United States v. Gonzalez-Barbosa , 920 F.3d 125 ( 2019 )

United States Court of Appeals
For the First Circuit
No. 17-1688
UNITED STATES OF AMERICA,
Appellee,
v.
JONATHAN GONZÁLEZ-BARBOSA,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Aida M. Delgado-Colón, U.S. District Judge]
Before
Howard, Chief Judge,
Lipez and Barron, Circuit Judges.
Marie L. Cortés Cortés for appellant.
Antonio L. Pérez-Alonso, Assistant United States Attorney,
with whom 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, were on brief for appellee.
April 8, 2019
HOWARD, Chief Judge. Appellant Jonathan1 González-
Barbosa appeals his incarcerative sentence of 97 months, claiming
that the district court erred in calculating his Criminal History
Category under the Sentencing Guidelines, because a prior
conviction was "relevant conduct" and therefore not for an offense
that was separate from his present conviction. González also
challenges his sentence as procedurally unreasonable based on
sentence disparities and an inadequate explanation by the judge.
Discerning no error by the district court, we affirm the
sentence.
I. BACKGROUND
In 2010, González was indicted along with twenty-seven
others for conspiring to possess with intent to distribute
controlled substances within 1000 feet of the Columbus Landing
Public Housing Project in Mayaguez, Puerto Rico, in violation of
21 U.S.C. §§ 846 and 860. The indictment listed González as a
seller in the conspiracy, which lasted between 2002 and 2010.
González pled guilty and was sentenced to 60 months of imprisonment
followed by 8 years of supervised release.
While serving his supervised release term, González was
arrested again in July 2016. This time, he and thirty-nine others
1 Parts of the record, including the 2016 indictment and the
change of plea and sentencing hearing transcripts, refer to the
appellant as "Johnatan González-Barbosa."
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were indicted for violations of § 846 and other crimes between
2010 and 2016. These other crimes included aiding and abetting in
the possession with intent to distribute cocaine base, cocaine,
and marijuana within 1000 feet of the Columbus Landing Public
Housing Project, as well as conspiracy to possess firearms in
furtherance of a drug trafficking offense. Again, González pled
guilty.
Under the plea agreement, González was to be held
responsible for at least 500 grams but less than 2 kilograms of
cocaine. He also admitted to acting as a drug point owner and a
runner in the conspiracy. The parties agreed that he would be
assigned a base offense level (BOL) of 24, as well as a two-level
enhancement for protected location, a two-level enhancement for a
leadership role in the offense, and a three-level reduction for
acceptance of responsibility for a total offense level (TOL) of
25. As provided in the Sentencing Guidelines, González's guideline
sentencing range (GSR) would be determined by taking his TOL and
his Criminal History Category (CHC) and plotting them on the
guidelines table. The plea agreement made no stipulation as to
González's CHC, but made a joint recommendation of 72 months'
imprisonment "if Defendant's CHC is I to III."
The Presentence Investigation Report (PSR) prepared by
the United States Probation Office mirrored the plea agreement's
guidelines calculation, but added a two-level enhancement for the
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foreseeable possession of a firearm during the offense, as provided
by U.S.S.G. § 2D1.1(b). The PSR therefore assigned González a TOL
of 27. With respect to González's CHC, the PSR added three points
for his prior conviction relating to the 2002-2010 conspiracy and
two points because the instant offense was committed during a term
of supervised release. Consequently, the PSR recommended a CHC of
III. With a TOL of 27 and CHC of III, the PSR calculated the GSR
to be 87 to 108 months.
González objected to the PSR's firearms enhancement,
arguing that the TOL should be 25 as stipulated in the plea
agreement. He also asserted that his participation in the
conspiracy was limited, because he was incarcerated for most of
the duration of the 2010-2016 conspiracy. González made no other
objections to the PSR. The U.S. Probation Officer rejected
González's objections and left the PSR sentencing calculations
unchanged.
At González's sentencing hearing, the district court
first imposed a sentence of 18 months' imprisonment for the
violation of supervised release. Turning to the sentence for the
2010-2016 conspiracy, the court noted that it had reviewed the
plea agreement, the PSR, González's sentencing memorandum, and his
objection to the firearms enhancement. After the court heard
arguments about the firearms enhancement and the recommended
sentence of 72 months, it accepted the PSR-recommended guideline
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sentencing range of 87 to 108 months' imprisonment. After
discussing the various § 3553(a) factors, the district court
imposed a sentence of 97 months' imprisonment to be served
consecutively to González's 18-month revocation sentence. This
appeal followed.
