United States v. Sosa-Gonzalez ( 2018 )

United States Court of Appeals
For the First Circuit
No. 17-2005
UNITED STATES OF AMERICA,
Appellee,
v.
OMAR SOSA-GONZÁLEZ,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Francisco A. Besosa, U.S. District Judge]
Before
Howard, Chief Judge,
Lynch and Thompson, Circuit Judges.
Luis A. Guzmán Dupont on brief for appellant.
Mariana E. Bauzá-Almonte, Assistant United States Attorney,
Steven Liong-Rodríguez, Special Assistant United States Attorney,
and Rosa Emilia Rodríguez-Vélez, United States Attorney, on brief
for appellee.
August 14, 2018
LYNCH, Circuit Judge. This is a sentencing appeal. Omar
Sosa-González ("Sosa") pleaded guilty to one count of being a felon
in possession of a firearm and ammunition and to one count of
possession of a machine gun, in violation of 18 U.S.C. § 922(g)(1)
and 18 U.S.C. § 922(o) respectively. Sosa challenges his sixty-
six month sentence on procedural and substantive reasonableness
grounds. We affirm the sentence.
I.
The background facts are these. On March 13, 2017,
agents of the Puerto Rican Police Department ("PRPD") were told
that a man -- later identified as Sosa -- had been seen carrying
a firearm in public. An agent of the PRPD then surveilled Sosa's
residence on March 15 and 17, and saw Sosa carrying a handgun while
Sosa walked from his car to his residence. PRPD agents then
executed a search warrant on Sosa's residence on March 28, 2017.
This search uncovered a loaded AK-47 rifle and 28 rounds
of 7.62 caliber ammunition in Sosa's room. After knowingly waiving
his rights, Sosa told the agents that the rifle belonged to him
and that no other members of his family knew about his possession
of the rifle. Sosa also told agents that the rifle was fully
automatic.
Further police investigation determined that: the rifle
was modified to shoot more than one round of ammunition, without
manual reloading, by a single function of the trigger; Sosa had
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been convicted of crimes punishable by terms of imprisonment
exceeding one year previously; and the rifle and ammunition had
not been manufactured in Puerto Rico. The modification of the
rifle made it qualify as a machine gun under 18 U.S.C. § 922(o).
In April 2017, a grand jury in the district of Puerto
Rico indicted Sosa for being a felon in possession of a firearm
and ammunition, in violation of 18 U.S.C. § 922(g)(1), and for
possession of a machine gun, in violation of 18 U.S.C. § 922(o).
Pursuant to a plea agreement, Sosa stipulated to the
facts discussed here, and agreed to plead guilty to one count of
being a felon in possession of a firearm and ammunition and to one
count of possession of a machine gun. The sentencing calculation
in the plea agreement started with a Base Offense Level of 22,
coupled with a three-level reduction for timely acceptance of
responsibility.
There was no stipulation as to Sosa's Criminal History
Category. Sosa had six state-level convictions in Puerto Rico,
including for: unlicensed firearm possession (six month sentence),
unlawful ammunition possession (three year and one day sentence),
two counts of possession of controlled substances (twenty-four
month sentence), and two counts of conspiracy to possess with
intent to distribute controlled substances (thirty month
sentence).
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The parties agreed that each would seek a sentence within
the Guidelines sentencing range ("GSR") for a Total Offense Level
("TOL") of 19 and the relevant Criminal History Category. Sosa
agreed to waive his right to appeal if the district court imposed
a sentence of fifty-seven months or less, and acknowledged that
the district court could, in its discretion, impose a sentence up
to the statutory maximum for each offense.
The statutory maximum for both a violation of 18 U.S.C.
§ 922(g)(1), being a felon in possession of a firearm and
ammunition, and for a violation of 18 U.S.C. § 922(o), possession
of a machine gun, is: an imprisonment term of not more than ten
years, 18 U.S.C. § 924(a)(2); supervised release of not more than
three years, 18 U.S.C. § 3583(b)(2); and a fine of not more than
$250,000, 18 U.S.C. § 3571(b)(3).
The Presentence Investigation Report ("PSR") noted
Sosa's six prior convictions related to firearms and drug offenses.
