United States v. Pedroza-Orengo ( 2016 )

United States Court of Appeals
For the First Circuit
No. 15-1247
UNITED STATES OF AMERICA,
Appellee,
v.
LUIS E. PEDROZA-ORENGO,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. José Antonio Fusté, U.S. District Judge]
Before
Lynch, Kayatta, and Barron,
Circuit Judges.
Eleonora C. Marranzini, Research and Writing Specialist, Eric
Alexander Vos, Federal Public Defender, and Vivianne M. Marrero,
Assistant Federal Public Defender, Supervisor, Appeals Section, on
brief for appellant.
Nelson Pérez-Sosa, Assistant United States Attorney, Chief,
Appellate Division, and Rosa Emilia Rodríguez-Vélez, United States
Attorney, on brief for appellee.
April 1, 2016
KAYATTA, Circuit Judge. After pleading guilty to
unlawful firearm possession, Luis Pedroza-Orengo ("Pedroza") was
sentenced to a 60-month term of imprisonment. Pedroza
unsuccessfully urged the district court to reconsider, and he now
appeals his sentence as procedurally and substantively
unreasonable. Finding that the district court did not abuse its
broad sentencing discretion, we affirm.
I. Background1
Around 4:20 AM on April 20, 2014, Puerto Rico Police
Department agents conducting surveillance in an area of San Juan
saw a group of people, including Pedroza, exiting a bar in the
midst of an argument. Pedroza was carrying a firearm, which he
pointed in the direction of bystanders. The agents called for
backup and, while they waited, they observed Pedroza slam his
firearm on the roof of a car, get inside the car, and prepare to
leave the scene. Before Pedroza could depart, backup arrived and
the agents stopped and searched the car. The search turned up a
Glock pistol loaded with fifteen rounds of ammunition, as well as
an additional high-capacity magazine loaded with twenty-one rounds
of ammunition.
1 Because Pedroza pled guilty, we draw our recitation of the
facts from the change of plea colloquy and the unchallenged
portions of the Presentence Investigation Report. See United
States v. Maguire, 752 F.3d 1, 3 (1st Cir. 2014).
- 2 -
A grand jury charged Pedroza with one count of being a
felon in possession of a firearm in violation of 18 U.S.C.
§ 922(g)(1).2 Pedroza pled guilty pursuant to a plea agreement.
Under the agreement, the parties agreed to recommend that the
district court sentence Pedroza to the low end of the applicable
United States Sentencing Guidelines ("Guidelines") range. At the
same time, the agreement made clear that ultimately "the sentence
[would] be left entirely to the sound discretion of the Court."
The district court accepted Pedroza's guilty plea and
ordered the preparation of a Presentence Investigation Report
("PSR"). The PSR determined that Pedroza fell into Criminal
History Category III, which, taken with Pedroza's total adjusted
offense level of 17,3 corresponded to a Guidelines sentencing range
of 30–37 months' imprisonment. The PSR also noted that a
psychological evaluation conducted when Pedroza was eight years
old revealed a verbal IQ of 83 and a performance IQ of 67 and
indicated "borderline intellectual functioning" accompanied by
"specific learning difficulties."
2
Pedroza had previously been convicted for illegal possession
of a machine gun under 18 U.S.C. § 922(o). At the time of the
instant offense, Pedroza was on supervised release for this prior
conviction.
3 Pedroza's base offense level was 20, see USSG
§ 2K2.1(a)(4)(B), but this figure was reduced by three levels to
account for Pedroza's acceptance of responsibility, see id.
§ 3E1.1.