II. ANALYSIS
Before us, González argues that the district court
committed procedural error when it calculated the GSR to be 87 to
108 months. González claims that it was error to count his prior
conspiracy conviction in calculating his CHC because the prior
conviction was part of the same common scheme or plan as the
instant conviction and therefore was "relevant conduct" under
U.S.S.G. § 1B1.3. He further contends that the district court did
not adequately state on the record why it chose to sentence him
above the 72 months recommended by the plea agreement and that the
court again erred procedurally by giving him a disparately higher
sentence compared to some of his co-defendants.2 Each of these
arguments is futile.
As a threshold matter, the government maintains that
because González did not state these objections before the district
court, they should be deemed waived and therefore unreviewable.
2 Although González asserts that he is making a substantive
challenge to his sentence, all of his arguments are procedural,
and, regardless, his challenge would fail even under an abuse of
discretion review.
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In our circuit, "[a] party waives a right when he intentionally
relinquishes or abandons it." United States v. Orsini, 907 F.3d
115, 119 (1st Cir. 2018) (alteration in the original) (quoting
United States v. Rodriguez, 311 F.3d 435, 437 (1st Cir. 2002)).
This is distinct from when a party fails to timely assert a right,
which results in a forfeiture. Rodriguez, 311 F.3d at 437.
Forfeited issues can be reviewed for plain error. Id. González's
challenges fail under either standard.
To prevail on plain error review, González must show (1)
that an error occurred, (2) which was clear or obvious, and which
both (3) affected his substantial rights, and (4) seriously
impaired the fairness, integrity, or public reputation of the
judicial proceedings. United States v. Fuentes-Echevarria, 856
F.3d 22, 25 (1st Cir. 2017). We review each of his challenges in
turn.
A.
González first argues that the 2002-2010 conspiracy was
part of the instant offense and therefore his sentence for that
conspiracy should not have counted as a "prior sentence" under the
Sentencing Guidelines. See U.S.S.G. § 4A1.2 (2016). Under
Application Note 1 to § 4A1.2, "'[p]rior sentence' means a sentence
imposed prior to sentencing on the instant offense, other than a
sentence for conduct that is part of the instant offense." § 4A1.2
n.1. It further states that "[c]onduct that is part of the instant
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offense means conduct that is relevant conduct to the instant
offense under the provisions of §1B1.3." Id. That provision, in
turn, states that "relevant conduct" determinations shall be based
on:
[A]ll acts and omissions committed, aided, abetted,
counseled, commanded, induced, procured, or willfully
caused by the defendant . . . that occurred during the
commission of the offense of conviction, in preparation
for that offense, or in the course of attempting to avoid
detection or responsibility for that offense[.]
U.S.S.G. § 1B1.3(a)(1).
González asserts that because the 2002-2010 conspiracy involved
the same modus operandi, location, co-conspirators, dates, and
statute as the 2010-2016 conspiracy, his prior offense was
"relevant conduct" to the instant offense and his sentence for the
prior conviction should not qualify as a "prior sentence" for
purposes of his CHC calculation.
However, González's darts are blunted by § 4A1.2(a)(2),
which instructs that "[p]rior sentences always are counted
separately if the sentences were imposed for offenses that were
separated by an intervening arrest (i.e., the defendant is arrested
for the first offense prior to committing the second offense)."
González does not deny that his offenses were separated by an
intervening arrest, and he thus cannot escape the clear command of
this provision. He was arrested in 2010 for his participation in
the 2002-2010 conspiracy. After his release from imprisonment in
2014, he then engaged in additional criminal conduct. Indeed, at
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his second sentencing, González emphasized that his participation
in the 2010-2016 conspiracy did not commence until after he began
his supervised release. Moreover, as the government points out,
Application Note 5(C) of § 1B1.3 provides abundant clarity:
Example[]: (1) The defendant was convicted for the sale
of cocaine and sentenced to state prison. Immediately
upon release from prison, he again sold cocaine to the
same person, using the same accomplices and modus
operandi. The instant federal offense (the offense of
conviction) charges this latter sale. In this example,
the offense conduct relevant to the state prison
sentence is considered as prior criminal history, not as
part of the same course of conduct or common scheme or
plan as the offense of conviction.
The similarity between this example and the facts here is
unmistakable. There being no question that González received
sentences for offenses that were separated by an intervening
arrest, his first sentence was correctly counted as a prior
sentence.
B.
González next argues that the district court did not
adequately explain its reasoning for the sentence in open court as
required by 18 U.S.C. § 3553(c). See United States v. Robles-
Alvarez, 874 F.3d 46, 52 (1st Cir. 2017) ("A sentencing court
commits procedural error, and thus abuses its discretion, by, among
other things, 'failing to adequately explain the chosen
sentence.'" (quoting Gall v. United States, 552 U.S. 38, 51
(2007))). The adequacy of the sentencing court's explanation
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depends heavily on context. See Rita v. United States, 551 U.S.
