United States v. Perez-Perez , 626 F. App'x 8 ( 2015 )

Not for Publication in West's Federal Reporter
United States Court of Appeals
For the First Circuit
No. 14-1992
UNITED STATES OF AMERICA,
Appellee,
v.
EUGENIO PEREZ-PEREZ,
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
Lynch, Thompson, and Kayatta,
Circuit Judges.
Elizabeth Caddick, on brief for appellant.
Nelson Pérez-Sosa, Assistant United States Attorney, Chief,
Appellate Division, Carmen M. Márquez-Marín, Assistant United
States Attorney, and Rosa Emilia Rodríguez-Vélez, United States
Attorney, on brief for appellee.
September 16, 2015
Per curiam. Eugenio Perez-Perez pled guilty in
September 2013 to being a felon in possession of a firearm, in
violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2), and was
sentenced, by upward variance, to 60 months imprisonment. He now
challenges his sentence. Because the sentence the district court
imposed was procedurally and substantively reasonable, we affirm.
I.
On June 12, 2013, agents of the Puerto Rico Police
Department responded to a 911 call from a woman who said she had
been threatened with a firearm. The victim said she was at home
when Perez-Perez began calling to her from the street, asking her
to come out of the house so they could talk. When she refused, he
pointed a firearm at her. The victim pointed out Perez-Perez's
vehicle to the agents when they arrived. The agents pursued and
detained Perez-Perez, and brought him to the police precinct.
During the car inventory, the agents discovered a revolver inside
a fanny pack under the driver's seat of the car. Perez-Perez was
then placed under arrest. The investigation later revealed that
Perez-Perez was on supervised release, having previously been
convicted under federal law of conspiracy to distribute narcotics
and carrying a weapon in relation to a drug trafficking crime.
Perez-Perez had been placed in low-intensity supervision in April
2013.
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On September 16, 2013, Perez-Perez pled guilty to one
count of being a felon in possession of a firearm. The plea
agreement provided for a recommended sentence in the middle of the
applicable guideline range. At sentencing, the parties agreed to
33 months, based on a guideline range of 30 to 37 months. The
district court rejected the recommendation and sentenced Perez-
Perez to 60 months.1
II.
Perez-Perez argues that his 60-month sentence is
procedurally and substantively unreasonable. Generally, we review
the reasonableness of a criminal sentence for abuse of discretion.
United States v. Millán-Isaac, 749 F.3d 57, 66 (1st Cir. 2014).
But when the defendant raises no procedural objection at
sentencing, our review is for plain error. Id. When assessing
the reasonableness of a sentence, we consider whether the sentence
was both procedurally and substantively reasonable. United States
v. Hernández-Maldonado, 793 F.3d 223, 227 (1st Cir. 2015). His
sentence meets both requirements.
A sentence is procedurally reasonable if "the district
court committed no significant procedural error, such as failing
to calculate (or improperly calculating) the Guidelines range,
1 The parties correctly argue that the waiver of appeal
provision in the plea agreement does not, accordingly, apply. See
United States v. Ocasio-Cancel, 727 F.3d 85, 89 (1st Cir. 2013).
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treating the Guidelines as mandatory, failing to consider the
§ 3553(a) factors, selecting a sentence based on clearly erroneous
facts, or failing to adequately explain the chosen sentence."
United States v. Martin, 520 F.3d 87, 92 (1st Cir. 2008) (quoting
Gall v. United States, 552 U.S. 38, 51 (2007)).
Perez-Perez contends that the district court committed
a procedural error by considering his "socio-economic level," a
status which, under the guidelines, is "not relevant in the
determination of a sentence." See U.S.S.G. § 5H1.10. As Perez-
Perez concedes, because he failed to raise this objection at
sentencing, we review for plain error.
Here, the district court did not reference his socio-
economic status, but rather his educational and employment
background. Perez-Perez misguidedly asserts that "socio-economic
level . . . includes his education and training." But the
guidelines themselves treat employment records and education as
distinct from socio-economic status. Compare U.S.S.G. §§ 5H1.2,
and 5H1.5, with U.S.S.G. § 5H1.10. The court made these references
during a narrative of Perez-Perez's personal history, required to
be considered under 18 U.S.C. § 3553(a)(1). He can show no
prejudice.