- 3 -
In preparation for sentencing, the district court also
received a 15-page neuropsychological evaluation prepared by a
licensed clinical neuropsychologist. The evaluation placed
Pedroza's total IQ at 60, and it placed Pedroza's global
intellectual functioning in the "[m]ild intellectually disabled
range." The report further noted Pedroza's "chronic" difficulties
with "[i]mpulsive behavior," as well as his impaired "ability to
self-reflect, learn from mistakes, develop appropriate goals, and
adapt to the demands of his environment." The report concluded
that these characteristics contributed to Pedroza's "poor
judgment" and inadequate "behavioral control" and to the
commission of the instant offense. The report did not state that
Pedroza failed to comprehend that his offense conduct was wrong,
or that Pedroza was compelled in any way to engage in such conduct.
In keeping with the plea agreement, both parties
recommended that the district court impose a low-end Guidelines
sentence of 30 months. During a lengthy colloquy at the sentencing
hearing, Pedroza's counsel emphasized Pedroza's mental condition
as justification for the recommended sentence. The district court
agreed "that [Pedroza] has an issue" but found that his mental
condition "work[ed] in a sense against society" because "[a]n
individual with that kind of situation has less acumen to make
decisions, correct decisions regarding firearms and firearms use"
and so poses "a bigger danger than an individual who has an IQ of
- 4 -
125 with an illegal gun in his hand." Thus rejecting Pedroza's
argument that the evidence of Pedroza's mental condition called
for a shorter sentence than Pedroza might otherwise receive, the
district court turned to the factors that it regarded as
determinative. Citing the light sentence Pedroza received for his
prior firearms conviction, the dangerousness of Pedroza's offense
conduct, and the high incidence of gun-related crime in Puerto
Rico, the district court found "no way [Pedroza was] going to walk
away . . . with a [G]uideline[s] sentence" and sentenced Pedroza
to an upwardly variant 60-month term of imprisonment and three
years of supervised release.
Pedroza moved for reconsideration, and the district
court denied his motion. Pedroza now appeals,4 contending that
the district court abused its discretion in imposing his sentence.
II. Analysis
A. Legal Standards
Appellate review of a criminal sentence proceeds in two
steps. We first "ensure that the district court committed no
significant procedural error." Gall v. United States, 552 U.S.
38, 51 (2007). If we find no procedural error, we "then consider
4 Both parties agree that because Pedroza was not sentenced
in accordance with the parties' recommendations, the waiver of
appeal rights in his plea agreement does not bar this appeal. See
United States v. Fernández-Cabrera, 625 F.3d 48, 51 (1st Cir.
2010).
- 5 -
the substantive reasonableness of the sentence imposed." Id. Both
inquiries proceed under the deferential abuse of discretion
standard.5 Id.
B. Procedural Reasonableness
Pedroza makes three claims of procedural error. We
address each in turn.
1. Explanation of the Sentence
Pedroza claims that the district court failed to justify
its choice to impose an upwardly variant 60-month sentence.
"[F]ailing to adequately explain the chosen sentence--including an
explanation for any deviation from the Guidelines range"--is a
"significant procedural error." Gall, 552 U.S. at 51. Where, as
here, the court "decides that an outside-Guidelines sentence is
warranted, [it] must consider the extent of the deviation and
ensure that the justification is sufficiently compelling to
support the degree of the variance." Id. at 50. But although
"the court ordinarily should identify the main factors upon which
5Where a defendant raises no objection below, we typically
review a sentence for plain error only. United States v. Reyes-
Rivera, 812 F.3d 79, 85 (1st Cir. 2016). Although Pedroza claims
that he objected to his sentence, the sentencing transcript reveals
no objection. If Pedroza is referring to his motion for
reconsideration, such after-the-fact motions are insufficient to
evade plain-error review. See United States v. Almonte-Reyes, No.
13-1934, 2016 WL 669381, at *2 n.4 (1st Cir. Feb. 18, 2016).
Nonetheless, we decline in our discretion to apply a plain-error
standard here because the government has failed to request it.
See id.
- 6 -
it relies, its statement need not be either lengthy or detailed."
United States v. Turbides-Leonardo, 468 F.3d 34, 40 (1st Cir.
