United States v. Perez-Figueroa , 658 F. App'x 588 ( 2016 )

Not for Publication in West's Federal Reporter
United States Court of Appeals
For the First Circuit
No. 15-1423
UNITED STATES,
Appellee,
v.
EDUARDO PÉREZ-FIGUEROA,
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,
Stahl and Barron, Circuit Judges.
Rafael F. Castro Lang on brief for appellant.
Rosa Emilia Rodríguez-Vélez, United States Attorney, Nelson
Pérez-Sosa, Assistant United States Attorney, Chief, Appellate
Division, and Julia M. Meconiates, Assistant United States
Attorney, on brief for appellee.
August 9, 2016
BARRON, Circuit Judge. Eduardo Pérez-Figueroa appeals
the sentence he received after he pleaded guilty to conspiracy to
commit money laundering and drug trafficking. We affirm.
I.
Pérez pleaded guilty to conspiracy to possess with
intent to distribute cocaine, in violation of 21 U.S.C. §§ 846,
841(a)(1), 841(b)(1)(A)(ii), and conspiracy to commit money
laundering, in violation of 18 U.S.C. § 1956(h). The drug
trafficking conspiracy involved the transportation of cocaine from
Saint Maarten, Netherlands Antilles, to both Puerto Rico and the
continental United States. The money laundering conspiracy
involved the concealment of drug trafficking proceeds as
legitimate income derived from winning the Puerto Rico lottery.
Pérez entered the pleas on January 14, 2014, in
connection with a plea agreement. The agreement recommended a
sentencing range, based on a calculation of the applicable range
under the version of the Guidelines then in effect, of 168 to 210
months' imprisonment (assuming a criminal history category of I
for Pérez).
At the sentencing hearing, the District Court calculated
a sentencing range, under the version of the Guidelines then in
effect, of 135 to 168 months' imprisonment. In doing so, the
District Court applied "Amendment 782" to the Guidelines, which
became effective on November 1, 2014 and which "reduced by two
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levels the base offense level for many drug offenses." United
States v. Vaughn, 806 F.3d 640, 643 (1st Cir. 2015). Pérez
requested a sentence of 84 months' imprisonment, which was below
both the amended Guidelines range and the minimum sentence
prescribed by statute. This request was based, in part, on a
motion that Pérez had filed with the District Court prior to
sentencing, concerning his pre-sentence detention.
The District Court ultimately denied Pérez's request and
sentenced him to 156 months in prison -- a sentence 12 months below
the top end of the applicable Guidelines range. The District Court
sentenced Pérez to a term of supervised release of seven years on
the drug trafficking count, above the five-year term prescribed by
the Guidelines, see 21 U.S.C. § 841(b)(1)(A); U.S.S.G. § 5D1.2 &
cmt. 6, and to a term of supervised release of three years on the
money laundering count, to be served concurrently.
Although there was a waiver-of-appeal provision in
Pérez's plea agreement, the government concedes that this
provision was not triggered because the District Court did not
sentence Pérez in accordance with the terms of the plea agreement.
We thus turn to Pérez's challenges.
II.
We start with two challenges that Pérez makes that
pertain to U.S.S.G. §5K1.1 ("5K1.1"). Neither has merit.
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Pérez first contends that the District Court erred in
concluding that it had no 5K1.1 motion before it when it imposed
the sentence. The government contends that, due to cursory
briefing, Pérez has waived any contention that the District Court
erred in this regard. But even if we assume that there was no
waiver, Pérez's claim fails.
Our review of Pérez's contention is only for plain
error,1 see United States v. Ríos-Hernández, 645 F.3d 456, 462 (1st
Cir. 2011), and Pérez's contention can only succeed if the motion
that Pérez filed constituted a "motion of the government" within
the meaning of 5K1.1. But Pérez provides no authority for the
strange proposition that his own motion constitutes a "motion of
the government" under 5K1.1. See Wade v. United States, 504 U.S.
