United States v. Flores-Machicote , 706 F.3d 16 ( 2013 )

United States Court of Appeals
For the First Circuit
No. 11-2243
UNITED STATES OF AMERICA,
Appellee,
v.
VICTOR FLORES-MACHICOTE,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. José A. Fusté, U.S. District Judge]
Before
Lynch, Chief Judge,
Souter,* Associate Justice,
and Selya, Circuit Judge.
Hector L. Ramos-Vega, Assistant Federal Public Defender,
Supervisor, Appeals Division, with whom Hector E. Guzman, Jr.,
Federal Public Defender, and Patricia A. Garrity, Assistant Federal
Public Defender, were on brief, for appellant.
Nelson Pérez-Sosa, Assistant United States Attorney, Chief,
Appellate Division, with whom Rosa Emilia Rodriguez-Velez, United
States Attorney, and Julia M. Meconiates, Assistant United States
Attorney, were on brief, for appellee.
January 23, 2013
______
* Hon. David H. Souter, Associate Justice (Ret.) of the Supreme
Court of the United States, sitting by designation.
SELYA, Circuit Judge. After defendant-appellant Victor
Flores-Machicote entered a guilty plea, the district court
sentenced him to five years in prison — a sentence well above the
top of the applicable guideline sentencing range (GSR). The
defendant appeals, asserting that the district court did not make
an individualized assessment of the relevant sentencing factors
but, rather, relied on impermissible considerations (including the
perceived shortcomings of the local courts and the epidemic of
violent street crime that has plagued Puerto Rico in recent times).
After careful consideration, we reject the defendant's assertions
and affirm the sentence.
The background facts are uncomplicated. A federal grand
jury sitting in the District of Puerto Rico indicted the defendant
on a single count of possessing a firearm as a convicted felon.
See 18 U.S.C. §§ 922(g)(1), 924(a)(2). The charge carries a
maximum term of imprisonment of ten years. See id. § 924(a)(2).
The defendant pleaded guilty, and the probation department prepared
a presentence investigation report (the PSI Report) that
recommended a GSR of 33 - 41 months.
At the disposition hearing, the parties — pursuant to a
nonbinding plea agreement — jointly recommended a 33-month
sentence. The district court abjured this joint recommendation,
saying that such a sentence would be "irresponsible." The court
instead imposed a five-year incarcerative term.
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This timely appeal ensued. In it, the defendant does not
contest the guidelines calculations contained in the PSI Report.
Nevertheless, he challenges his sentence as both procedurally
flawed and substantively unreasonable. Furthermore, he seeks to be
resentenced before a different judge.
We review criminal sentences imposed under the advisory
guidelines regime for abuse of discretion. See Gall v. United
States, 552 U.S. 38, 51 (2007); United States v. Martin, 520 F.3d
87, 92 (1st Cir. 2008). Within this rubric, we assay the district
court's factfinding for clear error and afford de novo
consideration to its interpretation and application of the
sentencing guidelines. See United States v. Walker, 665 F.3d 212,
232 (1st Cir. 2011).
The defendant's core contention is that the district
judge failed to make an individualized assessment of the relevant
sentencing factors but, rather, relied mainly on impermissible
considerations. In support, the defendant draws our attention to
certain statements made by the judge. For the most part, these
statements track two themes. The first theme is composed of the
judge's references to matters such as the perceived shortcomings of
the local criminal justice system and the need to compensate for
those shortcomings. The second theme is composed of the judge's
references to Puerto Rico's murder rate and other negative societal
factors. The defendant asseverates that the judge's espousal of
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these themes resulted in a failure to treat him as an individual
and fostered unwarranted sentencing disparity. These bevues, in
turn, led directly to the imposition of a higher than reasonable
sentence.
In the sentencing context, we evaluate claims of
unreasonableness in light of the totality of the circumstances.
Gall, 552 U.S. at 51. This path typically involves a two-step
pavane. First, we inquire into the existence of procedural errors
"such as failing to calculate (or improperly calculating) the
[GSR], 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 explanation for any deviation from
the Guidelines range." Id. Once we are assured that the sentence
is not infected by procedural error, we then proceed to evaluate
its substantive reasonableness. Id.
Appellate review of federal criminal sentences is
characterized by a frank recognition of the substantial discretion
vested in a sentencing court. Although the advisory guidelines are
"the starting point and the initial benchmark," id. at 49, a
sentencing judge may draw upon his familiarity with a case, weigh
the factors enumerated in 18 U.S.C. § 3553(a), and custom-tailor an
appropriate sentence, see Kimbrough v. United States, 552 U.S. 85,
109 (2007). It follows that a "sentencing court may not
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mechanically assume that the GSR frames the boundaries of a
reasonable sentence in every case." Martin, 520 F.3d at 91.