Perez-Perez also challenges the substantive
reasonableness of his sentence. "We generally respect the district
court's sentence as long as the court has provided a plausible
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explanation, and the overall result is defensible." United States
v. Innarelli, 524 F.3d 286, 292 (1st Cir. 2008). "When the
sentence is outside the [guidelines sentencing range], the
appellate court is obliged to consider the extent of the variance,
but even in that posture it 'must give 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).
Here, the guidelines range was 30 to 37 months. The
district court instead imposed a sentence of 60 months. This was
double the minimum guideline recommendation, but half of the
maximum 10-year sentence permitted under 18 U.S.C. § 924(a)(2).
The district court expressly considered the § 3553(a) factors,
noting in particular Perez-Perez's prior conviction for conspiracy
to distribute narcotics and carrying a weapon in relation to a
drug trafficking crime, and the short period of time between his
placement in low-intensity supervision and the commission of the
instant offense. The district court stated it was departing from
the guidelines in order to impose a sentence "reflective of the
seriousness of the offense and to promote deterrence."
Nonetheless, Perez-Perez argues that the district court
"gave no articulable reasons, specific to this case, for the upward
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variance."2 He argues that since "the Guidelines already accounted
for his criminal history and the fact that he committed this crime
while on supervised release," the district court was required --
and failed -- to give articulable reasons for imposing the variant
sentence.3
Generally, "[w]e 'allow a good deal of leeway' in
reviewing the adequacy of a district court's explanation." United
States v. Ofray-Campos, 534 F.3d 1, 38–39 (1st Cir. 2008) (quoting
United States v. Gilman, 478 F.3d 440, 446 (1st Cir. 2007)). "When
a factor is already included in the calculation of the guidelines
sentencing range, a judge who wishes to rely on that same factor
to impose a sentence above or below the range must articulate
specifically the reasons that this particular defendant's
situation is different from the ordinary situation covered by the
guidelines calculation." United States v. Zapete-Garcia, 447 F.3d
57, 60 (1st Cir. 2006). But while "a sentencing court's obligation
to explain a variance requires the court to offer a plausible and
coherent rationale . . . it does not require the court to be
2 We note that "[t]he lack of an adequate explanation can
be characterized as either a procedural error or a challenge to
the substantive reasonableness of the sentence." United States v.
Crespo-Ríos, 787 F.3d 34, 37 n.3 (1st Cir. 2015).
3 Because Perez-Perez's claim fails under either abuse of
discretion or plain error review, we treat his request for
reconsideration during sentencing as an objection.
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precise to the point of pedantry." United States v. Del Valle-
Rodríguez, 761 F.3d 171, 177 (1st Cir. 2014).
The district court here explained:
I am aware what the guidelines provide and
what the guidelines have considered. I think
that the guidelines do not provide the
accurate punishment and do not provide for
accurate assessment of this type of offenses
[sic] when they happened under this type of
circumstance and under the scenario that I
have.
The court adequately described what it found to be the unique
circumstances of this case, stating that it was considering whether
Perez-Perez had "any adjustments, rehabilitation, learning process
and how that is shown." The district court stressed the fact that
Perez-Perez not only committed the instant offense while on
supervised release, but that he committed it within a few months
of being placed in low-intensity supervision:
I can tell you one thing, your client has the
intelligence, he has no addiction problem,
nothing that will basically compel him to
engage in continued illegal pattern [sic] of
conduct as he has done in blatant disregard of
the opportunities that were given to him under
supervised release. . . . We're talking here
this defendant as soon as he was placed on low
supervision by the probation office engaged in
new conduct.
The district court expressed that the timing of Perez-Perez's
offense demonstrated "disregard for the law and judicial system"
and a serious failure to learn from his prior mistakes:
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[N]o true rehabilitation has been achieved and
actually the defendant has not understood what
the need to avoid recidivism is. And actually
it is quite troubling that this individual,
cognisant [sic] of the [sic] what the law is
and having experienced what the loss of
freedom is and having the guidance of the
Probation Officer, is once again back here in
court.
This explanation was more than adequate. Perez-Perez
posed a particular danger of recidivism, thereby justifying an
upward variant sentence.
III.
For the reasons set forth above, we affirm the sentence.
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