United States v. Velez-Soto , 804 F.3d 75 ( 2015 )

United States Court of Appeals
For the First Circuit
No. 13-1885
UNITED STATES OF AMERICA,
Appellee,
v.
FRANCISCO J. VÉLEZ-SOTO, a/k/a Fresh,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Gustavo A. Gelpí, U.S. District Judge]
Before
Howard, Chief Judge,
Torruella and Lipez, Circuit Judges.
Jean C. LaRocque and Shea and LaRocque, LLP on brief for
appellant.
Rosa Emilia Rodríguez-Velez, United States Attorney, Nelson
Pérez-Sosa, Assistant United States Attorney, Chief, Appellate
Division, and John A. Matthews II, Assistant United States
Attorney, on brief for appellee.
October 14, 2015
LIPEZ, Circuit Judge. This is an appeal from a
sentence following Francisco J. Vélez-Soto's guilty plea in a
multi-defendant drug conspiracy case. While on bail pending
sentencing in his federal case, appellant pled guilty to three
state law convictions: second degree murder and two weapons law
violations. Appellant contends that the district court's decision
to impose a 280-month federal sentence to run concurrently with a
his state sentence was procedurally unsound and substantively
unreasonable. Finding the sentence proper in all respects, we
affirm.
I.
A. Factual Background
Given that this appeal follows a guilty plea, the facts
are derived from the presentence investigation report (PSR), the
change of plea colloquy, and the transcript of the sentencing
hearing. See United States v. Whitlow, 714 F.3d 41, 42 (1st Cir.
2013).
Beginning in 2000, and continuing until the return of the
federal indictment, Vélez-Soto participated in a conspiracy to
distribute controlled substances in the Candelaria, El Carmen, and
Kennedy Public Housing Projects in Puerto Rico. Vélez-Soto served
as a manager and enforcer for the drug trafficking organization.
As a manager, he distributed narcotics to sellers for subsequent
sale and distribution and was responsible for collecting the
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proceeds from drug sales and paying the street sellers. As an
enforcer, he carried and possessed firearms in furtherance of the
drug trafficking activities.
B. Procedural Background
On July 7, 2010, a Puerto Rico federal grand jury
returned a six-count indictment charging Vélez-Soto and 102 co-
conspirators with conspiracy to distribute controlled substances in
violation of 21 U.S.C. §§ 841(a)(1), 846, and 860 (Count One),
among other offenses. Vélez-Soto entered a guilty plea to Count
One pursuant to Federal Rule of Criminal Procedure 11(c)(1)(C).
The plea agreement recommended as appropriate a prison term of 108
to 120 months.
On May 16, 2011, pending his federal sentencing, Vélez-
Soto was charged in Commonwealth court with murder and weapons
violations. He pled guilty to second degree murder and two counts
of weapons law violations. On February 19, 2013, he was sentenced
to 204 months' imprisonment: fifteen years and one day on the
murder charge, to be served consecutively with one-year terms for
each weapons violation.
On March 4, 2013, Vélez-Soto appeared for a pre-
sentencing hearing on the federal drug conspiracy charge. The
district court rejected Vélez-Soto's plea agreement, noting that
Vélez-Soto breached it when he committed second degree murder while
out on bail pending his federal sentencing. The court gave Vélez-
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Soto until March 20, 2013 to withdraw his guilty plea, which he
declined to do.
The district court sentenced Vélez-Soto on June 18, 2013.
Based on a total offense level of 31 and a criminal history
category of III, the district court noted the guideline range of
135 to 168 months.1 The government requested a sentence "on the
lower end" of the 108- to 120-month range specified in the plea
agreement. Defense counsel requested a sentence of 108 months to
run concurrently with his state sentence, and he asked that the
court direct that the sentence be served in a federal facility.
The district court sentenced Vélez-Soto to 280 months imprisonment,
to be served concurrently with the 204-month sentence imposed in
his state criminal case.2
Vélez-Soto filed a timely notice of appeal, asserting
that the district court's sentence was procedurally unsound and
substantively unreasonable.
1
Because the conspiracy took place at or within 1,000 feet of
a housing facility owned by a public housing authority, the
statutory maximum for this drug conspiracy is 80 years based on a
stipulated drug quantity between 3.5 and 5 kilograms of cocaine.
See 21 U.S.C. § 860(a); see also id. § 841(b)(1)(B).
2
Vélez-Soto will thus complete his 204-month state sentence
while simultaneously serving his federal sentence.
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II.
A. Standard of Review
We review federal criminal sentences imposed under the
advisory Guidelines for abuse of discretion. Gall v. United
States, 552 U.S. 38, 51 (2007); United States v. Madera-Ortiz, 637
F.3d 26, 30 (1st Cir. 2011). Within this framework, we review a
district court's factual findings for clear error, and its
interpretation and application of the Guidelines de novo. United
States v. Walker, 665 F.3d 212, 232 (1st Cir. 2011). Typically,
our review of a sentence imposed under the Guidelines involves a
two-step process. "First, we evaluate the procedural soundness of
the sentence; second, we assay its substantive reasonableness."