These convictions led to a criminal history score of nine, and a
Criminal History Category of IV. Between this category and the
TOL, the calculated GSR was forty-six to fifty-seven months. Sosa
did not object the PSR, stating that "it reflects completely and
fully Mr. Omar Sosa's situation as to his life, careers, education,
substance abuse, [how] he was raised, and . . . the facts of the
case."
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Sosa then requested a sentence of forty-six months due
to, inter alia, Sosa's repentance, his claim of possessing the
rifle due to fear of an unidentified person who had escaped from
jail, and his desire to better himself by attending drug treatment
and becoming certified as a barber in prison.
The government requested a sentence of fifty-seven
months due to, inter alia, the "serious nature and circumstances
of the offenses," the dangerousness of machine guns, Sosa's
criminal history and use of illegal drugs, and his sporadic
employment.
The district court determined that the PSR had been
calculated accurately. The court then imposed a sentence above
the GSR: sixty-six months imprisonment for each count, to be served
concurrently, and three years of supervised release. The court
explained its reasons for this sentence. Sosa objected generally
that this sentence "is unreasonable," and timely appealed.
II.
The parties agree that the waiver of appeal provision in
the plea agreement is inapplicable, because the sentence given was
longer than the agreed-to range.
We generally review claims of sentencing error for
reasonableness under an abuse of discretion standard. See Gall v.
United States, 552 U.S. 38, 41 (2007); United States v. Soto-Soto,
855 F.3d 445, 448 (1st Cir. 2017). Our analysis has two parts:
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"we first determine whether the sentence imposed is procedurally
reasonable and then determine whether it is substantively
reasonable." United States v. Clogston, 662 F.3d 588, 590 (1st
Cir. 2011). In this analysis, "[w]e review the district court's
interpretation of the guidelines de novo and its fact finding for
clear error." United States v. Reyes-Rivera, 812 F.3d 79, 85 (1st
Cir. 2016).
When a defendant does not raise a procedural objection
at sentencing, the review is instead for plain error.1 Id. Here,
Sosa did not preserve his procedural objection. Sosa stated
generally that "we object as to the sentence because we believe it
is unreasonable." Sosa made no more specific objection. "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. To preserve a claim
of error . . ., an objection must be sufficiently specific to call
the district court's attention to the asserted error." Soto-Soto,
855 F.3d at 448 n.1.
1 To prevail under this demanding standard, an appellant
must demonstrate "(1) that an error occurred (2) which was clear
or obvious and which not only (3) affected the defendant's
substantial rights, but also (4) seriously impaired the fairness,
integrity, or public reputation of judicial proceedings."
United States v. Rondón-García, 886 F.3d 14, 20 (1st Cir. 2018)
(quoting United States v. Cortés-Medina, 819 F.3d 566, 569 (1st
Cir. 2016)).
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But even reviewed under the more defendant-friendly
abuse of discretion standard, Sosa cannot meet his burden.
A. Procedural Reasonableness
Sosa asserts that the district court did not "consider
all the relevant § 3553(a) factors," and did not adequately explain
the reasons for the sentence. He further protests that the
district court "did not give . . . adequate consideration to the
facts of the case and the Defendant-Appellant's characteristics,
and, instead, focused primarily on the nature of the offense to
calculate the term of the imprisonment." Relatedly, Sosa stressed
at the sentencing hearing that he "had the weapon because he felt
threatened by someone . . . [and] feared for his life," but he did
not provide any information whatsoever about this threat.
A district court's sentence is procedurally reasonable
if:
the district court committed no significant
procedural error, such as failing to calculate
(or improperly calculating) the Guidelines
range, treating the Guidelines as mandatory,
failing to consider the § 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.
United States v. Martin, 520 F.3d 87, 92 (1st Cir. 2008) (quoting
Gall, 552 U.S. at 51).
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As to the consideration and balance of the § 3553(a)
factors, which Sosa primarily relies upon in his appeal, a district
court "need not verbalize its evaluation of each and every section
3553(a) factor." Reyes-Rivera, 812 F.3d at 89. And we have made
clear in several cases that "a sentencing court is not required to
address the § 3553(a) factors one by one, in some sort of rote
incantation when explicating its sentencing decision, nor must the
court afford each of the § 3553(a) factors equal prominence."
