United States v. Ortiz-Vidot ( 2021 )

Not for Publication in West's Federal Reporter
United States Court of Appeals
For the First Circuit
No. 20-1719
UNITED STATES OF AMERICA,
Appellee,
v.
JOSÉ JAVIER ORTIZ-VIDOT,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Francisco A. Besosa, U.S. District Judge]
Before
Thompson, Selya, and Barron,
Circuit Judges.
Mariángela Tirado-Vales on brief for appellant.
W. Stephen Muldrow, United States Attorney, Mariana E. Bauzá-
Almonte, Assistant United States Attorney, Chief, Appellate
Division, and Gregory B. Conner, Assistant United States Attorney,
on brief for appellee.
December 10, 2021
SELYA, Circuit Judge. In this sentencing appeal,
defendant-appellant José Javier Ortiz-Vidot takes aim at both the
imposition of a two-level guideline enhancement for possession of
multiple firearms and his upwardly variant sentence. Concluding,
as we do, that the appellant is firing blanks, we affirm.
I
We briefly rehearse the relevant facts and travel of the
case. "Where, as here, 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).
On April 21, 2019, a vehicle in which the appellant and
three other persons were riding flipped over on a highway in
Caguas, Puerto Rico. While tending to the accident, Puerto Rico
police officers found two Glock pistols modified to fire as machine
guns, ten magazines, and 220 rounds of ammunition inside the
vehicle. Within close proximity to the crashed car, police
officers found a third Glock pistol, also modified to fire as a
machine gun, and a Taurus revolver. Having sustained serious
injuries, the appellant was transported to a trauma center and
remained there for the next few days.
We fast-forward to May 23, 2019. By then, the incident
had been brought to the attention of the federal grand jury. As
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relevant here, the grand jury returned a second superseding
indictment, charging the appellant with possession of a machine
gun. See 18 U.S.C. § 922(o). The appellant initially maintained
his innocence but later pleaded guilty to the charge pursuant to
a plea agreement (the Agreement). The stipulation of facts in the
Agreement identified only the two machine guns found inside the
vehicle. And at the change-of-plea hearing, the appellant stressed
that he was only accepting responsibility for those two machine
guns.
The court ordered the preparation of a PSI Report. In
the report, the probation office described the offense of
conviction. On page five, it listed the four weapons — three
machine guns and one revolver — found at the scene of the accident.
Based on the presence of those weapons, the probation office
recommended a two-level enhancement. See USSG §2K2.1(b)(1)(A)
(providing for such an enhancement where defendant possessed three
to seven firearms). This enhancement, together with other
adjustments not in issue here, brought the appellant's total
offense level to seventeen. Paired with a criminal history
category of I, the guideline sentencing range (GSR) was twenty-
four to thirty months' imprisonment.
At the disposition hearing, defense counsel objected to
the two-level guideline enhancement and advocated in favor of the
plea-agreement guideline range. She stated that the appellant had
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only "accepted [] responsibility for two firearms." She added
that the appellant suffered from amnesia as a result of the
accident and, as a consequence, did not "recall what transpired."
Defense counsel speculated that "perhaps . . . what brings him to
this case is a bad choice of friends that may have placed him in
this situation for which he is accepting responsibility." She
emphasized that the appellant had no criminal history and no
"record of abuse of drugs, [] use of illegal weapons, [or] abuse
of alcohol." In the end, she suggested a twenty-four-month term
of immurement, and the government joined in that recommendation.
The appellant declined to allocute.
The sentencing court began by outlining the guideline
calculations, finding that the appellant possessed multiple
firearms and overruling his objection to the two-level
enhancement. Consequently, the court accepted the calculations
limned in the PSI Report and set the GSR at twenty-four to thirty
months. The court then considered the factors delineated in 18
U.S.C. § 3553(a). It described the offense of conviction as very
dangerous and stated that the parties' joint sentencing
recommendation "d[id] not reflect the seriousness of the offense,
d[id] not promote respect for the law, d[id] not protect the public
from further crimes by [the appellant], and d[id] not address the
issues of deterrence and punishment." The court proceeded to
impose a forty-eight-month upwardly "variant sentence because [the
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appellant] possessed three pistols modified to shoot
automatically, a revolver, and 219 rounds of ammunition."
Defense counsel requested reconsideration, emphasizing
that the appellant had accepted responsibility for only two
firearms. The court denied her motion, reiterating that it agreed
with "what is indicated in the pre-sentence investigation report
as to the number of weapons." This timely appeal followed.
