United States v. Hernandez-Negron ( 2021 )

United States Court of Appeals
For the First Circuit
No. 19-2021
UNITED STATES,
Appellee,
v.
CARLOS HERNÁNDEZ-NEGRÓN,
a/k/a Once Dedos,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Pedro A. Delgado-Hernández, U.S. District Judge]
Before
Howard, Chief Judge,
Kayatta, Circuit Judge,
and Casper, District Judge.
Isabelle C. Oria Calaf for appellant.
James I. Pearce, Appellate Section, Criminal Division, U.S.
Department of Justice, with Julia M. Meconiates, Assistant United
States Attorney, W. Stephen Muldrow, United States Attorney, and
Mariana E. Bauzá-Almonte, Assistant United States Attorney, Chief,
Appellate Division, on brief, for appellee.
December 17, 2021
 Of the District of Massachusetts, sitting by designation.
Casper, District Judge. Defendant-Appellant Carlos
Hernández-Negrón ("Hernández") appeals his sentence of eighty-four
months, claiming that the district court erred by quashing
subpoenas issued to victims and by imposing a sentence Hernández
challenges as procedurally and substantively unreasonable.
Hernández also claims that the district court erred by not
crediting the time he served in pretrial detention for related
state charges that were subsequently dismissed. For the reasons
discussed below, we affirm the judgment.
I.
On December 6, 2017, Hernández was named in a single-
count federal indictment charging him with being a felon in
possession of a firearm in violation of 18 U.S.C. §§ 922(g)(1) and
924(a)(2). The charge arose out of an armed home robbery which
took place in Cidra, Puerto Rico on May 7, 2016. Hernández was
brought into federal custody on December 11, 2017. At the time
of his arrest, Hernández had been in state custody on local charges
related to the May 7th robbery since June 29, 2017. Although
Hernández was detained under federal jurisdiction beginning on
December 11, 2017, he remained under the primary jurisdiction of
the state authorities until April 3, 2018, when the local charges
were dismissed due to speedy trial violations. Prior to
dismissal, the Superior Court of Caguas held a preliminary hearing
on November 9, 2017 and December 13, 2017 at which the two victims
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of the robbery, Joan Cintrón Rivera ("Cintrón") and her husband,
Ismael Fontánez Aponte ("Fontánez"), testified and were cross-
examined by counsel for Hernández. During these proceedings,
Cintrón testified, among other things, that Hernández "grabbed"
her by the neck of her shirt and threatened to "blow [her] up" if
she did not provide the combination to the safe in their home.
Jury selection for Hernández's federal trial was
scheduled to begin on August 16, 2018, with trial set to begin on
August 20, 2018. On August 16, 2018, Hernández pleaded guilty to
the federal charge pursuant to a straight plea, admitting only the
elements of the offense charged in the indictment. The United
States Probation Office ("Probation") prepared a Presentence
Report ("PSR"), which included the armed home robbery as part of
the offense conduct. The PSR calculated a base offense level
("BOL") of fourteen under U.S.S.G. § 2K2.1(a)(6), which applies
when a defendant is a prohibited person (i.e., a convicted felon)
and possesses a firearm. Probation also applied two additional
levels under U.S.S.G. § 2K2.1(b)(1)(A) because the offense
involved three or more firearms and four additional levels under
U.S.S.G. § 2K2.1(b)(6)(B) because the firearm was used or
possessed in connection with another felony offense (i.e., the
robbery). After applying a two-level reduction for acceptance of
responsibility, pursuant to U.S.S.G. § 3E1.1(a), and a one-level
reduction under U.S.S.G. § 3E1.1(b) for timely notifying
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authorities of his intention to plead guilty, the PSR calculated
a total offense level ("TOL") of seventeen. Based on the TOL of
seventeen and Hernández's Criminal History Category ("CHC") of II,
the PSR calculated the advisory guideline sentencing range ("GSR")
to be twenty-seven to thirty-three months.
