United States v. Davila-Gonzalez , 31 Cont. Cas. Fed. 72 ( 2010 )

United States Court of Appeals
For the First Circuit
No. 08-2575
UNITED STATES OF AMERICA,
Appellee,
v.
NOEL DÁVILA-GONZÁLEZ,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. José Antonio Fusté, U.S. District Judge]
Before
Selya, Boudin and Howard, Circuit Judges.
Joseph C. Laws, Jr., Federal Public Defender, and Vivianne M.
Marrero, Assistant Federal Public Defender, on brief for appellant.
Rosa Emilia Rodriguez-Vélez, United States Attorney, Nelson
Pérez-Sosa, Chief, Appellate Division, and Thomas F. Klumper,
Assistant United States Attorney, on brief for appellee.
February 10, 2010
SELYA, Circuit Judge. On August 13, 2008, defendant-
appellant Noel Dávila-González entered a straight plea of guilty to
charges of (i) aiding and abetting the laundering of money derived
from unlawful activities and (ii) conspiracy to commit money
laundering. See 18 U.S.C. §§ 2, 1956(a)(1)(B), 1956(h). The
district court sentenced him to serve a 78-month incarcerative
term. The appellant now challenges his sentence, citing a number
of supposed procedural errors. Discerning no merit in the
appellant's claims, we affirm.
When a sentencing appeal follows a guilty plea, "we glean
the relevant facts from the change-of-plea colloquy, the
unchallenged portions of the presentence investigation report (PSI
Report), and the record of the disposition hearing." United States
v. Vargas, 560 F.3d 45, 47 (1st Cir. 2009). In following this
praxis, we rehearse only those facts that are needed to put the
claims of error into context.
On October 15, 2004, the appellant called a known member
of a drug cartel to arrange for the delivery of "two bundles."
Unfortunately for the appellant, the person to whom he reached out
doubled in brass as a confidential informant for the Federal Bureau
of Investigation (FBI). Over the course of several calls, most of
which were recorded, the appellant and the informant agreed to meet
and consummate the transaction.
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This meeting took place at a Burger King restaurant in
Puerto Rico on October 18, 2004. At that time the appellant
effected delivery of the "two bundles" to the informant.
Subsequent analysis revealed that the "two bundles" contained
$204,440 in United States currency.
Rather than springing the trap then and there, the FBI
continued its investigation for nearly three years. On May 3,
2007, a federal grand jury sitting in the District of Puerto Rico
returned a six-count indictment against the appellant and others.
The authorities arrested the appellant in Tampa, Florida, on May 9,
2008. Following his rendition to Puerto Rico, the appellant
entered a plea of guilty to the three counts against him (one of
which was dismissed at sentencing).
The district court convened the disposition hearing on
November 13, 2008. The court deemed applicable a six-level
sentencing enhancement after finding that "the defendant knew or
believed that any of the laundered funds were the proceeds of, or
were intended to promote . . . an offense involving the
manufacture, importation, or distribution of a controlled substance
or a listed chemical." USSG §2S1.1(b)(1)(B)(i). It also ruled
that, for sentencing purposes, it would hold the appellant
responsible for only the cash contained in the two bundles
($204,440), even though the conspiracy as a whole had laundered a
much greater sum (approximately $1,839,208).
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The court then proceeded to deny the appellant's request
for a downward role-in-the-offense adjustment. See USSG §3B1.2(b)
(authorizing a two-level downward adjustment if the defendant
played a minor role in the offense). Making a series of other
calculations, the court settled upon a total offense level of 25
and a criminal history category of III. In this venue, the
appellant does not challenge any of these rulings but, rather,
accepts the district court's calculation of the guideline
sentencing range (GSR): 70-87 months.
During the sentencing proceedings, defense counsel
briefly mentioned that the appellant was a former heroin addict
who, since committing the offense of conviction, had rehabilitated
himself. This information led to the following exchange:
The Court: So what are you suggesting?
Defense Counsel: I'm suggesting that the Court
depart downward because this . . .
