United States v. Valle-Colon ( 2021 )

United States Court of Appeals
For the First Circuit
No. 18-1360
UNITED STATES OF AMERICA,
Appellee,
v.
JOSHUA VALLE-COLÓN,
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 Kayatta,
Circuit Judges.
Raúl S. Mariani Franco on brief for appellant.
W. Stephen Muldrow, United States Attorney, Mariana E. Bauzá-
Almonte, Assistant United States Attorney, Chief, Appellate
Division, and Julia M. Meconiates, Assistant United States
Attorney, on brief for appellee.
December 20, 2021
SELYA, Circuit Judge. Defendant-appellant Joshua Valle-
Colón challenges his upwardly variant sentence for possessing a
firearm in furtherance of a drug-trafficking crime. He asserts
that the sentencing court erred in imposing a sentence over the
applicable guideline sentencing range (GSR) — a sentence that he
deems both procedurally flawed and substantively unreasonable.
Concluding, as we do, that the appellant's arguments are futile,
we affirm.
I. BACKGROUND
We briefly rehearse the facts and travel of the case.
Where, as here, "a sentencing appeal follows a guilty plea, we
draw the 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. Miranda-
Díaz, 942 F.3d 33, 37 (1st Cir. 2019) (quoting United States v.
Dávila-González, 595 F.3d 42, 45 (1st Cir. 2010)).
On March 23, 2016, Puerto Rico police officers received
confidential information that the appellant was in possession of
two stolen motor vehicles and one or more firearms. The tip went
on to recount that the appellant was also selling controlled
substances. The police surveilled the appellant and later obtained
a search warrant for his residence. During the search incident to
the execution of the warrant, police officers found a plenitude of
contraband, including the two stolen cars, two guns, ammunition,
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various drugs, drug paraphernalia, and a substantial amount of
cash. Upon custodial interrogation — after waiving his Miranda
rights, see Miranda v. Arizona, 384 U.S. 436, 444 (1966) — the
appellant admitted that all the contraband belonged to him and a
friend.
On July 20, 2017, a federal grand jury sitting in the
District of Puerto Rico returned a three-count superseding
indictment, charging the appellant with two counts of possession
of drugs with intent to distribute, see 21 U.S.C. § 841(a)(1), and
one count of possession of a firearm in furtherance of a drug-
trafficking crime, see 18 U.S.C. § 924(c)(1)(A)(i). Although the
appellant initially maintained his innocence, he eventually
entered a straight guilty plea to all three counts. The district
court accepted the plea and ordered the preparation of a PSI
Report. When received, the PSI Report recommended a GSR of ten to
sixteen months for the drug counts. The firearms count carried a
mandatory minimum prison term of five years. See id. That
mandatory minimum was the guideline sentence. See USSG §2K2.4(b).
At the disposition hearing, defense counsel pointed out
that the appellant was young (age twenty-one at the time of his
arrest) and "had a difficult childhood." Counsel went on to assert
that the appellant was "very repentant" and should be treated as
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a first-time offender.1 Summing up, counsel advocated for a
seventy-month aggregate sentence: sixty months for the gun-
possession charge and ten months for the drug charges. In his
allocution, the appellant attempted to buttress his attorney's
appraisal, telling the court that he was "very remorseful" and
that he had "plans . . . to be a good man" and "to study."
The prosecutor viewed the matter differently. She
argued for an aggregate sentence of eighty-eight months: an
upwardly variant seventy-two-month sentence for the firearms count
and a sixteen-month sentence for the drug counts. The prosecutor
pointed out (among other things) that the appellant was breaking
the law both by living in public housing without authorization and
by conducting illegal activities there; that he possessed two
weapons, one of which was an assault rifle; and that he stored
drugs in the bedroom where his pregnant common-law wife slept.
The prosecutor also pointed to events that took place while the
appellant was a juvenile and to conduct for which the appellant
had not been convicted, suggesting that the appellant's criminal
history category (I) underrepresented his past involvement with
illegal activities and his likelihood of recidivism.
The district court — without objection — adopted the
guideline calculations limned in the PSI Report. It then mulled
1 The PSI Report reflected — and the district court found —
that the appellant's criminal history category was I.
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the sentencing factors delineated in 18 U.S.C. § 3553(a). The
court then imposed an aggregate incarcerative sentence of eighty-
eight months: seventy-two months for the gun-possession charge
and sixteen months for the drug charges. The court stressed the
appellant's possession of two guns, one a military-style assault
rifle (discovered in a child's bedroom) and the other a Smith &
Wesson pistol.
This timely appeal followed.
