United States v. Vega-Monserrate ( 2022 )

Not for Publication in West's Federal Reporter
United States Court of Appeals
For the First Circuit
No.18-2241
UNITED STATES OF AMERICA,
Appellee,
v.
MANUEL VEGA-MONSERRATE,
Defendant-Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Francisco A. Besosa, U.S. District Judge]
Before
Kayatta, Howard, and Gelpí,
Circuit Judges.
José Luis Novas-Debién for appellant.
Julia M. Meconiates, Assistant United States Attorney, with
whom W. Stephen Muldrow, United States Attorney, and Mariana E.
Bauzá-Almonte, Assistant United States Attorney, were on brief,
for appellee.
December 5, 2022
KAYATTA, Circuit Judge. Manuel Vega-Monserrate appeals
from his 81-month sentence for drug and firearm charges, arguing
that his sentence was both procedurally and substantively
unreasonable. For the foregoing reasons, we affirm the district
court.
Vega-Monserrate pled guilty to two counts in the
District Court for the District of Puerto Rico: the first for
possession, with the intent to distribute, of marijuana in
violation of 21 U.S.C. § 841(a)(1), (b)(1)(c); and the second for
possession of a firearm in furtherance of a drug trafficking crime,
in violation of 18 U.S.C. § 924(c)(1)(A). Relevant to this appeal
is the sentence for the drug count.
In the plea agreement, the parties proposed a guideline
sentencing range for the drug count of zero to six months based on
the drug quantity that Vega-Monserrate admitted to possessing with
the intent to distribute. Subsequently, the probation office
issued a presentence report in which it calculated a guideline
sentencing range of twelve to eighteen months. In calculating
this higher range, the probation office took into account
additional drugs found in the apartment in which Vega-Monserrate
was arrested. See U.S.S.G. § 1B1.3; United States v. McDonald,
804 F.3d 497, 502 (1st Cir. 2015). Many of these drugs were
mentioned in the affidavit filed with the initial criminal
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complaint; the presentence report also included a quantity of
powder cocaine that was not mentioned in the initial affidavit.
Vega-Monserrate did not offer any objection to the
calculations in the presentence report. To the contrary, in his
sentencing memorandum he asked the district court to consider the
presentence report, along with the sentencing factors under 18
U.S.C. § 3553(a) and personal background factors. The memorandum
went on to ask for a sentence based on the parties' agreed-upon
range set forth in the plea agreement. At sentencing, Vega-
Monserrate again offered no challenges to the attribution of drugs
or the calculation of the sentencing range made by probation.
The district court decided to reject the parties'
proposed sentences. It instead sentenced Vega-Monserrate to a
within-guidelines sentence of fifteen months, smack in the middle
of the range calculated by the probation office. Vega-Monserrate
then asked for reconsideration, arguing that more weight should be
given to the plea agreement, even though it was not binding. He
also challenged -- for the first time -- the fact that the
probation office attributed to him (as relevant conduct) drugs
beyond those that he admitted to possessing in his plea agreement.
The district court denied reconsideration.
Now on appeal, Vega-Monserrate advances yet another
challenge to the calculation of the drug quantity in the
presentence report, describing the calculation as "incongruous."
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By that he means that some of the cocaine included in the
presentence report's calculation of drug quantity should not have
been included because it was not mentioned in the affidavit upon
which the criminal complaint was based. Vega-Monserrate contends
that this incongruity rendered the calculation of the guideline
sentencing range unreliable, and the sentence both procedurally
and substantively flawed.
Whether Vega-Monserrate waived his present argument by
not objecting to the presentence report, see, e.g., United States
v. Turbides-Leonardo, 468 F.3d 34, 38 (1st Cir. 2006), by not
objecting at sentencing to the inclusion of the specific drugs he
now challenges, see, e.g., United States v. Lilly, 13 F.3d 15, 17–
18 (1st Cir. 1994), or by failing to develop an argument that the
district court's decision constituted plain error, see, e.g.,
United States v. Pabon, 819 F.3d 26, 33 (1st Cir. 2016), we need
not decide. Even if we were to consider the belated challenge and
conclude that inclusion of some of the cocaine was error (a finding
we do not make), the government points out that subtracting those
drugs does not alter the guideline sentencing range at all. Vega-
Monserrate offers no challenge to that calculation. So any error
-- if there was error -- was harmless. Finally, even on abuse-
of-discretion review, Vega-Monserrate offers no basis for finding
his within-guideline sentence substantively flawed.
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For the foregoing reasons, the judgment of the district
court is affirmed.
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