United States v. Severino-Pacheco , 911 F.3d 14 ( 2018 )

United States Court of Appeals
For the First Circuit
No. 17-1806
UNITED STATES OF AMERICA,
Appellee,
v.
FRANCISCO SEVERINO-PACHECO,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Francisco A. Besosa, U.S. District Judge]
Before
Lynch, Stahl, and Barron,
Circuit Judges.
Mauricio Hernandez Arroyo and Law Offices of Mauricio
Hernandez Arroyo on brief for appellant.
Rosa Emilia Rodriguez-Velez, United States Attorney, Mariana
E. Bauza-Almonte, Assistant United States Attorney, and Julia M.
Meconiates, Assistant United States Attorney, on brief for
appellee.
December 18, 2018
STAHL, Circuit Judge. Defendant-Appellant Francisco
Severino-Pacheco ("Severino") appeals his sentence for illegal
possession of a machine gun. Following Severino's guilty plea,
the district court calculated a Sentencing Guidelines
("Guidelines") range of 24 to 30 months. The district court
ultimately imposed an above-Guidelines sentence of 40 months,
noting, inter alia, that Severino had recklessly fired an automatic
weapon in a neighborhood.
On appeal, Severino challenges the procedural and
substantive reasonableness of his sentence. He contends that the
district court erred by relying on disputed facts and abused its
discretion in imposing an above-Guidelines sentence. Finding no
reversible error or abuse of discretion, we affirm.
I. Factual Background
Because this sentencing appeal follows from a guilty
plea, we "glean the relevant facts from the plea agreement, the
change-of-plea colloquy, the presentence investigation report
[PSR], and the transcript of [sentencing]." United States v.
Fernández-Cabrera, 625 F.3d 48, 50 (1st Cir. 2010).
On February 10, 2017, the Puerto Rico Police Department
("PRPD") in San Juan received a call reporting a speeding vehicle
and gunfire in the Hato Rey Este Precinct. PRPD officers in Hato
Rey also heard gunfire and observed a black vehicle speeding with
its headlights turned off coming from the direction of the gunfire.
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Those officers pursued the vehicle and eventually stopped it, but
the driver fled and was never located. However, officers were
able to apprehend the vehicle's passenger, later identified as
Severino.
Officers conducted a safety frisk of Severino and
discovered a .357 caliber firearm with an empty magazine hidden in
his groin area, along with a black holster, two cell phones, and
$181 in cash. Officers secured the firearm and placed Severino
under arrest. In a separate search, officers recovered 14 shell
casings from .357 caliber bullets from the area where the gunfire
was reported.
After Severino was transported to the local precinct
headquarters, he was read his Miranda rights, and thereafter
refused to speak with PRPD officers. Later, special agents from
the Homeland Security Investigations ("HSI") Public Safety Group
arrived and again read Severino his rights. After this recitation,
Severino waived his rights and voluntarily spoke with the agents.
Severino told the HSI agents that he was with the driver
of the vehicle, whom he refused to identify, when he "decided to
fire a 'burst' from his firearm outside the [car] window for no
apparent reason." Severino added that he "did not have the high
capacity magazine fully loaded, but he only had around 14 rounds
inside it." He also admitted to purchasing the gun for $1,600,
knowing that it was modified to operate as a fully automatic
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weapon. Upon examination, it was revealed that the weapon in
question was a firearm as defined by 18 U.S.C. § 921(a)(3)(A) and
a machine gun as defined by 26 U.S.C. § 5845(b). It was further
determined that the firearm travelled in or affected interstate
and/or foreign commerce.
II. Procedural Background
On April 4, 2017, Severino pleaded guilty to illegal
possession of a machine gun in violation of 18 U.S.C. § 922(o).
His base offense level was 20, which was subsequently reduced three
levels pursuant to U.S.S.G. § 3E1.1(a)-(b) for acceptance of
responsibility, yielding a final offense level of 17. Severino's
Criminal History Category was determined to be I, resulting in a
Guidelines range of 24 to 30 months. Severino did not file any
written objection to the PSR.
At sentencing, defense counsel requested a sentence of
24 months, whereas the government requested an above-Guidelines
sentence of 40 months. For the first time, defense counsel voiced
concern that the government's sentencing memorandum included
Severino's admission to firing the weapon:1
[The] Government is requesting an upward
variance based [in part on] Mr. Severino
admit[ing] to firing the gun. But . . . when
[the] Government offered [in its sentencing
memorandum] what they would be able to prove
beyond a reasonable doubt in this case, that
1 Defense counsel did not explicitly frame this as an
objection.