Hernández objected to the PSR on several grounds.
Hernández argued, inter alia, that because he pleaded guilty only
to the elements of the firearm charge, the PSR wrongly assumed he
participated in the (uncharged) robbery. Hernández further argued
that the Confrontation Clause gives him a right to cross-examine
any witness whose testimony the government intended to use to
establish he was involved in the robbery. Accordingly, Hernández
subpoenaed Cintrón and Fontánez to testify at his sentencing, which
the government moved to quash. Hernández claimed that due process
required that the victims of the armed home robbery testify at the
sentencing because credibility would decide his sentence. The
district court granted the government's motion to quash the
subpoenas, and the sentencing hearing was held the following day
on September 11, 2019.
The government sought a sentence of one hundred twenty
months' imprisonment, while Hernández sought a twelve-month
sentence. At the sentencing hearing, the government stated that
it would prove the relevant conduct to support the sentencing
enhancements in the PSR. To that end, the government played
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security footage of the site of the robbery, and called Agents
Josian Rodríguez-Gonzalez ("Agent Rodríguez") and José Pedraza-
Ortiz ("Agent Pedraza") as witnesses. The district court
indicated that it had reviewed the transcripts of Cintrón's and
Fontánez's testimony at the state preliminary hearing that the
government had provided to the court. Agent Rodríguez testified
that he prepared a photo lineup to show to Cintrón as part of the
investigation, and that within two to three seconds of viewing the
lineup, Cintrón identified Hernández as the person who threatened
her during the robbery. Agent Pedraza, a lifelong resident of
Cidra, testified that he had known Hernández for more than twenty
years. During the investigation, Agent Pedraza was asked to view
the security footage of the exterior of the victims' residence
from the day of the robbery. The footage shows the perpetrators
arrive at the residence in a blue vehicle and enter the residence.
Later clips of the footage show the perpetrators place a safe box
in the blue vehicle, fire shots toward a nearby business, get back
into the car, and continue to fire shots as they flee the area in
the blue vehicle. The security footage also shows Fontánez
briefly approach the scene outside his residence before he retreats
back to the area of the nearby business. The end of the footage
shows Cintrón exit the residence as she is joined by Fontánez.
Agent Pedraza testified that he immediately recognized Hernández
as one of the perpetrators depicted in the security footage. For
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his part, Hernández challenged the reliability of Cintrón's
identification due to what he characterized as inconsistencies and
argued that the government failed to meet its burden of
establishing that he participated in the robbery.
Citing Cintrón's and Agent Pedraza's identifications
of Hernández specifically, the district court found that Hernández
participated in the armed home robbery. As to Cintrón's
identification, the Court cited her identification of Hernández at
the preliminary hearing in the state proceeding, which was made
without hesitation. The Court dismissed any inconsistencies that
Hernández sought to highlight in that testimony and concluded that
this did not detract from the identification. As to Agent
Pedraza's identification, the Court similarly noted the lack of
hesitancy in his identification of Hernández from the security
footage and other factors (which include having known him for over
twenty years). The court noted that the BOL for the offense was
fourteen and applied a two-level increase because the crime
involved three or more firearms and a four-level increase because
Hernández possessed the firearms in connection with another
felony. As to acceptance of responsibility, the court granted a
two-level, not three-level, reduction for same under § 3E1.1(a).
Accordingly, the court calculated the TOL to be eighteen. Based
on the TOL and a CHC of II, the advisory GSR was thirty to thirty-
seven months.
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Turning to the sentencing factors under 18 U.S.C.
§ 3553(a), the Court cited Hernández's personal history including
that the 41-year-old was a resident of Cidra, had one child,
attended school until the tenth grade, and although unemployed at
the time of his arrest, had previously owned two food trucks. The
Court cited his physical and emotional health, including an earlier
history of substance abuse until 2006. The Court also recited his
criminal history, noting, among other things, that this was his
seventh conviction and that his prior convictions had included
ones for robbery (in 1998, resulting in a sentence of eight years)
and attempted robbery (in 2004, resulting in a sentence of four
years). The Court also noted that after he committed the offense
in this case, he absconded from Puerto Rico and was not arrested
until June 2017 in Massachusetts, where he was charged as a
fugitive from justice and later extradited back to Puerto Rico.