2006).
Here, the district court explained its decision to
deviate from the Guidelines range of 30–37 months. The district
court described Pedroza's offense conduct in detail, emphasizing
the fact that Pedroza had "pointed [his] firearm in the direction
of bystanders," the fact that Pedroza's Glock pistol was "the most
easily convertible gun to automatic mode," and the fact that
Pedroza had acted in "[u]ncontrollable, bold fashion in front of
police officers." Moreover, the district court highlighted the
fact that Pedroza had committed the instant offense within a year
of his release from incarceration for a prior firearms offense--
an offense for which Pedroza had received an unrealized
"opportunity" for rehabilitation through a "totally lower end
[G]uideline[s]" sentence.
The district court also took into account the unique
proliferation of gun crimes in Puerto Rico. Given that "the
incidence of particular crimes in the relevant community
appropriately informs and contextualizes the relevant need for
deterrence," we have recognized "the incidence and trend lines of
particular types of crime in the affected community" as relevant
considerations in sentencing. United States v. Flores-Machicote,
706 F.3d 16, 23 (1st Cir. 2013). Pedroza points to the district
- 7 -
court's statement that Puerto Rico "[doesn't] have the typical
heartland cases . . . that justify" Guidelines sentences to suggest
that the district court relied exclusively on community-based
considerations, rather than "case-specific factors," id. at 24, to
justify its variant sentence.6 But, as discussed above, the
sentencing colloquy included extensive discussion of the offense
conduct and of Pedroza's criminal history. And even when
discussing community-based considerations, the district court
linked Puerto Rico's problem with gun violence to "individuals
like [Pedroza] with guns of this nature." (Emphases supplied.)
In sum, "the claim that [the district court] did not give
individualized attention to the sentencing determination is
unfounded." Id.
In a slight twist, Pedroza contends that even if the
district court did rely on individualized considerations in
sentencing him, it relied on factors that had "already [been]
included in the calculation of the [G]uidelines sentencing range"
without "articulat[ing] specifically the reasons that [Pedroza's]
situation is different from the ordinary situation covered by the
6Pedroza also contends that the district court erred by
referencing the incidence of gun crime in other countries. Even
assuming that such references were improper, however, there is no
indication that they were material to the district court's
sentencing determination; rather, the record reveals them to have
been nothing more than "unnecessary rhetorical flourishes."
Flores-Machicote, 706 F.3d at 22.
- 8 -
[G]uidelines calculation." United States v. Zapete-Garcia, 447
F.3d 57, 60 (1st Cir. 2006). Again, however, the court
specifically addressed the particular facts of Pedroza's actual
offense that distinguished it from a generic instance of unlawful
possession: namely, Pedroza's dangerous brandishing of a firearm
in a public location, the make of Pedroza's gun, the speed of
Pedroza's recidivism, the leniency of Pedroza's prior sentence,
and Puerto Rico's distinct problems with crime of this type. In
sum, the district court adequately explained the basis for its
upwardly variant sentence.
2. Consideration of Mitigating Evidence
Failure to consider the sentencing factors enumerated in
18 U.S.C. § 3553(a) is an abuse of discretion. See Gall, 552 U.S.
at 51. Pedroza contends that the district court failed to take
into account his "history and characteristics," 18 U.S.C.
§ 3553(a)(1), because the court "refused to consider evidence of
[his] mental and cognitive conditions." Pedroza bases this
contention on two points: that the district court declined defense
counsel's offer to present live testimony from a
neuropsychologist, and that the court at one point stated that it
was "not willing to consider [Pedroza's mental condition] at the
time of sentencing." Neither point survives our review of the
sentencing transcript as a whole.