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fact was not mentioned. It wasn't mentioned
because we had previously spoken with [the
prosecutor] about it [but Severino] does not
admit to having stated that.
. . .
[The proffer] admissions were limited to [the
facts] that he had purchased the gun for
$1,600, and that he knew that that firearm had
been welded, but nothing was stated about the
alleged shooting.
. . .
No evidence of corroboration by the police has
been given to us. For example, this interview
was not recorded. Another example, if [it]
was the case[] that Mr. Severino did admit to
[firing the weapon], no paraffin testing to
show that he had gunpowder residue was done.
Also, Your Honor, no report linking these
alleged casings that were found to match the
firearm that Mr. Severino was in possession
of.
Notably, defense counsel did not address the PSR's statement that
Severino admitted to firing the weapon, a fact the district court
explicitly relied on in determining Severino's sentence:
The Court has given weight to the fact that
Mr. Severino admitted to possessing an
automatic firearm knowing that it was illegal
to do so and that for no apparent reason he
fired the weapon without hesitation regardless
of the consequences. That act was
irresponsible and put at risk lives of
innocent [people] who could have been caught
in the path of the bullets.
The district court also considered the sentencing factors
enumerated in 18 U.S.C. § 3553(a), including the "nature and
circumstances" of the offense, along with government statistics
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concerning gun ownership and violent crimes in Puerto Rico, and
the need for deterrence.
Weighing these factors, the district court ultimately
sentenced Severino to 40 months' imprisonment followed by three
years' supervised release. It explained that "a sentence above
the guideline range reflects the seriousness of the offense,
promotes respect for the law, protects the public from further
crimes by Mr. Severino, and addresses the issues of deterrence and
punishment." This timely appeal followed.
III. Analysis
On appeal, Severino raises a variety of claims as to his
sentence. It is unclear from his brief to what extent he is
raising a claim of substantive as well as procedural error;
however, it appears that he argues that his ultimate sentence was
substantively unreasonable as the result of procedural mistakes.
We will first address his arguments regarding the district court's
factfinding -- which are undoubtedly procedural in nature -- before
proceeding to his challenge to the ultimate sentence, which appears
to have both procedural and substantive elements.
A. Procedural Challenge to Factfinding
Severino first argues that his sentence was procedurally
unreasonable because the district court relied on facts that were
not established. Specifically, he claims that the court improperly
relied on the PSR in finding that he admitted to firing the weapon.
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He further contends that his purported admission came during an
unrecorded interview that violated a policy set forth in a
Department of Justice ("DOJ") memorandum.2 We reject his argument
for two reasons.
First, Severino never filed a written objection to
either the original PSR submitted on June 7, 2017, or the amended
PSR filed on June 9, 2017.3 "Generally, a party has 14 days after
receipt of a presentence report within which to object in writing
to, inter alia, 'material information' contained in that report."
United States v. Cortés-Medina, 819 F.3d 566, 569 (1st Cir. 2016)
(citing Fed. R. Crim. P. 32(f)(1)).4 Following that period, if no
2 This argument rests on Severino's belief that HSI agents
violated a DOJ policy creating a "presumption in favor of recording
. . . statements made by individuals in the custody of the FBI,
the DEA, the ATF, and the United States Marshal Service." Press
Release 14-548, Dep't of Justice, Attorney General Holder
Announces Significant Policy Shift Concerning Electronic Recording
of Statements (May 22, 2014), available at
https://www.justice.gov/opa/pr/attorney-general-holder-announces
-significant-policy-shift-concerning-electronic-recording.
3 The differences between the two PSRs are not relevant for
the purpose of resolving this appeal.
4 The District of Puerto Rico’s Local Rule 132(b)(3)(A)
similarly states:
Within fourteen (14) days from disclosure of
the PSR, counsel for the government and
counsel for the defense shall file and deliver
to the probation office, and to each other,
written objections to the facts or guideline
application in the PSR. If counsel have no
objections, each shall so notify the probation
office, and each other, in writing. A party
waives any objection to the PSR by failing to
comply with this rule unless the Court
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objections have been filed, "a PSR bears sufficient indicia of
reliability to permit the district court to rely on it at
sentencing." United States v. Cyr, 337 F.3d 96, 100 (1st Cir.
2003) (quotation marks and citation omitted).
Assuming that his objection has not been waived,5 we
evaluate this procedural claim under the rubric of plain error.