United States v. Vázquez-Vázquez, 852 F.3d 62, 66 (1st Cir. 2017)
(quoting United States v. Pulido, 566 F.3d 52, 64 (1st Cir. 2009)).
Contrary to Sosa's assertion, the district court
expressly discussed, and gave more than sufficient consideration
to, several § 3553(a) factors.
The district court first stated directly that it
considered the sentencing factors "set forth in Title 18, United
States Code section 3553(a)." The district court clearly laid out
Sosa's prior convictions "for being in possession of an unlicensed
firearm, for unlawful possession of ammunition, of conspiracy to
possess with intent to distribute controlled substances, and of
possession of controlled substances, all by the Carolina Superior
Court."
The district court then discussed and considered Sosa's
relevant history and characteristics, including his age,
education, employment history, and drug use. Next, the district
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court discussed the nature and circumstances of the offense,
including that the firearm in Sosa's possession had "a 30-round
high capacity magazine containing 28 rounds of 7.62 caliber
ammunition" and that the rifle had been "modified to shoot
automatically." The district court also noted that machine guns
are "dangerous and unusual weapons . . . not typically possessed
by law-abiding citizens for lawful purposes." The district court
further cited a Ninth Circuit case, United States v. Henry, 688
F.3d 637 (9th Cir. 2012), that examined the danger of machine guns,
which "can fire more than 1,000 rounds a minute, which permits a
shooter to kill dozens of people within a matter of seconds,
usually innocent bystanders."
Accordingly, the district court determined that neither
the government's nor Sosa's suggested sentence adequately
"reflects the serious[ness] of the offense, . . . promotes respect
for the law, . . . or protects the public from further crimes by
Mr. Sosa." The district court also mentioned the need for proper
"deterrence and punishment."
Given this ample consideration of § 3553(a) factors by
the district court, Sosa's suggestion that the district court "did
not give . . . adequate consideration to the facts of the case and
the Defendant-Appellant's characteristics" indicates that Sosa's
"real complaint is not that the [district] court failed to consider
the section 3553(a) factors, but that the court did not assign the
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weight to certain factors that [Sosa] thought appropriate." United
States v. Ruiz–Huertas, 792 F.3d 223, 227 (1st Cir. 2015).
Needless to say, this does not constitute abuse of discretion.
B. Substantive Reasonableness
Sosa also challenges the substantive reasonableness of
his sentence. He argues generally that the district court
"fail[ed] to consider mitigating factors," and specifically that
the district court "insufficiently considered . . . the 'history
and characteristics of the defendant.'" Sosa mentions no other
mitigating factors specifically.2
We typically review the substantive reasonableness of a
sentence for abuse of discretion, considering the totality of the
circumstances. See Ruiz–Huertas, 792 F.3d at 226. Sosa's claim
is waived, however, because Sosa makes no specific argument that
demonstrates how different weighing or consideration of
potentially mitigating factors would have changed the outcome of
the case. Even if we were to excuse Sosa's waiver, the sentencing
court did not abuse its discretion in sentencing him.
A sentence is substantively reasonable if there is "a
plausible sentencing rationale and a defensible result." Martin,
520 F.3d at 96. The district court met these requirements by
2 Sosa also rehashes his argument that the 18 U.S.C.
§ 3553(a) factors were inadequately explained. As articulated
above, the district court suitably explained its reasoning under
these factors.
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considering, inter alia, Sosa's criminal history, his drug use,
and the dangerousness of machine guns. After all, "[t]hat the
sentencing court chose not to attach to certain of the mitigating
factors the significance that the appellant thinks they deserved
does not make the sentence unreasonable." Clogston, 662 F.3d at
593.
"There is no one reasonable sentence in any given case
but, rather, a universe of reasonable sentencing outcomes." Id.
at 592. The district court's sixty-six month sentence --
representing a modest upward variance from the GSR -- was well
within this universe of the reasonable.
III.
For the reasons set forth above, we affirm Sosa's
sentence.
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