181, 185-86 (1992) (describing the decision to file a 5K1.1 motion
as one committed to the "prosecutor's discretion" (emphasis
added)); see also United States v. Ayarza, 874 F.2d 647, 653 (9th
Cir. 1989) (noting, in holding that 5K1.1 does not violate a
defendant's constitutional right to due process, that "it is
rational for Congress to lodge some sentencing discretion in the
prosecutor, the only individual who is" in a position to make the
necessary assessment under the relevant provision (emphases
1Pérez's arguments below were based on what he perceived to
be the government's failure to follow through on its promise to
file a 5K1.1 motion, and not on the District Court's failure to
treat his motion as a bona fide 5K1.1 motion.
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added)). Accordingly, this challenge clearly fails. United States
v. Morosco, 822 F.3d 1, 21 (1st Cir. 2016) (finding no plain error
where defendant cited no authority and this Court knew of no
authority that supported defendant's argument).
Pérez's other argument regarding 5K1.1 is no stronger.
He contends that the District Court erred in rejecting his claim
at sentencing that the prosecutor's decision not to file a 5K1.1
motion was based on an "unconstitutional motive" in violation of
Wade, 504 U.S. at 185-86.2 Because Pérez has preserved this claim,
we review for abuse of discretion, according de novo review to
questions of law and clear error review to questions of fact. See
United States v. Mulero-Algarín, 535 F.3d 34, 39 (1st Cir. 2008).
The prosecutor explained the reasons for the decision
not to file a 5K1.1 motion, which the court largely accepted.
Given that Pérez does not challenge the court's findings on appeal,
and given that those findings provide an adequate basis for the
prosecutor's decision, Pérez has not shown that the prosecutor
acted improperly in declining to file a 5K1.1 motion. See Mulero-
Algarín, 535 F.3d at 40 (concluding that the government could
2 Pérez also contends that the decision was improper because
it was "not rationally related to any legitimate Government[al]
end." Wade, 504 U.S. at 186. We have made clear, however, that
"[a] motive not rationally related to any legitimate governmental
purpose comes within the compass of th[e] prohibition [against
grounding the decision not to file a 5K1.1 motion in an
unconstitutional motive]." United States v. Mulero-Algarín, 535
F.3d 34, 39 (1st Cir. 2008).
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withhold a similar motion in view of the defendant's initial
"minimization" of his role in the offense, even though the
defendant later "trie[d] to correct his retinency" (citing United
States v. Licona-López, 163 F.3d 1040, 1044 (8th Cir. 1998) ("[T]he
government does not act irrationally in refusing to file" such a
motion for a defendant who has been untruthful with the
authorities.))); United States v. Davis, 247 F.3d 322, 323, 328
(1st Cir. 2001) (affirming District Court's conclusion that no
Wade violation occurred where defendant complied with the
requirements in some respects but "was admittedly reticent" in
others). We thus cannot say that the District Court abused its
discretion in denying Pérez's Wade-based challenge.
III.
Pérez also argues that his sentence is unreasonable,
both procedurally and substantively. We address each contention
in turn.
A.
When reviewing a sentence for procedural reasonableness,
"we must 'ensure that the district court committed no significant
procedural error, such as failing to calculate (or improperly
calculating) the Guidelines range, treating the Guidelines as
mandatory, failing to consider the [18 U.S.C.] § 3553(a) factors,
selecting a sentence based on clearly erroneous facts, or failing
to adequately explain the chosen sentence--including an
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explanation for any deviation from the Guidelines range.'" United
States v. Ayala-Vazquez, 751 F.3d 1, 29 (1st Cir. 2014) (quoting
Gall v. United States, 552 U.S. 38, 51 (2007)). "We make use of
a 'multi-faceted' abuse of discretion standard to make these
determinations," id. (quoting United States v. Leahy, 668 F.3d 18,
21 (1st Cir. 2012)). We find no error under that standard.
Pérez first contends that the District Court, when
evaluating the impact of Amendment 782 to the Guidelines on Pérez's
sentence, see Vaughn, 806 F.3d at 643 (providing that Amendment
782 "reduced by two levels the base offense level for many drug
offenses"), erred by not considering the factors outlined in
U.S.S.G. §1B1.10 cmt. 1(B). But those factors apply only when the
defendant did not receive the benefit of an amendment to the
Guidelines because the defendant was sentenced before the
amendment became effective. See U.S.S.G. §1B1.10(a)(1). Because
Pérez was sentenced after Amendment 782 became effective, Pérez's
invocation of U.S.S.G. §1B1.10 is misplaced.
