United States v. Perez-Crespo , 557 F. App'x 6 ( 2014 )

Not for Publication in West's Federal Reporter
United States Court of Appeals
For the First Circuit
No. 13-1906
UNITED STATES OF AMERICA,
Appellee,
v.
PEDRO J. PÉREZ-CRESPO, a/k/a PIRI,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. José A. Fusté, U.S. District Judge]
Before
Torruella, Selya and Thompson,
Circuit Judges.
José R. Olmo-Rodríguez on brief for appellant.
Rosa Emilia Rodríguez-Vélez, United States Attorney, Nelson
Pérez-Sosa, Assistant United States Attorney, Chief, Appellate
Division, and Francisco A. Besosa-Martínez, Assistant United States
Attorney, on brief for appellee.
June 11, 2014
Per Curiam. After entering into a written plea
agreement, defendant-appellant Pedro J. Pérez-Crespo pleaded guilty
to a charge of conspiring to possess with intent to distribute
controlled substances within 1,000 feet of a public housing
project. See 21 U.S.C. §§ 841(a)(1), 846, 860. At the disposition
hearing, the district court classified the appellant as a career
offender, see USSG §4B1.1, and set his guideline sentencing range
(GSR) at 188-235 months. The court then imposed a mid-range
sentence: 210 months in prison. This timely appeal followed.
The appellant concedes that he meets the definition of a
career offender. He likewise concedes the correctness of the
district court's calculation of the GSR. He nonetheless challenges
his sentence on the ground that it is substantively unreasonable.
The government tries to place a stumbling block at the
threshold. It posits that the appellant's real complaint is that
the district court refused to depart downward from the GSR and that
we lack appellate jurisdiction to review a district court's
discretionary decision not to depart. This argument is misguided.
From and after the Supreme Court's decision in United
States v. Booker, 543 U.S. 220, 245 (2005), review for
reasonableness "encompasses virtually the entire gamut of sentences
imposed under the advisory guidelines, including sentences shaped
by discretionary departure decisions." United States v. Anonymous
Defendant, 629 F.3d 68, 74 (1st Cir. 2010). Thus, notwithstanding
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the government's attempt to recharacterize the appellant's claim of
substantive unreasonableness, we have jurisdiction to hear and
determine that claim.1 See id.When evaluating the substantive reasonableness of a
criminal sentence, appellate review is for abuse of discretion.
See Gall v. United States, 552 U.S. 38, 51 (2007). This is a
deferential standard, see United States v. Martin, 520 F.3d 87, 92
(1st Cir. 2008), which recognizes the sentencing court's superior
coign of vantage.
We have explained that "the linchpin of a reasonable
sentence is a plausible sentencing rationale and a defensible
result." Id. at 96. The sentence imposed in this case — which was
at the mid-point of a properly calculated GSR — passes muster under
this prescription. See United States v. Clogston, 662 F.3d 588,
592-93 (1st Cir. 2011) (emphasizing that "[c]hallenging a sentence
as substantively unreasonable is a burdensome task in any case, and
one that is even more burdensome where . . . the challenged
sentence is within a properly calculated GSR").
The appellant argues that his sentence is unreasonable
because it is based primarily on the career offender
classification, which grossly overrepresents his true culpability.
1
The government also asseverates that a waiver-of-appeal
provision in the plea agreement bars this appeal. Because this
asseveration is problematic and the appeal is easily resolved on
the merits, we bypass the government's waiver argument.
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This argument lacks force. The appellant, through able counsel,
made this overrepresentation argument to the district court. The
court rejected it because the court believed that "a career
offender [designation] is a pretty serious thing." This
battlefield assessment is worthy of deference: on the record before
us, we cannot quarrel either with the wisdom of the court's
statement or with its applicability to the appellant's situation.
In any event, we have independently examined the
appellant's criminal record and find the claim of
overrepresentation unpersuasive. The appellant has no fewer than
five prior convictions for offenses that include charges involving
domestic violence, aggravated assault, and controlled substances.
While a sentencing court, in the exercise of its sound discretion,
might have opted to view this litany of malefactions more
empathetically, the court below was not obliged to do so. And if
the court took the appellant's record at face value — as it was
entitled to do — that record was adequate to ground a sentence near
the mid-point of the GSR.
"There is no one reasonable sentence in any given case
but, rather, a universe of reasonable sentencing outcomes."
Clogston, 662 F.3d at 592 (citing Martin, 520 F.3d at 92). Here,
as in United States v. Santiago-Rivera, 744 F.3d 229, 234 (1st Cir.
2014), "[t]he decisive consideration is that the sentence that the
court chose, though severe, was not outside the wide universe of
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reasonable sentences" that might have been imposed. We need go no
further.
Affirmed.
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