II. ANALYSIS
In reviewing claims of sentencing error, we engage in a
two-step pavane. See Miranda-Díaz, 942 F.3d at 39; United States
v. Matos-de-Jesús, 856 F.3d 174, 177 (1st Cir. 2017). The first
step is to "examine any claims of procedural error." United States
v. Díaz-Lugo, 963 F.3d 145, 151 (1st Cir. 2020); see United States
v. Bruno-Campos, 978 F.3d 801, 805 (1st Cir. 2020). If no
procedural error is found, the second step is to examine any
challenge to the substantive reasonableness of the sentence. See
Matos-de-Jesús, 856 F.3d at 177; Bruno-Campos, 978 F.3d at 805.
The appellant advances a claim of procedural error and
a claim of substantive unreasonableness. We discuss these claims
separately, mindful that they are addressed solely to the upwardly
variant sentence on the firearms charge.
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A. Claim of Procedural Error.
The appellant contends that the sentencing court erred
in imposing an upwardly variant sentence "without providing
adequate justification for the increased punishment imposed."
This contention, though, is raised for the first time on appeal.2
Our review, therefore, is for plain error. See United States v.
Duarte, 246 F.3d 56, 60 (1st Cir. 2001).
To establish plain error, an appellant must make "four
showings: (1) that an error occurred (2) which was clear or
obvious and which not only (3) affected the [appellant's]
substantial rights, but also (4) seriously impaired the fairness,
integrity, or public reputation of judicial proceedings." Id. As
we explain below, the appellant fails to make even the first of
these showings.
2To be sure, defense counsel stated — after the court had
pronounced the sentence — that he wanted the record to reflect
that "we object [to] the Government's sentence on procedural, as
we stated before, and substantive grounds." For two reasons, this
objection does not alter the standard of review. First, "[a]
general objection to the procedural reasonableness of a sentence
is not sufficient to preserve a specific challenge to any of the
sentencing court's particularized findings." United States v.
Soto-Soto, 855 F.3d 445, 448 n.1 (1st Cir. 2017). Second, the
prior procedural objection to which defense counsel is referring
is the argument that the government should not be allowed to rely
on the appellant's illegal occupancy of public housing to increase
his sentence. That narrow objection cannot be read as a challenge
to the court's alleged lack of justification for the upward
variance.
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In assessing a sentencing court's explanation of an
upwardly variant sentence, we must "ask whether the [sentencing]
court reasonably explained the sentence in a manner that relies on
factors not adequately accounted for in the GSR." Díaz-Lugo, 963
F.3d at 156. If the sentencing court gives weight to a factor
previously accounted for in the guideline calculus to impose a
variant sentence, it must indicate why that factor deserves
additional weight. See United States v. Fields, 858 F.3d 24, 32
(1st Cir. 2017). But this is not a heavy burden: the sentencing
court's explanation of an upward variance need not "be precise to
the point of pedantry." United States v. Del Valle-Rodríguez, 761
F.3d 171, 177 (1st Cir. 2014). And "[w]here the record permits a
reviewing court to identify both a discrete aspect of an offender's
conduct and a connection between that behavior and the aims of
sentencing, the sentence is sufficiently explained to pass muster
under [18 U.S.C. §] 3553(c)." United States v. Fernández-Cabrera,
625 F.3d 48, 54 (1st Cir. 2010).
In the case at hand, the sentencing court concluded that
an upwardly variant sentence "reflects the seriousness of the
offense, promotes respect for the law, protects the public from
further crimes by [the appellant], and addresses the issues of
deterrence and punishment." The court also concluded that, in
varying upward, it could take into consideration that "there [were]
two weapons, one of which [was] an assault weapon." So, too, the
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court gave weight to the fact that this lethal weapon was found in
the bedroom of the appellant's two-year-old child. As there is a
close fit between these aspects of the appellant's conduct —
possession of multiple guns, possession of a military-style
assault rifle, and storage of that rifle in an inappropriate place
— and the seriousness of the offense, the upwardly variant sentence
is adequately explained.
In an effort to blunt the force of this reasoning, the
appellant proffers a related argument. He suggests that the
district court's explanation was deficient because the court
double-counted sentencing factors in order to justify the upward
variance. This argument, too, lacks force.
As a general matter, a sentencing court may not double-
count factors in justifying an upwardly variant sentence. See,
e.g., United States v. Rivera-Berríos, 968 F.3d 130, 136-37 (1st
Cir. 2020). We repeatedly have held, however, "that a sentencing
court may rely on a factor that is already included in the
calculation of the GSR to impose an upward . . . variance as long
as the court 'articulate[s] specifically the reasons that this
particular defendant's situation is different from the ordinary
situation covered by the guidelines calculation.'" Bruno-Campos,
978 F.3d at 806 (alteration in original) (quoting United States v.
Zapete-Garcia, 447 F.3d 57, 60 (1st Cir. 2006)). That is precisely
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the situation here: the guidelines do not fully account for any
of the aggravating factors on which the district court relied.