Plain error review "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. Perretta, 804 F.3d 53, 57
(1st Cir. 2015) (citation and quotation marks omitted). "Plain
error review is not appellant-friendly," Cortés-Medina, 819 F.3d
at 569, and "[t]he party asserting plain error bears the burden of
determines that the basis for the objection
was not reasonably available prior to the
deadline.
5 Severino's failure to object to the PSR has potential
implications for the standard of review, as it might be interpreted
as a waiver. "A party waives a right when he intentionally
relinquishes or abandons it." United States v. Rodriguez, 311
F.3d 435, 437 (1st Cir. 2002) (citations omitted). By contrast,
a party forfeits a right when he "fails to make a timely assertion
of [that] right." Id. (citation omitted). While waived issues
cannot be resurrected on appeal, forfeited issues may still be
reviewed, "albeit for plain error." United States v. Gaffney-
Kessell, 772 F.3d 97, 100 (1st Cir. 2014) (citations omitted). In
any event, we need not decide whether this procedural argument was
waived because it fails even under the more lenient forfeiture
standard.
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persuasion," United States v. Pabon, 819 F.3d 26, 33 (1st Cir.
2016) (citation omitted).
Here, Severino fails to even attempt to explain how the
plain error standard has been satisfied. As we have stated before,
"[i]t is not enough merely to mention a possible argument in the
most skeletal way, leaving the court to do counsel's work, create
the ossature for the argument, and put flesh on its bones." United
States v. Zannino, 895 F.2d 1, 17 (1st Cir. 1990). Accordingly,
even applying plain error review, Severino has waived any appellate
argument concerning the procedural reasonableness of his sentence.
See Pabon, 819 F.3d at 33-34 (holding failure to attempt to meet
the four-part burden under plain error review constitutes waiver).6
Second, we note that even if an objection had been
properly made to the PSR, and notwithstanding the likely appellate
waiver, Severino's argument necessarily fails. As we have stated,
"[t]he defendant is free to [timely] challenge any assertions in
the PSR with countervailing evidence or proffers, in which case
the district court is obliged to resolve any genuine and material
6 Severino relies on United States v. Rodríguez-Meléndez, 828
F.3d 35 (1st Cir. 2016) for the proposition that the district court
committed procedural error. In that case, we vacated a 36-month
sentence and remanded the matter for resentencing when the district
court committed erroneous factfinding. See id. at 39-40. However,
that case is inapposite because the district court’s factfinding
in Rodriguez-Melendez directly contradicted the relevant PSR. See
id. at 37. By contrast, here both the original and amended PSR
explicitly stated that Severino admitted to firing the machine
gun.
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dispute on the merits." Cyr, 337 F.3d at 100. If, however, "the
defendant's objections to the PSR are merely rhetorical and
unsupported by countervailing proof, the district court is
entitled to rely on the facts in the PSR." Id. (citation omitted).
At sentencing, Severino provided the district court with
no evidence to substantiate his claims, nor did he propose to
provide any such evidence. Therefore, the district court did not
err in adopting the facts as stated in the PSR. See United States
v. Grant, 114 F.3d 323, 328 (1st Cir. 1997) ("[A]lthough
[defendant] objected to certain facts in the PSR . . . [he] did
not provide the sentencing court with evidence to rebut the factual
assertions [contained therein] . . . . Consequently, the court
was justified in relying on the contested facts.").
B. Challenge to Reasonableness of Sentence
Severino also challenges the substantive reasonableness
of his 40-month sentence, arguing that the 10-month upward variance
was indefensible given his personal characteristics and first-time
offender status. In support, he points to the relatively short
amount of time between his arrest and plea and that he was a first-
time offender. At his sentencing, Severino made no objection to
the length of his sentence. While Severino now frames this claim
of error as substantive, he proceeds to make a procedural argument
criticizing the district court's weighing of the Guidelines
sentencing factors. For analytical purposes only, we will construe
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this argument as a challenge to both the procedural and substantive
reasonableness of Severino's ultimate sentence.
"For procedural challenges, 'we afford de novo review to
the sentencing court's interpretation and application of the
sentencing guidelines, assay the court's factfinding for clear
error, and evaluate its judgment calls for abuse of discretion.'"
United States v. Santa-Otero, 843 F.3d 547, 550 (1st Cir. 2016)
(quoting United States v. Ruiz-Huertas, 792 F.3d 223, 226 (1st
Cir. 2015)).