Madera-Ortiz, 637 F.3d at 30. The "procedural dimension" of
sentencing review includes the correctness of the court's
application of the Guidelines, while "[t]he substantive dimension
focuses on the duration of the sentence in light of the totality of
the circumstances." United States v. Del Valle-Rodríguez, 761 F.3d
171, 176 (1st Cir. 2014). Procedural errors amounting to an abuse
of discretion include "failing to calculate (or improperly
calculating) the Guidelines range, 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 - including an explanation for any
deviation from the Guidelines range." Gall, 552 U.S. at 51. An
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error of law underlying a sentencing court's decision constitutes
an abuse of discretion. See Walker, 665 F.3d at 223 (holding that
"a material error of law is invariably an abuse of discretion").
B. The Procedural Soundness of the Sentence
Vélez-Soto argues that the district court's decision not
to impose a fully concurrent 108- to 120-month sentence, and its
failure to consider the commentary to U.S.S.G. § 5G1.3(c), rendered
its sentence procedurally unsound.
A sentencing court has discretion to impose either a
consecutive or a concurrent sentence when a defendant is subject to
an undischarged state-court term of imprisonment. 18 U.S.C. §
3584(a). Nonetheless, in exercising this discretion, a sentencing
court must consider the factors set forth in 18 U.S.C. § 3553(a),
including any applicable sentencing Guidelines or policy
statements. Id. § 3584(b); United States v. Carrasco-de-Jesús, 589
F.3d 22, 27 (1st Cir. 2009). Although the Guidelines are no longer
mandatory, "'district courts must still give respectful
consideration to the now-advisory Guidelines (and their
accompanying policy statements).'" United States v. Millán-Isaac,
749 F.3d 57, 67 (1st Cir. 2014) (quoting Pepper v. United States,
562 U.S. 476, 501 (2011)).
The applicable version of Guidelines § 5G1.3(b) provides
for a concurrent or partially concurrent sentence when the
defendant is subject to a previously imposed but undischarged term
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of imprisonment that has "resulted from another offense that is
relevant conduct to the instant offense of conviction," if the
relevant conduct offense "was the basis for an increase in the
offense level." U.S.S.G. § 5G1.3(b) (2012). To gain the benefit
of § 5G1.3(b), "a defendant must prove that [he] satisfies each and
every element of the guideline," including that the charge
underpinning the undischarged term of imprisonment was the basis
for an increase in the offense level for the offense of conviction.
Carrasco-de-Jesús, 589 F.3d at 27. Under § 5G1.3(c), a district
court "may impose a sentence concurrently, partially concurrently,
or consecutively" and "[t]he end result need only be 'reasonable.'"
United States v. Vázquez-Alomar, 342 F.3d 1, 5 (1st Cir. 2003)
(quoting United States v. Caraballo, 200 F.3d 20, 28 (1st Cir.
1999)).
Vélez-Soto did not claim that his undischarged state
convictions were relevant conduct during his sentencing hearing,
nor does he so claim on appeal. Moreover, because the district
court accurately held that Vélez-Soto's state sentence for second
degree murder did not involve relevant conduct, and therefore that
§ 5G1.3(b) did not apply, the court was under no obligation to
impose a concurrent sentence. See Carrasco-de-Jesús, 589 F.3d at
27. In declining to impose a 108- to 120-month concurrent
sentence, the district court stated:
I am not going to sentence concurrently [for
108 to 120 months] because I think it's --
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well it's totally unrelated conduct. This is a
drug case, that's a murder case. If I
sentence concurrently [for that number of
months], basically he's getting a freebie for
the murder or for the drugs.
The commentary to § 5G1.3(c) states that in determining
whether to impose a concurrent, partially concurrent, or
consecutive sentence to an undischarged term of imprisonment, the
court "should consider" the following factors "to achieve a
reasonable incremental punishment for the instant offense and avoid
unwarranted disparity":
(i) the factors set forth in 18 U.S.C. § 3584(referencing 18 U.S.C. § 3553(a));
(ii) the type (e.g., determinate,
indeterminate/parolable) and length of the
prior undischarged sentence;
(iii) the time served on the undischarged
sentence and the time likely to be served
before release;
(iv) the fact that the prior undischarged
sentence may have been imposed in state court
rather than federal court, or at a different
time before the same or different federal
court; and
(v) any other circumstance relevant to the
determination of an appropriate sentence for
the instant offense.
U.S.S.G. § 5G1.3 cmt. n.3(A) (2012).
The sentencing transcript reveals that the district court
evaluated the factors enumerated in the commentary to § 5G1.3(c).
The district court noted the type and length of Vélez-Soto's state
sentence,3 the time served on the undischarged state sentence and
3
The court noted that the state sentence was "17 years plus
the three years probationary period."