The Court: Absolutely not. On the basis of
what?
To this question, defense counsel explicated, in some detail, that
during the years intervening between the offense conduct and the
arrest, the appellant had checked himself into a rehabilitation
facility, moved to Florida, forsook his criminal ways, and obtained
gainful employment. Counsel argued that these developments
suggested that a below-the-range sentence would be an appropriate
outcome. The district court disagreed, stating:
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I'm going to deny the role request that you're
making. I am going to deny the departure
request you're going to make, and I'm going to
deny any other sentence than the advisory
guideline proposed here.
There is nothing on this record under
3553(a) that moves me, moves me to consider
any other sentence than the sentence proposed
as advisory by the guidelines for cases like
this.
In the end, the court imposed a mid-range sentence of 78
months in prison. At the conclusion of the hearing, it asked
whether either side had "[a]nything else?" The only rejoinder was
from defense counsel, who requested that the sentence be served in
"the Tampa area."
In this appeal, the appellant argues that the sentencing
court committed reversible error by (i) presuming the
reasonableness of the GSR; (ii) neglecting sufficiently to explain
the sentence imposed; and (iii) failing to consider mitigating
factors favoring a below-the-range sentence. We approach these
claims of error mindful that, in the wake of the Supreme Court's
landmark decision in United States v. Booker, 543 U.S. 220, 245
(2005), we have encouraged the district courts to follow a
specifically delineated roadmap when sentencing under the now-
advisory federal sentencing guidelines:
[A] sentencing court ordinarily should begin
by calculating the applicable guideline
sentencing range; then determine whether or
not any departures are in order; then mull the
factors delineated in 18 U.S.C. § 3553(a) as
well as any other relevant considerations;
and, finally, determine what sentence, whether
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within, above, or below the guideline
sentencing range, appears appropriate.
United States v. Pelletier, 469 F.3d 194, 203 (1st Cir. 2006)
(citing United States v. Jiménez-Beltre, 440 F.3d 514, 518-19 (1st
Cir. 2006) (en banc)).
The court below did not follow this roadmap. That
omission complicates appellate review, but in this instance it does
not frustrate that review. After all, we have treated this roadmap
as helpful, but not obligatory. Thus, a sentencing court may leave
the roadmap to one side and proceed in some other sequence as long
as the findings are made and all the requisite factors are
addressed. See, e.g., United States v. Pacheco, 489 F.3d 40, 44
(1st Cir. 2007) (explaining that district court may combine steps
or vary the order). This is such a case.
In reviewing a sentence, we seek to ensure that it is
both procedurally sound and substantively reasonable. United
States v. Martin, 520 F.3d 87, 92 (1st Cir. 2008). Here,
substantive reasonableness is not in issue; the appellant assigns
only procedural error. That taxonomy includes "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." United States v. Stone, 575 F.3d 83, 89 (1st Cir. 2009)
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(quoting United States v. Innarelli, 524 F.3d 286, 292 (1st Cir.
2008)).
The appellant's claims of error, like all claims of
procedural unreasonableness in sentencing, are reviewed, generally,
for abuse of discretion. United States v. Carrasco-De-Jesús, 589
F.3d 22, 26-27 (1st Cir. 2009); Martin, 520 F.3d at 92. Yet, when
a defendant fails to preserve an objection below, the plain error
standard supplants the customary standard of review. See, e.g.,
United States v. Almenas, 553 F.3d 27, 36 (1st Cir. 2009); United
States v. Mangual-Garcia, 505 F.3d 1, 15 (1st Cir. 2007).
In the case at hand, the appellant did not interpose an
objection as to any of the procedures that he now seeks to
challenge. This default is particularly glaring in view of the
district court's specific inquiry at the conclusion of the
disposition hearing. Consequently, plain error review obtains.
"Review for plain error 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. Duarte, 246 F.3d 56, 60 (1st Cir.
2001).
Against this backdrop we proceed to address the
appellant's claims of error one by one.