Citing the seriousness of the offense in this case, and the need
to promote respect for the law and public protection, the court
concluded that a sentence above the advisory GSR was warranted and
sentenced Hernández to eighty-four months' imprisonment, three
years of supervised release, and a mandatory $100 special
assessment.
Hernández objected to the sentence as procedurally and
substantively unreasonable, arguing that the government failed to
prove by a preponderance of the evidence that Hernández
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participated in the robbery, and that the record did not support
the sentence imposed. Additionally, Hernández requested that he
receive credit for the time he spent in custody on the related
state charges for relevant conduct prior to being taken into
federal custody. Accordingly, the court ordered the parties to
submit briefs on the issue. In their respective memoranda,
Hernández and the government disagreed about whether he should
receive credit for time served in state custody but agreed that it
is the province of Bureau of Prisons ("BOP") to determine credited
time, and they requested amendment of the PSR to include the
relevant pretrial detention dates for such determination.
Subsequently, the district court ordered the PSR be amended to
reflect the relevant dates of pretrial detention (specifically,
the December 11, 2017 date that Hernández was transferred to
federal custody pursuant to writ of habeas corpus ad prosequendum;
and the date that the state charges were dismissed on April 3,
2018), and entered its judgment. This appeal followed.
II.
"We review criminal sentences imposed under the advisory
guidelines regime for abuse of discretion." United States v.
Flores-Machicote, 706 F.3d 16, 20 (1st Cir. 2013). Within this
framework, "we review issues of law de novo and findings of fact
for clear error." United States v. Dávila-Bonilla, 968 F.3d 1, 9
(1st Cir. 2020). Applying this standard, we must determine first
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that the district court committed "no significant procedural
error" which, for example, might include an improper calculation
of the GSR. Gall v. United States, 552 U.S. 38, 51 (2007). If
the sentencing was "procedurally sound," we turn to the
"substantive reasonableness of the sentence imposed" by "tak[ing]
into account the totality of circumstances, including the extent
of any variance from the Guidelines range." Id.III.
The district court's quashing of the subpoenas to
Cintrón and Fontánez did not violate Hernández's due process
rights. "At a sentencing hearing, neither the Federal Rules of
Evidence nor the Sixth Amendment right to cross-examination
apply." United States v. Berrios-Miranda, 919 F.3d 76, 80 (1st
Cir. 2019) (citing United States v. Bramley, 847 F.3d 1, 5 (1st
Cir. 2017)). Accordingly, a sentencing court may consider any
evidence with "sufficient indicia of reliability to support its
probable accuracy." Berrios-Miranda, 919 F.3d at 80 (quoting
United States v. Cintrón-Echautegui, 604 F.3d 1, 6 (1st Cir.
2010)). Still, the sentencing procedure "must comport with due
process demands and the parameters of Rule 32 of the Federal Rules
of Criminal Procedure." Id. Accordingly, a defendant may not be
sentenced upon information that is false or materially incorrect,
id., and "[a] defendant must be provided with a meaningful
opportunity to comment on the factual information on which his or
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her sentence is based," United States v. Rondón-García, 886 F.3d
14, 21 (1st Cir. 2018) (quoting United States v. Berzon, 941 F.2d
8, 21 (1st Cir. 1991)).
Here, it was disputed between the parties whether the
court could find, based on a preponderance of the evidence, that
Hernández possessed the firearm in connection with the robbery.