338, 356 (2007). The district court is required to "set forth
enough to satisfy the appellate court that [it] has considered the
parties' arguments and has a reasoned basis for exercising [its]
own legal decisionmaking authority." Id. "A sentence that falls
inside a properly calculated guideline sentencing range requires
lesser degree of explanation than those that fall outside the
[GSR]." United States v. Crespo-Rios, 787 F.3d 34, 39 (1st Cir.
2015) (internal quotation marks and alterations omitted).
Here, after hearing arguments from both sides regarding
the recommended sentence, the district court stated that it was
accepting the guideline range recommended in the PSR. This meant
that the court was beginning with a GSR of 87 to 108 months. The
court then proceeded to discuss its consideration of the § 3553
factors, including González's age, dependents, employment,
education, health, upbringing, lack of a father-figure, history of
drug use, life goals, criminal history, and likelihood of
recidivism. The court took particular note of the fact that after
González's release following his first sentence, instead of
following his mother to Florida, he took over her former role as
a leader in the drug trafficking conspiracy at Columbus Landing.
The court also noted that González had been illegally accessing
phones or similar devices while in prison, as evidenced by his
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social media postings at the time. Based on these factors, the
district court imposed a sentence of 97 months.
González contends that the court needed to explicitly
state why it was imposing a "variant" sentence above the 72 months
recommended by the plea agreement. But the sentence imposed was
not variant; it was right in the middle of the GSR, as explained
clearly by the district court. The district court also clearly
explained the reasoning behind the GSR it was applying when it
opted to include the firearms enhancement in the TOL. The district
court's explanation of the sentence was sufficient. See United
States v. Turbides-Leonardo, 468 F.3d 34, 40 (1st Cir. 2006)
("While the court ordinarily should identify the main factors upon
which it relies, its statement need not be either lengthy or
detailed."). González has shown no error in the district court's
explanation.
C.
Lastly, González argues that his sentence is
procedurally unreasonable because he was given a longer sentence
than certain co-defendants who were also charged in both
conspiracies. González specifically identifies two co-defendants,
Roderick Perez-Gonzalez and Axel Bolta-Diaz. Each of them pled
guilty to participating in the instant conspiracy and received
sentences of 72 months. This disparity, González argues, is purely
arbitrary and therefore error.
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Judges are directed to consider "the need to avoid
unwarranted sentence disparities among defendants with similar
records who have been found guilty of similar conduct." 18 U.S.C.
§ 3553(a)(6). While "this provision is primarily aimed at national
disparities," United States v. Reyes-Santiago, 804 F.3d 453, 467
(1st Cir. 2015) (international quotation marks omitted), it also
"permits consideration of disparities among co-defendants."
United States v. Robles-Alvarez, 874 F.3d 46, 52 (1st Cir. 2017).
Courts frequently reject disparity claims, however, when appealing
defendants ignore material differences between their own
circumstances and those of their co-defendants, Reyes-Santiago,
804 F.3d at 467.
By his own admission, González's circumstances
materially differ from those of the highlighted co-defendants.
Although it is true that each was charged in the instant case and
in the prior conspiracy, Bolta-Diaz was not assessed a leadership
enhancement and Perez-Gonzalez was not assessed a firearms
enhancement. González received both enhancements. In sentence
disparity claims, a defendant must compare apples to apples.
United States v. Mateo-Espejo, 426 F.3d 508, 514 (1st Cir. 2005).
Without showing appropriate comparators, Gonzalez's disparity
challenge cannot proceed.
González argues further that his sentence enhancements
were disparately and unreasonably assessed by the district court,
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when the underlying conduct engaged in by his co-defendants was no
different than his. In particular, González posits that the
district court's rationale for assessing a two-point firearms
enhancement was that he had returned to the conspiracy as a drug
point owner, yet the court failed to apply the same enhancement to
Perez-Gonzalez, who was also a drug point owner. The district
court, however, noted that González's Probation Officer had
recommended the enhancement, that Gonzalez was "one of the two
main leaders" of the conspiracy along with his brother, and that
González's "right-hand man," his brother, had been photographed
carrying firearms. Additionally, González concedes that the
record contains no information regarding Bolta-Diaz's or Perez-
Gonzalez's criminal histories. Neither does the record contain
their sentencing hearing transcripts. Because González does not
show that there was an arbitrary disparity between him and a
similarly-situated co-defendant that was clear or obvious, this
appeal cannot succeed.
III. CONCLUSION
For the foregoing reasons, we AFFIRM the sentence
imposed by the district court.
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