Pérez also contends that the District Court erred
procedurally by failing to consider certain allegedly mitigating
factors that he identifies. But that is not so.
The District Court reasonably found that Pérez's lack of
prior drug use actually cut against Pérez. The District Court
explained that Pérez was not "selling drugs because he need[ed]
the money to pay for drug addiction" but was instead "doing it for
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financial profit," even though he was "well aware of the damages
that it causes to society."
The District Court also considered Perez's conduct while
detained, but, after making relevant findings, did not give him as
much credit as requested. As Pérez challenges none of these
findings on appeal, he has provided us with no basis for concluding
that the District Court did not adequately consider his conduct
while detained.3
The District Court also considered the other factors
that Pérez points to on appeal as warranting a lower sentence in
his case -- namely, Pérez's (in his view, minimal) criminal history
and prior employment -- and determined that they did not, when
weighed against the aggravating factors in this case, warrant a
sentence lower than 156 months.4 Thus, Pérez's procedural
challenge fails.
3 Pérez does contend that the District Court made a "clearly
erroneous factual determination." But the determination to which
Pérez refers, which relates to Pérez's own smuggling of contraband
into the detention facility, is not one upon which the District
Court relied at sentencing.
4 Pérez notes that the District Court did not explicitly
address that Pérez "did not encounter any disciplinary actions"
during his pretrial detention. But the District Court was not
required to make express reference to every aspect of Pérez's
background that could have bearing on Pérez's sentence. See United
States v. Suárez-González, 760 F.3d 96, 102 (1st Cir. 2014)
("Bearing in mind that a sentencing court need not explicitly
address every consideration that enters into its decisional
calculus, we are satisfied that the court below sufficiently
weighed the section 3553(a) factors." (citation omitted)).
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B.
When reviewing a sentence for substantive
reasonableness, we consider whether the sentence is supported by
a "plausible sentencing rationale" and reflects a "defensible
result." Ayala-Vazquez, 751 F.3d at 32 (quoting United States v.
Pol-Flores, 644 F.3d 1, 4-5 (1st Cir. 2011)). Our review is for
abuse of discretion. Id.
The District Court did give less weight to the mitigating
factors to which Pérez points than he contends was warranted. But
the District Court's decision to weigh these factors as it did was
a reasonable one, given the aggravating factors involved in this
case, such as the scope and complexity of the money laundering and
drug trafficking conspiracies. See United States v. Colón-
Rodríguez, 696 F.3d 102, 108 (1st Cir. 2012). We thus conclude
that the within-Guidelines sentence of 156 months that the District
Court imposed is indeed supported by "a plausible sentencing
rationale" and yielded "a defensible result." United States v.
Martin, 520 F.3d 87, 96 (1st Cir. 2008). Accordingly, the sentence
is not unreasonable and the District Court did not abuse its
discretion in imposing it.
IV.
In Pérez's last challenge, he contends that the District
Court plainly erred by not giving him advance notice that it was
going to impose a term of supervised release on the drug
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trafficking count that was two years above the term prescribed by
the Guidelines. See 21 U.S.C. § 841(b)(1)(A); U.S.S.G. §5D1.2 &
cmt. 6. Such notice must be given, however, only when the District
Court imposes what is known as an upward departure, rather than
merely an upward variance. See United States v. Guzmán-Fernández,
___ F.3d ___, 2016 WL 3082191, at *4 n.5 (1st Cir. June 1, 2016)
(indicating that advance notice is required for a departure but
not a variance); see also United States v. Oquendo-García, 783
F.3d 54, 56 (1st Cir. 2015) (providing that a departure "refers to
specific deviations imposed in accordance with a statute or a
specific guidelines provision," while a variance "exist[s] as a
result of the advisory nature of the guidelines"). And here, Pérez
has not shown -- at least with the clarity required on plain error
review -- that the District Court departed rather than varied.
See Morosco, 822 F.3d at 21. Accordingly, this challenge fails as
well.
V.
For the reasons given, we affirm.
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