By contrast, "[i]n reviewing the [substantive]
reasonableness of a sentence outside the Guidelines range,
appellate courts may [] take the degree of variance into account
and consider the extent of a deviation from the Guidelines." Gall
v. United States, 552 U.S. 38, 47 (2007). "Regardless of whether
the sentence imposed is inside or outside the Guidelines range,
the appellate court [] review[s] the sentence under an abuse-of-
discretion standard." Id. at 51. Although "the standard of review
for unpreserved challenges to the substantive reasonableness of a
sentence remains unclear," an appellate court "only reverse[s]
where the sentence is outside of the 'expansive universe of
reasonable sentences.'" United States v. Rondón-García, 886 F.3d
14, 26 (1st Cir. 2018) (quoting United States v. King, 741 F.3d
305, 308 (1st Cir. 2014)).
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Severino's argument fails under either standard of
review. To the extent Severino's challenge is procedural, we find
no fault in the court's evaluation of the Guidelines and required
sentencing considerations. "When a court varies from the
[Guidelines] . . . the factors deemed relevant by the sentencing
court 'must add up to a plausible rationale' for the sentence
imposed and 'must justify a variance of the magnitude in
question.'" United States v. Flores-Machicote, 706 F.3d 16, 21
(1st Cir. 2013) (citation omitted). "[T]hough a district court is
obliged to consider all relevant § 3553(a) factors, it need not do
so mechanically. That is, a district court is not required to
address those factors, one by one, in some sort of rote incantation
when explicating its sentencing decision." Ruiz-Huertas, 792 F.3d
at 226-27 (quotation marks and citation omitted).
In addition, "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. Zapata-Vázquez, 778 F.3d 21, 23
(1st Cir. 2015) (citations omitted). "Community-based
considerations are inextricably intertwined with deterrence . . .
[and] the incidence of particular crimes in the relevant community
appropriately informs and contextualizes the relevant need for
deterrence." Flores-Machicote, 706 F.3d at 23. "After all, a
heightened need for deterrence may well exist in a community where
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violent crime is running rampant." United States v. Narváez-Soto,
773 F.3d 282, 286 (1st Cir. 2014) (citation omitted).
"Nevertheless, '[a] sentencing judge's resort to community-based
characteristics does not relieve him or her of the obligation to
ground sentencing determinations in case-specific factors. It is
possible for a sentencing judge to focus too much on the community
and too little on the individual.'" Santa-Otero, 843 F.3d at
551-52 (citation omitted). "When . . . the district court
explicitly states that it has considered the § 3553(a) factors,
such a statement is entitled to some weight." Ruiz-Huertas, 792
F.3d at 227 (quotation marks, alterations, and citation omitted).
Severino does not offer any evidence to suggest that the
district court improperly or incompletely considered § 3553(a)
factors or his personal circumstances. See Santa-Otero, 843 F.3d
at 552 ("Because the District Court expressly took note of the
case-specific factors of [defendant's] criminal history and the
specific firearm and ammunition [he] possessed, the District Court
sufficiently emphasized the case-specific factors relative to the
community-based characteristics."). The record indicates that the
court did so explicitly, noting Severino's lack of relevant
criminal history, acceptance of responsibility, age, education,
and history of employment. Even if the emphasis on his personal
circumstances was not as apparent as Severino would have preferred,
"brevity is not to be confused with inattention.'" United States
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v. Santiago-Rivera, 744 F.3d 229, 233 (1st Cir. 2014) (quotation
marks and citation omitted).
In addition, Severino appears to take umbrage with the
district court's statement that "the Court of Appeals has
indicated[] this Court must consider Puerto Rico's high firearms
and violent crime rate to impose the sentence in this case." While
the usage of the term "must" was an error, Severino fails to show
how that usage was prejudicial. After all, district courts
regularly take into account "[c]ommunity-based considerations."
E.g., Flores-Machicote, 706 F.3d at 23. The district court,
notwithstanding the usage of the word "must," clearly justified
the weight placed on this factor, noting the high level of violent
crime in Puerto Rico, and importance of "preventing criminal
behavior by the population at large, not just by the defendant
being sentenced." Therefore, the error was harmless.
To the extent Severino's challenge is substantive, with
the foregoing considerations in mind, the district court acted
well within its discretion in imposing a 40-month sentence on
Severino. See Santiago-Rivera, 744 F.3d at 234 ("There is rarely,
if ever, a single correct sentence in any specific case. Instead,
there is almost always a 'range of reasonable sentences' for any
given offense." (citation omitted)).
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IV. Conclusion
For the foregoing reasons, the district court's sentence
is AFFIRMED.
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