Rather, the court must take a flexible, case-by-case approach: once
the GSR is properly calculated, "sentencing becomes a judgment
call" involving an intricate array of factors. Id. at 92.
Consequently, punishment outside the GSR may be warranted in a
particular case "to serve the objectives of sentencing."
Kimbrough, 552 U.S. at 91.
When a court varies from the GSR, its reasons for doing
so "should typically be rooted either in the nature and
circumstances of the offense or the characteristics of the
offender." Martin, 520 F.3d at 91. In such a situation, the
factors deemed relevant by the sentencing court "must add up to a
plausible rationale" for the sentence imposed and "must justify a
variance of the magnitude in question." Id.
Against this backdrop, we turn to the defendant's
assignments of error. We begin with the argument that the district
judge, in fashioning the defendant's sentence, improperly
considered shortcomings in Puerto Rico's local justice system —
including its past treatment of the defendant.
By statute, a criminal defendant's "history and
characteristics" are among the considerations that a court ought to
take into account at sentencing. 18 U.S.C. § 3553(a)(1). As part
of this inquiry, a sentencing judge may consider whether a
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defendant's criminal history score substantially underrepresents
the gravity of his past conduct. United States v. Lozada-Aponte,
689 F.3d 791, 792 (1st Cir. 2012); Walker, 665 F.3d at 233-34; see
USSG §4A1.3(a)(1). A record of past arrests or dismissed charges
may indicate "a pattern of unlawful behavior even in the absence of
any convictions." Lozada-Aponte, 689 F.3d at 792 (quoting United
States v. Zapete-Garcia, 447 F.3d 57, 60 (1st Cir. 2006)) (internal
quotation marks omitted); see United States v. Gallardo-Ortiz, 666
F.3d 808, 814-15 (1st Cir. 2012). Logic dictates that a sentencing
court may similarly consider whether, in a series of past
convictions, the punishment appears to fit the crime. If the court
concludes that an asymmetry exists which results in a substantial
underestimation of the defendant's criminal history, it may vary
the sentence upward to reflect past leniency.1 See United States
v. Moore, 239 F. App'x 509, 512 (11th Cir. 2007) (per curiam); see
also USSG §4A1.3, comment. (backg'd.).
It is true that, in the case at hand, the sentencing
judge commented disapprovingly about what he perceived to be the
habitual leniency of the local courts. Seen in a vacuum, this
perceived systemic shortcoming is not, in and of itself, a relevant
1
Our decision in United States v. Santiago-Rivera, 594 F.3d
82 (1st Cir. 2010), is not to the contrary. There, we held only
that a district judge may not "select[] a sentence for the sole
purpose of controlling the running of an unrelated local sentence."
Id. at 86. The defendant in this case does not claim that the
district judge attempted to control the running of an unrelated
local sentence.
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sentencing factor. Importantly, however, the judge did not stop
there: he went to considerable lengths to walk through the
defendant's prior interactions with the law. The judge explained,
in some detail, why he believed that the outcome of these
interactions underrepresented the seriousness of the defendant's
past criminal conduct. Specifically, he noted that the defendant's
felony conviction for simple possession of heroin and cocaine had
been reduced from a charge of possession with intent to distribute;
three other arrests for controlled substance violations had
resulted in no punishment at all; and a prior conviction for
illegal appropriation of a vehicle had resulted in only a six-month
suspended sentence. In light of the conduct in which the defendant
had engaged and how he fared before the local courts, we think that
the district judge had some basis for referring to the earlier
sentences as "slap[s] on the wrist."2 We also think that the judge
reasonably could have concluded that one of the defendant's past
arrests for distribution of controlled substances likely "[fell]
through the cracks" when the local court found no probable cause to
proceed with the underlying charge. Having reached these
conclusions, it was within the district judge's discretion to find
that the defendant's criminal history score did not adequately
2
This was relevant because, the district judge observed, "had
some Judge in the past been stronger with [the defendant] at the
beginning, perhaps he would not be here today."
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represent either the seriousness of his past criminal behavior or
the likelihood of his recidivism.
We add, moreover, that the district judge's focus on the
defendant's criminal history belies the claim that the judge did
not consider the defendant's case. That focus unmistakably shows
that the judge gave individualized attention to the defendant's
situation. See Gall, 552 U.S. at 50, 52.
The defendant's next argument is that the district judge
considered Puerto Rico's escalating murder rate and other local
criminal trends and that this consideration was improper. The
factual premise upon which this argument rests is solid; the record
is pellucid that the judge commented repeatedly upon these points.
Some examples follow.
• "What do you think that this gun that [the
defendant] had illegally was to be used for? Was
it to go to church and pray with or was it to
kill people? What do you think these guns are
for?"