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The first issue deals with the weight that the district
court attached to the GSR. The touchstone for our analysis is the
decision in Gall v. United States, 552 U.S. 38 (2007). There, the
Supreme Court admonished that even though the federal sentencing
guidelines "should be the starting point and the initial benchmark"
for constructing a sentence, the sentencing court "may not presume
that the Guidelines range is reasonable." Id. at 49-50.
Citing the Court's follow-on decision in Nelson v. United
States, 129 S. Ct. 890 (2009) (per curiam), the appellant labors to
convince us that the court below transgressed this tenet. In
particular, he assails the court's statement that it was "going to
deny any other sentence than the advisory guideline proposed" and
its summary rejection of his entreaty to depart downward. In the
appellant's view, these actions demonstrate the sentencing court's
embrace of the very presumption of reasonableness that Gall
forbids.
We find this argument unpersuasive. To begin, Nelson
does not assist the appellant's cause. There, the district court
unequivocally declared at sentencing that "the Guidelines are
considered presumptively reasonable." Id. at 891. That was a
patent violation of the tenet articulated in Gall.
The case at bar is at a considerable remove. Here, the
sentencing court made no such declaration. Although it declined to
accept the appellant's proposal for a non-guideline sentence (24
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months), it made that ruling only after hearing lengthy arguments
as to whether and why the GSR should hold sway. The court
concluded that there was "nothing on th[e] record" that prompted it
"to consider any other sentence than the sentence proposed as
advisory by the guidelines."
There is a world of difference between according a
presumption of reasonableness to the GSR — a practice that Gall
forbids — and finding that the GSR, in a particular case,
represents an appropriate sentencing range. This is a case of the
latter stripe.
Read as a whole, the sentencing transcript makes manifest
not only the court's awareness that the GSR was merely an initial
benchmark, but also its conclusion that the circumstances of the
case made it appropriate to hew to that benchmark in fashioning the
appellant's sentence. That was not error. See, e.g., United
States v. Smith, 531 F.3d 109, 112 (1st Cir. 2008) (finding no
presumption of reasonableness where the district court "did not
feel bound to impose a sentence within the GSR").
The appellant's next contention is that the district
court failed adequately to explain its rationale for the sentence
it imposed. In this regard, the appellant invokes a statute
providing that, in a federal criminal case, a sentencing court must
"state in open court the reasons for its imposition of the
particular sentence." 18 U.S.C. § 3553(c).
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We have recognized, however, that this directive must be
read in a practical, common-sense way. The statutory directive
"does not mean that the sentencing court's explanation need be
precise to the point of pedantry." United States v. Turbides-
Leonardo, 468 F.3d 34, 40 (1st Cir. 2006). In all events, "with
respect to a sentencing court's duty of explanation, brevity is not
to be confused with inattention." Id. at 41-42. This is
especially true where, as here, a court prescribes a sentence that
falls within the GSR. See id. at 41; see also Rita v. United
States, 551 U.S. 338, 356-57 (2007) ("[W]hen a judge decides simply
to apply the Guidelines to a particular case, doing so will not
necessarily require lengthy explanation."). Where, as here, the
GSR has been correctly calculated and spans less than 24 months
from bottom to top, a district court "arguably is not required to
cite any reasons for imposing a within-the-range sentence."
Turbides-Leonardo, 468 F.3d at 41 (emphasis in original).
These principles are dispositive here. Although it is
true that the district court did not explicitly address each of the
appellant's arguments for a below-the-range sentence, the court was
not required to offer that level of elucidation. See id. at 40-41.
A sentencing court's process of ratiocination "can often be
inferred by comparing what was argued by the parties or contained
in the pre-sentence report with what the judge did." Jiménez-
Beltre, 440 F.3d at 519; see also Rita, 551 U.S. at 358 (holding
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that where the sentencing court imposed a within-the-range sentence
and the record indicates that the court heard the defendant's
arguments and considered the supporting evidence, it may be
inferred that "[t]he judge simply found the[] circumstances
insufficient to warrant a sentence lower than the Guidelines
range").