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the time likely to be served before release,4 and it properly took
into account that Vélez-Soto was convicted at the state level of
second degree murder and firearms violations.
Furthermore, the court explicitly addressed the § 3553(a)
factors, including Vélez-Soto's prior criminal record, the need to
"provide just punishment for the offense,"5 "afford adequate
deterrence,"6 "protect the public from further crimes of the
defendant,"7 and provide the defendant with needed training,
medical care, "or other correctional treatment in the most
effective manner."8 Id. § 3553(a)(2)(A)-(D). A sentencing court
need not "specifically address all of the § 3553(a) factors in its
explanation, nor . . . give each of the factors equal prominence in
its determination." United States v. Zapata, 589 F.3d 475, 487 (1st
Cir. 2009) (internal quotation marks omitted). The district
4
The court stated that "[i]f both sentences are served
consecutively, you know, he starts serving his State sentence once
he's served [the proposed federal sentence of] 108 months, which he
served already two years approximately."
5
The court emphasized the need for Vélez-Soto to serve his
entire state sentence in addition to a federal sentence, so as not
to get a "free bite at the apple" by "serving two sentences for the
price of one."
6
"The court understands that the federal system . . .
will . . . adequately deter him."
7
The court stressed the need to "protect the public from
further crimes of this gentleman."
8
The court stated that the sentence "will promote the best
rehabilitation possible."
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court's treatment of the § 3553(a) factors was adequate. Its
decision to impose a 280-month concurrent sentence was thus
procedurally sound and within its discretion. See Setser v. United
States, 132 S. Ct. 1463, 1468 (2012) (stating that "[j]udges have
long been understood to have discretion to select whether the
sentences they impose will run concurrently or consecutively with
respect to other sentences that they impose, or that have been
imposed in other proceedings, including state proceedings"). In
sum, the record shows no procedural errors in Vélez-Soto's
sentencing.
C. Substantive Reasonableness of the Sentence
Vélez-Soto further argues that a 280-month sentence,
which substantially exceeded the Guidelines range of 135 to 168
months, violates the requirement under § 3553(a) that the sentence
be "sufficient, but not greater than necessary, to comply with the
purposes" of sentencing. 18 U.S.C. § 3553(a). He claims that the
district court imposed a substantively unreasonable sentence when
it refused to sentence him according to the parties' recommended
range of 108 to 120 months, or to vary upwards such that the state
and federal sentences would be coterminous and concurrent, and that
it erred in failing to properly weigh his history and the nature
and circumstances of the offense.
When evaluating the substantive reasonableness of a
sentence that is outside the Guidelines range, we "must give due
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deference to the district court's decision that the § 3553(a)
factors, on a whole, justify the extent of the variance. The fact
that the appellate court might reasonably have concluded that a
different sentence was appropriate is insufficient to justify
reversal of the district court." Gall, 552 U.S. at 51. When a
sentence deviates from the Guidelines, "[t]he court's reasons for
deviation should typically be rooted either in the nature and
circumstances of the offense or the characteristics of the
offender." United States v. Martin, 520 F.3d 87, 91 (1st Cir.
2008). We will uphold a district court's sentence "as long as the
court has provided a plausible explanation, and the overall result
is defensible." United States v. Innarelli, 524 F.3d 286, 292 (1st
Cir. 2008).
As stated above, the district court adequately considered
the § 3553(a) factors and provided a sufficient explanation for its
sentence. The court considered, inter alia, Vélez-Soto's possession
of a weapon in the drug conspiracy, the violation of the terms of
his bail, his prior criminal conduct, and the request for Vélez-
Soto to serve his sentence in a federal facility. If the district
court had imposed a 108-month consecutive sentence, the total
sentence would have been 312 months, the latter 204 months of which
would have been served in a state facility. That within-the-
Guidelines sentence would have been far in excess of the sentence
imposed, and it would have required Vélez-Soto to serve time in a
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state facility. The 280-month concurrent sentence amounts to 76
additional months on the federal conviction and allows Vélez-Soto
to serve the entirety of his sentence in a federal facility,
consistent with his request.
Furthermore, the sentence was based on both the
circumstances of the offense and Vélez-Soto's characteristics. The
court noted that the 280-month concurrent sentence was necessary to
"reflect[] the seriousness of the offense," the federal interest in
such a "big drug conspiracy," and to "adequately punish" Vélez-Soto
who, while on bail, "continued to commit criminal conduct." The
court's emphasis on the nature of the crime over the mitigating
factors cited by Vélez-Soto "was a choice of emphasis that is not
a basis for a founded claim of sentencing error." Zapata, 589 F.3d
at 488 (internal quotation marks omitted). The court provided a
plausible explanation for its sentence, grounded in the record, and
accordingly, it was substantively reasonable.
III.
The district court did not abuse its discretion when it
sentenced Vélez-Soto to 280 months' imprisonment on his federal
drug charge, to be served concurrently with his state sentence.
Because the sentence was procedurally sound and substantively
reasonable, we affirm the judgment.
So ordered.
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