Hernández argues that he was deprived of his due process right to
confront witnesses when the district court quashed his subpoenas
to the victims. "It is the government's burden at sentencing to
prove sentencing enhancement factors by a preponderance of the
evidence, and a district court may base its determinations on 'any
evidence that it reasonably finds to be reliable.'" United States
v. Lacouture, 835 F.3d 187, 189–90 (1st Cir. 2016) (quoting United
States v. Almeida, 748 F.3d 41, 53 (1st Cir. 2014)). Regarding
its burden of proof as to the sentencing enhancements, the
government relied upon the prior testimony of both victims,
security footage, and the live testimony of Agents Rodríguez and
Pedraza. Even in the absence of a Sixth Amendment right to
confront witnesses at a criminal sentencing, Hernández had the
requisite meaningful opportunity to engage with the factual basis
for his sentence provided by Cintrón's and Fontánez's testimony.
The testimony, while not given at the sentencing, was given at the
state preliminary hearing, during which these witnesses were
subject to extensive cross-examination by Hernández's counsel.
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Moreover, Hernández did not propose to the district court any
material line of inquiry that had not already been explored with
these witnesses in the state proceedings. Hernández had equal
access to the transcript of the prior testimony, and he had a
meaningful opportunity at the sentencing to proffer arguments
regarding their reliability as witnesses and to cross-examine
Pedraza, who provided his own identification of Hernández, and
Rodríguez, who took the identification of Hernández from Cintrón.
Accordingly, the district court did not abuse its discretion when
it quashed Hernández's subpoenas.
IV.
Moreover, the upwardly variant sentence was both
procedurally and substantively reasonable. Hernández argues that
the government did not prove, by a preponderance of the evidence,
that he participated in the armed home robbery, and therefore, it
was procedurally unreasonable to apply the four-level sentence
enhancement under U.S.S.G. § 2K2.1(b)(6)(B) for the firearm being
possessed in connection with the felony robbery. This argument
is unavailing.
The district court did not clearly err when it applied
the additional four levels because there was an adequate factual
basis to find, by a preponderance of the evidence, that Hernández
participated in the May 7, 2016 armed home robbery. The district
court relied upon not only the eyewitness testimony from Cintrón
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connecting Hernández to the robbery, but also Agent Pedraza's
testimony that corroborated Cintrón's identification of Hernández.
This evidence is sufficient to prove, by a preponderance of the
evidence, that the firearm was used in connection with the robbery.
We thus conclude that the district court did not clearly err in
applying the four-level enhancement under U.S.S.G.
§ 2K2.1(b)(6)(B).
Relatedly, we also conclude that the court did not err
in applying the two-level enhancement for the involvement of three
or more firearms under U.S.S.G. § 2K2.1(b)(1)(A). Security
footage, together with eyewitness testimony from Fontánez,
adequately proved, by a preponderance of the evidence, that at
least three firearms were involved in the May 7th robbery.
Although not addressed expressly during the sentencing,
we further conclude that declining to grant Hernández the
additional one-level reduction pursuant to U.S.S.G. § 3E1.1(b) for
timely notifying authorities of his intention to plead guilty was
not clearly erroneous. Indeed, U.S.S.G. § 3E1.1(b) "is available
only to defendants who accept responsibility early enough to save
the government the time and expense of preparing for trial."
United States v. Garrasteguy, 559 F.3d 34, 38 (1st Cir. 2009).
This one-level reduction is available to a defendant who qualifies
for a two-level reduction under U.S.S.G. § 3E1.1(a), has an offense
level of 16 or above and "upon motion of the government" that
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defendant has "timely notif[ied] authorities of his intention to
enter a plea of guilty." U.S.S.G. § 3E1.1(b). Here, the
government noted that Hernández pleaded guilty one day before jury
selection was set to begin, and took the position below that
Hernández should not receive any reduction for acceptance of
responsibility under U.S.S.G. § 3E1.1(a) (for his failure to
accept responsibility for relevant conduct) or § 3E1.1(b) (for his
failure to notify the government timely of his intention to plead
guilty). As the district court allowed the two-level reduction
under U.S.S.G. § 3E1.1(a) and Hernández's appeal concerns only the
one-level reduction not given under U.S.S.G. § 3E1.1(b), we
confine our discussion to this latter issue.