• "When you have a society like Puerto Rican
society, with over 800 murders — we are reaching
900 already — where there are shootouts in the
streets every day, killings car to car, where
killings and beheadings are taking place in this
island, I cannot look at an individual like this
and not consider the social problem we have in
the streets that's creating an ambiance where you
cannot live in peace as a citizen."
• " . . . 84 percent of all murders in Puerto Rico
occur with the use of firearms."
• "I think Puerto Rico [shouldn't] tolerate one
more gun."
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• "It's an embarrassment. I feel embarrassed to
think we have the highest murder statistics in
the whole United States."
• "We read it in the paper every day. People get
killed in the middle of the street, shootings
from car to car, all kinds of horrible, gun-
related crimes happening. . . . [S]tatistics
depict a picture of Puerto Rico that pretty soon
people are not going to even want to come here to
visit as tourists."
Along somewhat the same lines, the district judge characterized the
defendant's possession of a high-caliber weapon with a large-
capacity magazine as "part of the problem" and declared "[t]hat's
why we leave in the morning and we don't know whether we're going
to come back alive in the afternoon."
Even though the judge's comments contain some unnecessary
rhetorical flourishes, the defendant paints with too broad a brush
in claiming that they went beyond the pale. After all, a
sentencing judge may consider community-based and geographic
factors. See Lozada-Aponte, 689 F.3d at 793 (noting in dictum that
sentencing judge's discussion of "incidence of crime in Puerto
Rico" was a "permissible [sentencing] consideration[]"); United
States v. Politano, 522 F.3d 69, 74 (1st Cir. 2008) (allowing
sentencing court "to take into account all of the circumstances
under which [the defendant] committed the offense, including the
particular community in which the offense arose"); see also United
States v. Cavera, 550 F.3d 180, 184 (2d Cir. 2008) (en banc)
(affirming imposition of upward variance on ground that GSR "failed
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to take into account the need to punish more severely those who
illegally transport guns into areas like New York City"). Within
this taxonomy, it is permissible for a sentencing court to consider
the incidence and trend lines of particular types of crime in the
affected community. See United States v. Landry, 631 F.3d 597, 607
(1st Cir. 2011).
This makes good sense. Deterrence is widely recognized
as an important factor in the sentencing calculus. See, e.g., 18
U.S.C. § 3553(a)(2)(B). Community-based considerations are
inextricably intertwined with deterrence, which aims to "prevent[]
criminal behavior by the population at large and, therefore,
incorporates some consideration of persons beyond the defendant."
Politano, 522 F.3d at 74. Put another way, the incidence of
particular crimes in the relevant community appropriately informs
and contextualizes the relevant need for deterrence.
To illustrate, if a community is relatively free of
violent crime, a sentencing judge reasonably may deem a violent
crime aberrational and, thus, see no need for a heightened level of
deterrence. If, however, violent crime is running rampant, the
judge reasonably may conclude that the need for deterrence is great
— and this may translate into a stiffer sentence.
The defendant tacitly acknowledges this framework, but
insists that the district judge gave undue weight to the need for
deterrence. This plaint overlooks, however, that the section
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3553(a) factors must be assessed in case-specific terms. There is
no pat formula dictating how these factors interrelate. A
sentencing court has broad discretion to assay them and need not
afford equal weight to each factor in a given case. See United
States v. Dávila-González, 595 F.3d 42, 49 (1st Cir. 2010); United
States v. Dixon, 449 F.3d 194, 205 (1st Cir. 2006). In this
instance, we believe that the assignment of appreciable weight to
the need for deterrence was adequately explained and, in the end,
a reasonable choice.
The judge discussed the need to promote respect for the
law, explaining that Puerto Rico is "a jurisdiction where violent
crime and gun related crime [are] so prevalent that it gets
. . . embarrassing." In acknowledging the need "to afford adequate
deterrence to criminal conduct," the judge stated:
The word has to spread that this Court is
going to be extremely harsh with defendants
who conduct and carry out gun-related crimes.
Recently there was an announcement by the
Federal government that there are — they have
reached into a stipulation with the local
government whereby they are going to start
filing all the gun cases in this Court.
Simple reason for that, local courts are
incapable of managing them. And that's
exactly what's going on.
Sentencing judges are not automatons, and a judge is entitled to
view certain types of crime as particularly heinous. See, e.g.,
Walker, 665 F.3d at 233. Reviewing the sentencing record as a
whole, we find that it was within the discretion of the court below
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to place special emphasis on the deterrence factor and to explain
that emphasis in the context of local trends.
This is not to say that a sentencing court's emphasis on
factors that are not specifically tied to either the offender or
the offense of conviction — say, the perceived shortcomings of
local courts or the incidence of particular crimes in a given
locale — may not go too far. A sentencing judge's resort to
community-based characteristics does not relieve him or her of the
obligation to ground sentencing determinations in case-specific
factors. See Politano, 522 F.3d at 74. It is possible for a
sentencing judge to focus too much on the community and too little
on the individual and, thus, impose a sentence that cannot
withstand the test of procedural reasonableness.
