months over the
guideline sentence of 60 months. See 18 U.S.C. § 924(c)(1)(A)(i);
USSG §2K2.4(b). This may be significant because an upwardly
variant sentence typically requires a fuller explanation than a
guideline sentence. See Gall, 552 U.S. at 50; Turbides-Leonardo,
468 F.3d at 41.
In this case, the explanation for the imposed sentence
is admittedly skimpy. Nevertheless, we think it not clearly
insufficient: at the disposition hearing, the district court took
pains to reference the defendant's significant criminal history,
the seriousness of the offense of conviction, and the need to
promote respect for the law.3 Given the facts of this case
(including the absence of any contemporaneous objection), no more
was exigible. After all, "[w]here the record permits a reviewing
court to identify both a discrete aspect of an offender's conduct
and a connection between that behavior and the aims of sentencing,
the sentence is sufficiently explained to pass muster under section
3553(c)." United States v. Fernández-Cabrera, 625 F.3d 48, 54
3 The district court also took into account potentially
mitigating factors, such as the defendant's youth and his history
of mental health problems.
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(1st Cir. 2010). We conclude, therefore, that no clear or obvious
"lack of explanation" error occurred.
Nor was the district court obliged to explain why it
rejected the parties' joint recommendation for an 84-month
sentence. See United States v. Ruiz-Huertas, __ F.3d __, __ (1st
Cir. 2015)[No. 14-1038, slip op. at 9]. Though a sentencing court
may have a duty to explain why it chose a particular sentence, it
has "no corollary duty to explain why it eschewed other suggested
sentences." United States v. Vega-Salgado, 769 F.3d 100, 104 (1st
Cir. 2014).
2. Substantive Reasonableness. This brings us to the
defendant's contention that the length of the sentence renders it
substantively unreasonable. Though the defendant did not raise
this claim below, the standard of review is in doubt. As we
recently explained, most courts hold that an objection in the
district court is not needed to preserve a claim that a sentence
is substantively unreasonable. See Ruiz-Huertas, __ F.3d at __
[slip op. at 10] (discussing this question and collecting cases).
While a pair of First Circuit cases have expressed a contrary view
(albeit without any analysis of the issue), see id. at __ n.4 [slip
op. at 10 n.4], we need not resolve this apparent anomaly today.
Even if we assume, favorably to the defendant, that our review is
for abuse of discretion, the defendant's claim of error founders.
We explain briefly.
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The "touchstone of abuse of discretion review in federal
sentencing is reasonableness." United States v. Vargas-Dávila,
649 F.3d 129, 130 (1st Cir. 2011). Reasonableness is itself an
inherently fluid concept. See Martin, 520 F.3d at 92. Thus, in
any given case, "[t]here is no one reasonable sentence . . . but,
rather, a universe of reasonable sentencing outcomes." Clogston,
662 F.3d at 592.
When reviewing a challenge to the substantive
reasonableness of a sentence, substantial deference is due to the
sentencing court's discretion. See Gall, 552 U.S. at 51; Clogston,
662 F.3d at 593. This deferential approach recognizes that though
"[a] sentencing court is under a mandate to consider a myriad of
relevant factors, . . . the weighting of those factors is largely
within the court's informed discretion." Clogston, 662 F.3d at
593. Even when the court imposes a non-guideline sentence, a
reviewing court must afford "due deference to the district court's
decision that the § 3553(a) factors, on a whole, justify the extent
of the variance." Martin, 520 F.3d at 92 (quoting Gall, 552 U.S.
at 51). Fidelity to this deferential standard requires that a
challenge based on substantive reasonableness must comprise more
than a thinly disguised attempt by the defendant "to substitute
his judgment for that of the sentencing court." Clogston, 662
F.3d at 593.
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In the last analysis, a challenge to the substantive
reasonableness of a sentence turns on whether the sentencing court
has offered a plausible rationale for the sentence and whether the
sentence itself represents a defensible result. See United States
v. Flores-Machicote, 706 F.3d 16, 25 (1st Cir. 2013); Martin, 520
F.3d at 96. Here, the court's sentencing rationale was plausible:
as we already have explained, the court's reasoning stressed the
significant nature of the defendant's criminal history, the
seriousness of the offense, and the need to promote respect for
the law. While the defendant points to some mitigating
considerations, a sentencing court is entitled to conduct an
appropriate triage and weigh some factors more heavily than others.
See United States v. Madera-Ortiz, 637 F.3d 26, 32 (1st Cir. 2011).
We likewise conclude that the challenged sentence
embodies a defensible result. Sentences are subject to what has
been called the "parsimony principle." See, e.g., Turbides-
Leonardo, 468 F.3d at 41. This principle, enshrined in 18 U.S.C.
§ 3553(a), directs the court to "impose a sentence sufficient, but
not greater than necessary" to achieve the legitimate goals of
sentencing. Given the serious nature of the offense of conviction
and the tarnished record of the offender, the challenged sentence
can reasonably be viewed as no greater than necessary to achieve
such valid sentencing objectives as punishment, deterrence,
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incapacitation, and the need to promote respect for the law. See
18 U.S.C. § 3553(a)(2)(A)-(C).
To cinch matters, the defendant concedes that some
upward variance from the guideline sentence — from 60 months to 84
months — was reasonable. His argument is that even though an
increase of this magnitude would have been acceptable, a variance
that went six months further was substantively unreasonable. Yet,
the defendant has not plausibly explained why an 84-month sentence
would be substantively reasonable but a 90-month sentence would
not. In view of the relatively small spread between the sentence
that the defendant concedes would have been appropriate (84 months)
and the sentence that he contends was inappropriate (90 months),
we cannot say that the sentence imposed either falls outside the
universe of reasonable sentencing outcomes or fails to represent
a defensible result.
III.
Conclusion
We need go no further. For the reasons elucidated above,
the sentence is
Affirmed.
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