- 9 -
First, regarding defense counsel's proffered live expert
testimony, the proffer did not occur until the day of (indeed,
after the start of) the sentencing hearing. Of course, had the
court wished to do so, it could have opted to postpone or
reschedule sentencing to hear the expert testimony. But it was
not required to do so. See United States v. Claudio, 44 F.3d 10,
16 (1st Cir. 1995) ("[T]here is no automatic right to present live
testimony at sentencing . . . ."). And we cannot say that the
district court abused its discretion in declining to grant such a
postponement, especially given the absence of any suggestion that
the expert's live testimony would contribute anything beyond what
the expert had already stated in the detailed written report that
had been provided for the district court. See id. In any event,
the district court accepted the gist of the expert's conclusion:
that Pedroza suffered from, in the words of the district court,
"[m]ild mental retardation." The district court rejected,
instead, Pedroza's argument that such a diagnosis warranted a low-
end sentence.7
7 Pedroza also argues that the district court relied on new
information in sentencing without providing him the opportunity to
challenge it. The only new "information" was the court's
disclosure that it had heard the defense's expert testify in other
recent cases and had been unimpressed with her conclusions. The
court relied on no facts gleaned in any other proceeding, noting
only its impression of the expert's testimony. The court pointed
to this impression to explain, in part, why it did not feel a need
to adjourn sentencing to another day in order to hear the expert
testify live. We doubt that such impressions constitute the type
- 10 -
Second, we reject for similar reasons Pedroza's literal,
out-of-context reading of the district court's remark that it was
"not willing to consider [Pedroza's mental condition] at the time
of sentencing." The transcript of the sentencing colloquy contains
pages of discussion reflecting the court's explicit consideration
of Pedroza's mental condition. In context, and in relevant part,
the district court was simply saying that, after expressly
considering and discussing the evidence concerning Pedroza's
mental condition, it found that any mitigating force to that
evidence was undercut by the implications the evidence held for
Pedroza's potential for future dangerousness, and it therefore
declined to rely on the evidence as a reason to issue the low-end
sentence that Pedroza urged. In short, the court clearly
considered Pedroza's mental condition as a component of Pedroza's
"history and characteristics." 18 U.S.C. § 3553(a)(1). And even
though Pedroza was entitled to the court's consideration of the
statutory sentencing factors, he was not entitled to any particular
of "factual information on which [a] sentence is based" that must
be disclosed prior to sentencing. United States v. Zavala-Martí,
715 F.3d 44, 55 (1st Cir. 2013) (quoting United States v. Rivera-
Rodríguez, 489 F.3d 48, 53–54 (1st Cir. 2007)). In any event,
given that the district court ultimately voiced no disagreement
with the expert's report in this case, disagreeing instead only
with the legal import of her diagnosis, Pedroza can point to no
way in which he was prejudiced by the lack of opportunity to
challenge the district court's impressions of the expert's prior
testimony. See Irizarry v. United States, 553 U.S. 708, 716
(2008).
- 11 -
outcome from that consideration. United States v. Carrasco-de-
Jesús, 589 F.3d 22, 29 (1st Cir. 2009); see also United States v.
Rivera-González, 776 F.3d 45, 50 (1st Cir. 2015) (district court
entitled to weigh certain factors "less heavily than [defendant]
would have liked"); United States v. Prosperi, 686 F.3d 32, 43
(1st Cir. 2012) ("[A] district court's 'choice of emphasis' when
considering relevant factors is not a ground for vacating a
sentence." (quoting United States v. Zapata, 589 F.3d 475, 488
(1st Cir. 2009))).
Pedroza responds that even if the district court was not
required to give his mental condition mitigating force, the court
was not entitled to give it any aggravating force. Pointing to
the district court's concern that Pedroza's mental condition left
him with diminished "acumen to make decisions, correct decisions
regarding firearms and firearms use" and rendered him "a bigger
danger than an individual who has an IQ of 125 with an illegal gun
in his hand," Pedroza contends that the district court imposed a
longer sentence than it would have selected had Pedroza not
suffered from any such condition.