The applicable guideline — like the statute of
conviction itself, see 18 U.S.C. § 924(c)(1)(A) — requires the
possession of only a single firearm in connection with a drug-
trafficking crime. See USSG §2K2.4(b). Here — as the sentencing
court noted — the appellant possessed two guns. When a sentencing
guideline only accounts for one gun, the presence of multiple guns
is a valid basis upon which to predicate an upward variance. See,
e.g., Bruno-Campos, 978 F.3d at 806; Díaz-Lugo, 963 F.3d at 155.
In addition, neither the fact that one of the guns was a military-
style assault weapon nor the fact that the appellant was storing
that rifle in his minor child's bedroom was in any way accounted
for in constructing the GSR.
That ends this aspect of the matter. There was no
procedural error, plain or otherwise.3
3 The appellant's brief suggests that the sentencing court
erred by relying inappropriately on two prior arrests in
considering the section 3553(a) factors. See generally Díaz-Lugo,
963 F.3d at 153 (explaining that "a sentencing court [may not]rely
on an arrest record as evidence of a defendant's conduct in the
absence of some reliable indication that the underlying conduct
actually occurred"). Because that suggestion is unaccompanied by
any developed argumentation, we deem it waived. See United States
v. Zannino, 895 F.2d 1, 17 (1st Cir. 1990).
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B. Claim of Substantive Unreasonableness.
This brings us to the appellant's claim of substantive
unreasonableness. The claim is preserved, see Holguin-Hernandez
v. United States, 140 S. Ct. 762, 766-67 (2020), and we review it
for abuse of discretion, see Bruno-Campos, 978 F.3d at 808.
"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)). In any given case, "there is not a single reasonable
sentence but, rather, a range of reasonable sentences." Martin,
520 F.3d at 92; see Clogston, 662 F.3d at 592. Our role is "to
determine whether the sentence falls within this broad universe."
United States v. Rivera-Morales, 961 F.3d 1, 21 (1st Cir. 2020);
see Martin, 520 F.3d at 92. In making this determination, "we
cannot substitute our judgment of the appropriate sentence for
that of the sentencing court; to the contrary, we must accord
significant deference to the court's informed determination that
the section 3553(a) factors justify the sentence imposed." Rivera-
Morales, 961 F.3d at 21.
When all is said and done, the distinguishing
characteristics of a substantively reasonable sentence are "a
plausible rationale" and "a defensible result." Id.; see United
States v. Vargas-García, 794 F.3d 162, 167 (1st Cir. 2015). We
have employed these characteristics in probing a broad spectrum of
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sentences, including upwardly variant sentences. See, e.g.,
Bruno-Campos, 978 F.3d at 809-10; Rivera-Morales, 961 F.3d at 21-
22. When we employ them here, there is an obvious overlap with
what we already have said: an adequate explanation for an upward
variance and a plausible rationale for that variance are almost
always two sides of the same coin. See Vargas-García, 794 F.3d at
167 (discussing similarity).
Because that is the case here, we shall be brief. As
said, the sentencing court based the upwardly variant sentence
mainly on three factors: the appellant's possession of two guns,
the fact that one of those guns was a military-style assault rifle,
and the storage of the assault rifle in the bedroom of the
appellant's minor child. See supra Part II(A). According these
facts due weight, the court's rationale was plausible.
To cinch the matter, we conclude that the sentence
heralded a defensible result. The upward variance was twelve
months over the top of the GSR — and we have approved steeper
variances where a defendant, charged with a similar offense,
possessed more than one firearm. See, e.g., Díaz-Lugo, 963 F.3d
at 157-58 (affirming twenty-three-month upward variance).
Moreover, the situation here was exacerbated because the guideline
calculation also did not account for the important fact that the
appellant possessed a military-style assault rifle. Cf. United
States v. Gallardo-Ortiz, 666 F.3d 808, 816, 818 (1st Cir. 2012)
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(affirming nineteen-month upward variance based partially on
possession of an automatic weapon). Finally, the appellant's
situation was further exacerbated because he threw safety concerns
to the wind and endangered his two-year-old child.
In federal criminal sentencing, as in life, much depends
on context. When viewed in the real-world context of the
appellant's actions, the length of the challenged sentence is
readily defensible. Coupling that fact with the presence of a
plausible sentencing rationale, we find the sentence to be
substantively reasonable.
III. CONCLUSION
We need go no further. For the reasons elucidated above,
the challenged sentence is
Affirmed.
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