Although Hernández objected to the government's position
below regarding no reduction for acceptance of responsibility, he
did not squarely object to the district court's declining to award
the one-level reduction under U.S.S.G. § 3E1.1(b). Accordingly,
we review only for plain error. United States v. Serrano-Mercado,
784 F.3d 838, 844–45 (1st Cir. 2015). Such argument fails on
plain error review, but even assuming arguendo that he had
preserved this claim, it also fails under the abuse of discretion
standard. The entry of Hernández's guilty plea one day before
jury selection was not timely under U.S.S.G. § 3E1.1(b), where
the timing of same did not permit the government to avoid trial
preparation as this provision contemplates. See United States v.
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Arango, 508 F.3d 34, 41 (1st Cir. 2007) (affirming denial of one-
level adjustment under U.S.S.G. § 3E1.1(b) where defendant pleaded
guilty five days before the start of trial); see also United States
v. Donovan, 996 F.2d 1343, 1345–46 (1st Cir. 1993) (per curiam)
(concluding district court did not clearly err by denying
additional one-level reduction when defendant pleaded guilty on
the eve of the second trial date). By the time that Hernández
indicated that he would enter a guilty plea, the case had been set
for trial, and the government had filed several motions in limine,
responded to Hernández's motions in limine, designated an expert
witness, and filed proposed jury instructions and jury voir dire
questions. The timing of Hernández's plea did not allow the
government to avoid this necessary trial preparation or the
district court "to allocate [its] resources efficiently," another
consideration under U.S.S.G. § 3E1.1(b). Accordingly, the
district court did not err in declining to deduct a third level
for acceptance of responsibility from the TOL.
Having concluded that his sentence was procedurally
sound, we turn to Hernández's claim that his sentence is
substantively unreasonable. This argument also fails. The thirty
to thirty-seven-month GSR is "advisory" rather than mandatory,
and, accordingly, "the GSR is not controlling on the question of
the substantive reasonableness of a particular sentence." United
States v. Gates, 709 F.3d 58, 71 (1st Cir. 2013). Still, the
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Court must consider the GSR as part of its review of the
reasonableness of the sentence. Id. Here, we stated that the
district court had considered all the sentencing factors set forth
in 18 U.S.C. § 3553(a). "Such a statement is entitled to
significant weight." United States v. Santiago–Rivera, 744 F.3d
229, 233 (1st Cir. 2014) (citing United States v. Dávila–González,
595 F.3d 42, 49 (1st Cir. 2010)). More importantly, the district
court explained the reasons for the "steep upward variance" that
it imposed here. United States v. Díaz-Lugo, 963 F.3d 145, 157
(1st Cir. 2020).
As to the § 3553(a) factors other than the advisory GSR,
the district court noted that Hernández has a long criminal
history, involving multiple convictions and multiple terms of
imprisonment, and culminating in this armed home robbery.1 As the
district court also recited, after committing this crime,
Hernández absconded from justice for a year before he was
apprehended.2 Moreover, Hernández's commission of the crime of
1Given the details of Hernández's criminal record that the
district court highlighted in explaining his sentence, "it is safe
to say that the judge implicitly found that the defendant's
criminal history score substantially under-represented" his past
criminal acts. See United States v. Santiago-Rivera, 744 F.3d
229, 233 n.3 (1st Cir. 2014); see also United States v. Laboy-
Nadal, 992 F.3d 41, 44 (1st Cir. 2021) (noting that "a variance
analysis may 'echo' a departure consideration" (internal citation
omitted)).