Here, however, the sentencing judge did not cross this
line. He directed individualized attention to the defendant's
case, explicitly discussing the section 3553(a) factors as they
related to the defendant. He addressed the nature and
circumstances of the particular offense, its seriousness, and the
need to provide condign punishment. He also paid particular heed
both to the fact that the defendant's weapon was "a nine
millimeter, semi-automatic pistol with a high capacity magazine,"
and to the defendant's likely recidivism. While the judge may have
lingered longer than necessary on community characteristics, the
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claim that he did not give individualized attention to the
sentencing determination is unfounded.
The defendant's claim of procedural unreasonableness has
one further dimension. He asserts that his sentence reflects the
judge's failure to avoid unwarranted sentencing disparity. See 18
U.S.C. § 3553(a)(6). To begin, this argument was not advanced in
the district court. It is, therefore, forfeited, and our review is
for plain error. United States v. Matos, 328 F.3d 34, 43 (1st Cir.
2003). In all events, we see no error, plain or otherwise.
This assertion is premised on an ad hoc statistical
analysis, through which the defendant strives to convince us that
the sentencing judge routinely imposes uniquely harsh sentences.
We are not persuaded.
Defense counsel examined 25 cases prosecuted in the
District of Puerto Rico in 2010-2011. Based on this examination,
the defendant suggests that his above-the-range sentence is a
product of the sentencing judge's biases rather than permissible
sentencing criteria.
Statistical evidence that fails to satisfy minimum
standards of reliability proves nothing. Cf. Rathbun v. Autozone,
Inc., 361 F.3d 62, 79 (1st Cir. 2004) (explaining, in disparate
treatment context, that statistical evidence must "cross a
threshold of dependability"). So it is here. In the sampled
cases, the defendants were convicted of a variety of weapons
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charges. The sample size is unhelpfully small, the analytic
methodology is quixotic, and the cases examined are not fair
congeners. The defendants within the cohort assembled by defense
counsel faced diverse charges, had varying offense levels,
exhibited differing offense characteristics, and had dissimilar
criminal histories. Any disparities in sentencing outcomes may
rationally be attributed to, say, differences in criminal history,
the presence or absence of cooperation, or a myriad of other
factors. See, e.g., United States v. Saez, 444 F.3d 15, 18 (1st
Cir. 2006); United States v. Washington, 187 F. App'x 3, 5 (1st
Cir. 2006) (per curiam). The defendant's statistical proffer
accounts for none of these factors.
Comparing apples to oranges is not a process calculated
to lead to a well-reasoned result. Because its foundation is
porous, the defendant's claim of unwarranted sentencing disparity
fails.
Having determined that the claims of procedural error are
untenable, we are ready for the second step of the pavane: the
defendant's complaint that his five-year sentence is substantively
unreasonable.
In any given case, there is "a range of reasonable
sentences." Martin, 520 F.3d at 92. A sentence is not
substantively unreasonable merely because the reviewing court would
have sentenced the defendant differently. Id. "[T]he linchpin of
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a reasonable sentence is a plausible sentencing rationale and a
defensible result." Id. at 96.
Here, the district judge's sentencing calculus centered
on the seriousness of the defendant's criminal conduct, the
defendant's past history and likelihood of recidivism, and the need
for deterrence. This constituted a plausible rationale (albeit not
one to the defendant's liking). The lens of our inquiry narrows,
therefore, to the length of the sentence imposed.
In this regard, the defendant laments the fact that his
sentence is well above the top of the GSR. Where, as here, the
district court imposes a sentence outside the GSR, a reviewing
court must consider the extent of the variance. See Gall, 552 U.S.
at 51. But even a substantial variance does not translate, ipso
facto, into a finding that the sentence is substantively
unreasonable. See Gallardo-Ortiz, 666 F.3d at 811. Everything
depends on context.
In this case, the upward variance is admittedly steep.
Nevertheless, the offense conduct involved the possession of an
extremely dangerous weapon, previously stolen in a home invasion.
The defendant's criminal history is not insubstantial, and the
prospect of recidivism is real. He has had the benefit of
fortuitous procedural outcomes and gentle dispositions in past
interactions with the legal system, but he apparently learned no
lessons. Under these circumstances, we cannot say that a five-year
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sentence — one half of the statutory maximum for the offense of
conviction — is substantively unreasonable.
We need go no further.3 For the reasons elucidated
above, we uphold the defendant's sentence.
Affirmed.
3
Because we have rejected the defendant's appeal on the
merits, we need not consider his prayer that he be resentenced
before a different judge.
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