II
"Appellate review of claims of sentencing error entails
a two-step pavane." United States v. Matos-de-Jesús, 856 F.3d
174, 177 (1st Cir. 2017). We first examine any claims of
procedural error. See id. If the challenged sentence is
procedurally sound, we then examine any claim of substantive
unreasonableness. See id.In this instance, the appellant raises two claims of
procedural error and a claim of substantive unreasonableness. We
address each claim separately.
A
The appellant's principal claim of procedural error
implicates the two-level sentencing enhancement under USSG
§2K2.1(b)(1)(A) for possession of three to seven firearms. Since
the appellant objected to this enhancement below, our review is
for abuse of discretion. See United States v. Ilarraza, 963 F.3d
1, 7 (1st Cir. 2020). This standard "is not monolithic: under
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its aegis, we assay the district court's findings of fact for clear
error and its interpretation and application of the sentencing
guidelines de novo." Id. at 7-8.
The appellant's claim of error stands or falls on the
force of his challenge to the district court's determination that
he possessed at least three firearms. This determination is a
finding of fact, reviewed for clear error. See id. at 10; see
also United States v. Cates, 897 F.3d 349, 354 (1st Cir. 2018)
(explaining that "findings based on inferences drawn from
discerned facts" are reviewed only for clear error). We have
characterized clear-error review as "demanding." United States v.
Nuñez, 852 F.3d 141, 144 (1st Cir. 2017). The proponent of clear
error will prevail "only if, 'upon whole-record-review, an
inquiring court form[s] a strong, unyielding belief that a mistake
has been made.'" Id. (alteration in original) (internal quotation
omitted) (quoting United States v. Cintrón-Echautegui, 604 F.3d 1,
6 (1st Cir. 2010)).
The appellant argues that the sentencing court's finding
is clearly erroneous because he "only accepted guilt for the
possession of 2 firearms." He does not dispute, however, that
four firearms — three machine guns and a revolver — were retrieved
at the scene of the accident. Nor does he dispute the PSI Report's
description of the proximity of the firearms to the vehicle in
which he was riding. See Fed. R. Crim. P. 32(i)(3)(A) (explaining
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that a sentencing court "may accept any undisputed portion of the
presentence report as a finding of fact").
What is more, the PSI Report — to which the appellant
did not object — unequivocally states that the appellant and two
other individuals, "aiding and abetting each other, did knowingly
possess machineguns." That same paragraph goes on to identify the
machine guns as three in number. Although the appellant argues on
appeal that the district court had no evidence to support a finding
that he possessed the two weapons for which he did not explicitly
accept responsibility, the unobjected-to statements in the PSI
Report are themselves evidence. See United States v. Fernández-
Cabrera, 625 F.3d 48, 54 (1st Cir. 2010) (explaining that
"unobjected-to '[f]acts contained in a presentence report
ordinarily are considered reliable evidence for sentencing
purposes'" (alteration in original) (quoting United States v.
Morillo, 8 F.3d 864, 872 (1st Cir. 1993))). Those statements are
sufficient to ground a finding of constructive possession of the
third machine gun. See Nuñez, 852 F.3d at 145 (defining
constructive possession as "'when a person knowingly has the power
at a particular time to exercise dominion and control over' an
object" (quoting United States v. Maldonado-García, 446 F.3d 227,
231 (1st Cir. 2006))). And constructive possession is all that is
required to trigger a sentencing enhancement under USSG
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§2K2.1(b)(1)(A). See id. at 144-45. It follows that the district
court's imposition of the enhancement was not clearly erroneous.
B
The appellant's second claim of procedural error
implicates his sentence as a whole. This claim was not raised
below and, thus, our review is for plain error. See United States
v. Duarte, 246 F.3d 56, 60 (1st Cir. 2001).
"The plain error hurdle is high." United States v.
Hunnewell, 891 F.2d 955, 956 (1st Cir. 1989). The proponent of
plain-error review must carry the devoir of persuasion as to each
of "four showings: (1) that an error occurred (2) which was clear
or obvious and which not only (3) affected the [appell]ant's
substantial rights, but also (4) seriously impaired the fairness,
integrity, or public reputation of judicial proceedings." Duarte,
246 F.3d at 60. The appellant stumbles at the first step of the
four-part test.
It is common ground that a sentencing court must state
in open court "the specific reason for the imposition of a
[variant] sentence." 18 U.S.C. § 3553(c)(2). When examining a
sentencing court's justification for a variance, a reviewing court
must ask whether the sentencing court "relie[d] on factors not
adequately accounted for in the GSR." United States v. Díaz-Lugo,
963 F.3d 145, 156 (1st Cir. 2020). Where — as here — the sentencing
court relies on a factor already considered in formulating the
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GSR, the question becomes whether the sentencing court explained
"what makes that factor worthy of extra weight in the defendant's
case." United States v. Fields, 858 F.3d 24, 32 (1st Cir. 2017)
(citing United States v. Zapete-Garcia, 447 F.3d 57, 60 (1st Cir.