2To the extent that Hernández now objects to the district
court's reliance upon this matter, he failed to object to such
reliance below and, even on appeal, his failure to develop this
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being a felon in possession of a firearm involved an armed home
robbery in which Hernández fired his weapon before fleeing the
scene. The district court expressly found that the nature of his
involvement in the robbery, which included violent "threat[s]" to
Cintrón and "reckless behavior" in discharging his weapon, made
Hernández's case different from the "typical felon in possession
case." See United States v. Bruno-Campos, 978 F.3d 801, 806 (1st
Cir. 2020); United States v. Guzman-Fernandez, 824 F.3d 173, 177-
78 (1st Cir. 2016). Although the eighty-four-month sentence
imposed by the district court is significantly higher than the
advisory GSR, the balance of Hernández's crime and the other
§ 3553(a) factors reasonably justified a higher sentence, even as
the district court did not impose the 120-month sentence, the
statutory maximum sentence, that the government recommended. 3
argument amounts to waiver. United States v. Zannino, 895 F.2d
1, 17 (1st Cir. 1990) (noting the "settled appellate rule that
issues adverted to in a perfunctory manner, unaccompanied by some
effort at developed argumentation, are deemed waived"). Even
under plain error review, this claim fails where the undisputed
record was that he was arrested in Massachusetts on June 29, 2017
and subsequently extradited to Puerto Rico on an outstanding
fugitive arrest warrant, which, unlike United States v. Marrero-
Pérez, 914 F.3d 20, 24 (1st Cir. 2019) (finding plain error where
sentencing court relied upon multiple, prior arrests "without some
greater indicia of reliability that the conduct underlying the
arrest took place" or corroborating evidence of same), is
sufficient basis for the district court's limited reference that
he had "absconded from justice."
3 To the extent that Hernández intended to challenge the
upward variance not just on the ground that it was substantively
unreasonable, but also that it was procedurally unreasonable, this
latter argument also fails. We recognize that the "farther the
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Díaz-Lugo, 963 F.3d at 156–58. Therefore, we conclude that the
sentence imposed by the district court is substantively
reasonable, given all of the § 3553(a) factors.
V.
Having affirmed Hernández's sentence for all the reasons
discussed above, there is one remaining issue related to the record
submitted to the BOP for credit for time served for his prior state
imprisonment. "The Bureau of Prisons, and not the courts,
determines when a defendant's sentence starts and whether the
defendant should receive credit for any prior time spent in
custody." United States v. Montez-Gaviria, 163 F.3d 697, 700–01
(2d Cir. 1998); see United States v. Morales-Madera, 352 F.3d 1,
15 (1st Cir. 2003) (similar). Hernández conceded that it is for
the BOP, not the district court, to decide whether he should
receive credit for his state pretrial detention. To the extent
that Hernández has preserved any objection to the district court's
failure to credit his pretrial detention, such matter is for the
BOP, not the court, to resolve where, as here, Hernández's time in
state custody was for pretrial detention, governed by 18 U.S.C.
§ 3585, and not an undischarged term of imprisonment or anticipated
judge's sentence departs from the guidelines sentence . . . the
more compelling the justification based on factors in section
3553(a) that the judge must offer." United States v. Smith, 445
F.3d 1, 4 (1st Cir. 2006) (omission in original) (quoting United
States v. Dean, 414 F.3d 725, 729 (7th Cir. 2005)). For all of
the reasons explained above, such argument is not persuasive here.
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state term of imprisonment, U.S.S.G. §§ 5G1.3, 5K2.23, as
Hernández concedes in his brief. See Morales-Madera, 352 F.3d at
15.
Nevertheless, both parties agreed that the information
regarding the time Hernández spent in state custody should be
included in the PSR. The district court agreed and ordered that
the PSR be amended to reflect the relevant dates. Although
Hernández reports that the PSR has yet to be amended in this
fashion in accordance with the district court order, the district
court has already issued the order that the parties sought so that
the PSR (which already included the date of his arrest on the state
warrant, June 29, 2017) would also include the date he was brought
into federal custody, December 11, 2017, and the date the state
charges were dismissed, April 3, 2018, for the purposes of the BOP
calculating any additional credit for time served. Accordingly,
no further action is warranted by this Court.
VI.
For the foregoing reasons, we affirm Hernández's
judgment.
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