So it is here: we may infer from the protracted arguments
and colloquy preceding the imposition of sentence that the court
below considered all the arguments and evidence before settling
upon an appropriate sentence. The court's clear pronouncement that
there was nothing in the record that warranted unusually favorable
treatment bolsters this inference.
As a subset of this argument, the appellant suggests that
18 U.S.C. § 3553(c)(1) required more specificity. That suggestion,
however, is grounded in a misreading of the statute.1 This
provision applies only when the span of the GSR, measured from the
low end to the high end, is greater than 24 months. See United
States v. Arango, 508 F.3d 34, 44 (1st Cir. 2007); United States v.
Cirilo-Muñoz, 504 F.3d 106, 131 (1st Cir. 2007) (per curiam).
Here, the sentencing range begins at 70 months and tops off at 87
months. Simple arithmetic demonstrates that the spread between the
1
18 U.S.C. § 3553(c) provides in pertinent part that if the
GSR "exceeds 24 months," the court "shall state in open court . . .
the reason for imposing a sentence at a particular point within the
range."
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low and high ends is too modest to trigger the statutory
requirement.
The appellant's final claim of error is that the district
court failed to consider mitigating factors favoring a below-the-
range sentence.2 Specifically, he complains that he was less
culpable than his confederates, and that he undertook
rehabilitative efforts of his own volition. These plaints lack
force.
Merely raising potentially mitigating factors does not
guarantee a lesser sentence. "A criminal defendant is entitled to
a weighing of the section 3553(a) factors that are relevant to
[his] case, not to a particular result." Carrasco-De-Jesús, 589
F.3d at 29.
Here, the sentencing court heard about a myriad of
circumstances, including the appellant's relative culpability and
efforts at rehabilitation. The court determined that those
circumstances did not warrant the degree of leniency that the
appellant sought. Although the court did not specifically
reference the factors that the appellant now highlights, the
sentencing transcript, read as a whole, evinces a sufficient
weighing of the section 3553(a) factors. See United States v.
2
The government urges us to deem this claim of error waived
by reason of the cursory treatment given to it in the appellant's
brief. See United States v. Zannino, 895 F.2d 1, 17 (1st Cir.
1990). Because the claim is easily dispatched on the merits, we
bypass the waiver question.
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Quiñones-Medina, 553 F.3d 19, 26-27 (1st Cir. 2009); see also
Turbides-Leonardo, 468 F.3d at 41-42. And the fact that the court
stated that it had considered all the section 3553(a) factors is
entitled to some weight. See United States v. Morales-Machuca, 546
F.3d 13, 26 (1st Cir. 2008).
Pointing to one of his codefendants, the appellant makes
a related claim of sentencing disparity.3 That claim is hopeless.
A district court's consideration of sentencing disparity
"aims primarily at the minimization of disparities among defendants
nationally." Martin, 520 F.3d at 94; see also United States v.
Rodríguez-Lozada, 558 F.3d 29, 45 (1st Cir. 2009). While avoidance
of disparities among codefendants may be considered, a party "is
not entitled to a lighter sentence merely because his co-defendants
received lighter sentences." United States v. Wallace, 573 F.3d
82, 97 (1st Cir. 2009) (quoting United States v. Marceau, 554 F.3d
24, 33 (1st Cir. 2009)).
The sockdolager is that the record contains no evidence
that the appellant and any codefendant were fair congeners. Among
other things, the codefendant pleaded guilty in accordance with a
negotiated plea agreement and, therefore, was not in that respect
situated similarly to the appellant. See Rodríguez-Lozada, 558
F.3d at 45.
3
Codefendant Oneil Concepción-Zapata was sentenced on June
16, 2008, pursuant to a negotiated plea agreement, to 46 months in
prison.
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We need go no further. For the reasons elucidated above,
we conclude that the sentencing in this case was free from error,
plain or otherwise.
Affirmed.
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