2006)). This explanation, though, need not "be precise to the
point of pedantry." United States v. Del Valle-Rodríguez, 761
F.3d 171, 177 (1st Cir. 2014).
Viewed through this lens, the court below adequately
articulated why the appellant's case called for an upwardly variant
sentence. The court made pellucid that it was imposing such a
sentence because the appellant was in possession of three machine
guns and over 200 rounds of ammunition. This explanation left no
doubt that the seriousness of the offense was spearheading the
court's sentencing calculus.
The appellant attempts to parry this thrust. He argues
that this factor was already fully accounted for in the GSR. This
argument cannot withstand scrutiny.
USSG §2K2.1(a)(5) supplied the base offense level
(eighteen) for the offense of conviction. By its terms, this
provision contemplates possession of only a single machine gun.
And the enhancement that the district court applied, see USSG
§2K2.1(b)(1)(A), contemplates a multiplicity of firearms, not — as
was the case here — a multiplicity of machine guns. We thus find
the sentencing court's stated justification for an upward variance
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sufficient to defeat the claim of procedural error. See, e.g.,
United States v. Bruno-Campos, 978 F.3d 801, 806 (1st Cir. 2020)
(holding that sentencing court did not err in concluding that
possession of three machine guns and four magazines removed
defendant's case from "heartland of [] relevant guidelines");
Díaz-Lugo, 963 F.3d at 156 (similar).
C
The appellant's final challenge addresses the
substantive reasonableness of his sentence. "We review challenges
to the substantive reasonableness of a sentence for abuse of
discretion." Bruno-Campos, 978 F.3d at 808 (citing Holguin-
Hernandez v. United States, 140 S. Ct. 762, 766 (2020)).
"In the sentencing context, 'reasonableness is a protean
concept.'" United States v. Clogston, 662 F.3d 588, 592 (1st Cir.
2011) (quoting United States v. Martin, 520 F.3d 87, 92 (1st Cir.
2008)). Consequently, "[t]here is no one reasonable sentence in
any given case but, rather, a universe of reasonable sentencing
outcomes." Id. Our task, then, is to "determine whether the
challenged sentence falls within that expansive universe." Díaz-
Lugo, 963 F.3d at 157.
Under our case law, a sentence will be deemed
substantively reasonable as long as the sentencing court proffers
"a plausible sentencing rationale" and the sentence imposed
comprises "a defensible result." Martin, 520 F.3d at 96. "This
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standard is 'highly deferential' to the district court's judgment,
even when that court has imposed a variant sentence." Fields, 858
F.3d at 33 (quoting Matos-de-Jesús, 856 F.3d at 180).
Here, the sentencing court stated that it was imposing
a variant sentence because the appellant possessed three machine
guns and over 200 rounds of ammunition. Just prior to pronouncing
the variant sentence, the court expressed significant concerns
with the type of firearm involved. It observed that "[s]hort of
bombs, missiles, and biochemical agents, the Court c[ould]
conceive of few weapons that are more dangerous than machine guns."
Given the appellant's possession of what amounted to a small
arsenal, the court determined that a lesser sentence would "not
reflect the seriousness of the offense," "promote respect for the
law," "protect the public from further crimes by [the appellant],"
or adequately "address the issues of deterrence and punishment."
This rationale was plausible.
So, too, the challenged sentence represents a defensible
result. The offense of conviction was serious, and the court
plainly wanted to send a message by imposing a term of immurement
commensurate with the gravity of the crime. We have recognized in
other cases that an upwardly variant sentence is an appropriate
means of responding to a particularly serious crime. See, e.g.,
Bruno-Campos, 978 F.3d at 809; Díaz-Lugo, 963 F.3d at 158.
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To be sure, the sentence is stiff. Its length places it
near the outer edge of the universe of reasonable sentences.
Withal, considerable deference is owed to a sentencing court's
first-hand view as to the appropriate length of a sentence. See
United States v. King, 741 F.3d 305, 308 (1st Cir. 2014).
Employing this deferential standard of review, we cannot say that
the length of the sentence imposed here is beyond the pale. We
conclude, therefore, that the sentencing outcome is a defensible
one.
That ends this aspect of the matter. Considering both
the rationale and the result, we hold that the sentence is
substantively reasonable.
III
We need go no further. For the reasons elucidated above,
the challenged sentence is
Affirmed.
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