A careful reading of the record, however, belies
Pedroza's description of the district court's reasoning. We read
the sentencing transcript as demonstrating that Pedroza received
the same sentence that he would have received had he not submitted
the evidence of his mental condition. The pertinent discussion
- 12 -
commenced with Pedroza arguing that the evidence was a mitigating
factor. The court rejected that argument, noting that the
evidence, when taken together with Pedroza's offense conduct,
suggested a possibility of future dangerousness that undercut the
mitigating weight of Pedroza's diminished culpability. This was
hardly a novel observation. See Penry v. Lynaugh, 492 U.S. 302,
324 (1989), abrogated on other grounds by Atkins v. Virginia, 536
U.S. 304, 321 (2002); cf. U.S.S.G. § 5K2.13 (district court may
not allow downward departure on the basis of diminished capacity
where certain aspects of the offense or defendant's criminal
history indicate a threat to public safety). The court then
explained at length the reasons for its upwardly variant sentence,
never mentioning Pedroza's mental condition among those reasons
and relying instead on Pedroza's offense conduct and criminal
history and the conditions in Puerto Rico. In short, we are
presented here with a decision not to rely on the evidence of
Pedroza's mental condition either way, rather than a decision to
use such evidence to justify a longer sentence than would otherwise
be imposed. We therefore have no need to express any view on
whether and how a sentencing court could rely on such evidence to
the defendant's detriment.
3. The Statement of Reasons Form
A court imposing a non-Guidelines sentence must state
the reasons for the sentence "with specificity in a statement of
- 13 -
reasons form." 18 U.S.C. § 3553(c)(2). Pedroza contends that the
district court committed procedural error here by failing to comply
with this statutory duty. Although the government submits that
the district court did issue a statement of reasons form, a
completed form is not part of the record before us. But it is
unnecessary for us to resolve this factual dispute because if there
was indeed error, it was harmless. Even under an abuse of
discretion standard, a sentencing court's failure to submit a
statement of reasons form will not cause us to vacate the sentence
if, "[g]iven our review of the district court's oral explanation,
we believe that the district court would have imposed the same
sentence had it filed a written statement of reasons form." United
States v. Vázquez-Martínez, 812 F.3d 18, 25 (1st Cir. 2016). In
light of the district court's comprehensive explanation of reasons
in open court, such is the case here.
C. Substantive Reasonableness
Finally, Pedroza argues that his 60-month sentence is
substantively unreasonable. "[T]he linchpin of a reasonable
sentence is a plausible sentencing rationale and a defensible
result." United States v. Martin, 520 F.3d 87, 96 (1st Cir. 2008).
Because we have already found the district court's sentencing
rationale to rest within the range of acceptable discretion, "we
limit our review to the question of whether the sentence, in light
of the totality of the circumstances, resides within the expansive
- 14 -
universe of reasonable sentences." United States v. King, 741
F.3d 305, 308 (1st Cir. 2014).
While Pedroza's 60-month sentence was twice the length
of the 30-month sentence recommended by the parties and nearly
two-thirds longer than a high-end Guidelines sentence of 37 months,
"no 'extraordinary' circumstances are required to justify a
sentence outside the Guidelines range." United States v. Nelson,
793 F.3d 202, 207 (1st Cir. 2015). Recognizing that sentencing
represents "'a judgment call' involving an intricate array of
factors," Flores-Machicote, 706 F.3d at 21 (quoting Martin, 520
F.3d at 92), we cannot say that Pedroza's 60-month sentence for
unlawful firearm possession--while long--is "outside the universe
of reasonable sentences for an offense with a statutory maximum of
120 months," United States v. Paulino-Guzman, 807 F.3d 447, 451
(1st Cir. 2015) (citing 18 U.S.C. § 924(a)(2)).
III. Conclusion
Finding that Pedroza's upwardly variant sentence was
neither procedurally nor substantively unreasonable, we affirm
that sentence.
- 15 -