United States v. Nieves-Mercado , 847 F.3d 37 ( 2017 )

United States Court of Appeals
For the First Circuit
No. 15-1627
UNITED STATES OF AMERICA,
Appellee,
v.
JOSHUA J. NIEVES-MERCADO,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Aida M. Delgado-Colón, U.S. District Judge]
Before
Howard, Chief Judge,
Thompson and Kayatta, Circuit Judges.
Cathryn A. Neaves on brief for appellant.
Rosa Emilia Rodríguez-Vélez, United States Attorney, Mariana
E. Bauzá-Almonte, Assistant United States Attorney, Chief,
Appellate Division, and Francisco A. Besosa-Martínez, Assistant
United States Attorney, on brief for appellee.
January 30, 2017
KAYATTA, Circuit Judge. The district court sentenced
defendant Joshua Nieves-Mercado ("Nieves") to 60 months'
imprisonment, a term that exceeded by 9 months the top of the
guidelines sentencing range and by 14 months the government's
recommendation pursuant to a plea agreement. Nieves appeals,
arguing that the court abused its discretion by considering
unreliable evidence, by varying upward based on information
already factored into the guidelines sentencing range, and by
ignoring "the significant mitigating factor" of his youth.
According to Nieves, these errors rendered his sentence
procedurally and substantively unreasonable. We disagree and so
affirm.
I.
We draw the following facts from the plea agreement and
change-of-plea colloquy, the undisputed portions of the
presentence investigation report ("PSR"), and the sentencing
hearing. See United States v. Rivera-González, 776 F.3d 45, 47
(1st Cir. 2015).
The criminal conduct at issue took place in the early
morning hours of March 15, 2013. Nieves and two other men were
traveling westbound on the highway between Río Grande and Carolina
in Puerto Rico. Their vehicle approached an intersection and
pulled alongside a red Ford Explorer stopped at the light. Nieves
exited the vehicle and carried "a long pointed tip object" to the
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driver's side of the Explorer. He first ordered the driver to get
out. When she did not immediately comply, he opened the driver's
side door, yanked the driver from her seat, and pushed her toward
the highway lane divider. Nieves drove away in the Explorer, and
the vehicle in which he arrived likewise fled the scene.
Hours later, reports surfaced of three armed individuals
disassembling a red Ford Explorer in Canóvanas. Police officers
responded to the scene and observed two men removing parts from
the Explorer. The officers took both men into custody. Their
investigation confirmed that the Explorer was the vehicle
carjacked hours earlier. It also led them to Nieves, whom federal
officers arrested the following day. Nieves waived his
constitutional rights and admitted to his participation in the
carjacking.
On March 20, 2013, a grand jury returned a one-count
indictment charging Nieves and the two other men with carjacking
and aiding and abetting in violation of 18 U.S.C. § 2119(1).
Nieves pled guilty to that charge, pursuant to a plea agreement
with the government, on September 23, 2013. The agreement
obligates the government to recommend a sentence in "the middle
range of the applicable guideline," with no stipulation as to
Nieves's criminal history category. It also includes a sentencing
guidelines calculation table that lists Nieves's total offense
level as twenty-two, reflecting the following: a base offense
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level of twenty, U.S. Sentencing Guidelines Manual § 2B3.1(a);
plus a two-level enhancement because the offense involved
carjacking, id. § 2B3.1(b)(5); plus a three-level enhancement
because Nieves brandished a dangerous weapon, id.
§ 2B3.1(b)(2)(E); less three levels because Nieves accepted
responsibility, id. § 3E1.1. The parties agreed to seek no further
adjustment to, or departure from, the base offense level.
The timely produced PSR mirrors the offense level
computation in the plea agreement, finds a criminal history score
of zero, and computes Nieves's criminal history category as I.
Additionally, the PSR provides a detailed description of the
offense conduct according to the reports of investigation. As
relevant to this appeal, the PSR states that FBI agents interviewed
Nieves's codefendants on the date of their arrest. Both admitted
their role in the carjacking and subsequent disassembling of the
Explorer, explaining that Nieves approached one of the
codefendants after the carjacking, told him where to find the
Explorer, and suggested that he remove and sell the radiator to
satisfy a debt Nieves owed to that codefendant.
The sentencing hearing took place on April 29, 2015.
The district court asked defense counsel whether he had read and
examined the PSR. Defense counsel responded that he had and lodged
one objection unrelated to the issues on appeal. Defense counsel
also confirmed that he had explained the PSR to his client and
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that they had discussed it together. He then addressed the court,
providing context for a juvenile adjudication briefly referenced
in the PSR, and noting Nieves's compliance with the terms of his
probation during a previous period of supervision. He also
referenced literature calling into question the positive
correlation between incarceration and deterrence, and he reported
statistics indicating a higher percentage of guidelines sentences
in the District of Puerto Rico compared to the national average.
Finally, defense counsel argued that offender characteristics
including age, employment, and education made Nieves's potential
for rehabilitation "tremendous" and his risk of recidivism "low."
The court then heard from Nieves. In his address to the
court, he stated, "I must apologize to the victims, because what
happened was a momentary thing and I ask them to forgive me." The
court responded by questioning Nieves's assertion:
Mr. Nieves, I think it is very good and proper for
you to ask the victims for forgiveness. However you
mentioned that this event and what transpired of you
committing this carjacking was . . . the result of a
spur of the moment thing. However, there is information
to the effect that whatever the situation was between
you and your two codefendants and whether the three of
you were arguing or not, at the time in which the vehicle
is found you had stated that you had a debt, you owed
money to a codefendant of yours and you told him, take
the car, sell the parts and use that to cover for my
debt. So it had a purpose, it served a purpose.
Defense counsel interjected that the information on which the court
relied "did not come from the defendant" and was instead "an
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allegation from the other codefendant." He explained that,
although Nieves accepted responsibility for his participation in
the carjacking, he had a different account of his motivation and
his conduct following the carjacking. Defense counsel questioned
the credibility of the allegation reported in the PSR, arguing
that it was an "improper factor for the Court to consider" because
the court lacked "any elements on the record before it to determine
if the codefendants [sic] statement is true and he is not trying
to minimize his participation or if our client [sic] version is
true and he is trying to minimize his participation." The court
made no explicit ruling with respect to the information, instead
indicating that it would hear from the government.
After hearing from the government, which did not comment
on the disputed evidence, the district court imposed its sentence.
It agreed with the total offense level listed in the plea agreement
of twenty-two and, applying a criminal history category of I,
calculated the applicable guidelines sentencing range as 41 to 51
months of imprisonment. See U.S. Sentencing Guidelines Manual
ch. 5, pt. A (Sentencing Table). Turning to the sentencing factors
enumerated in 18 U.S.C. § 3553(a), the court discussed "the history
and characteristics of the defendant," id. § 3553(a)(1), including
Nieves's age, education, employment history, family situation,
history of drug abuse, and criminal record. The court also
considered "the nature and circumstances of the offense," id.,
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such as the events immediately preceding the carjacking and the
injury suffered by the victim. It imposed an upwardly variant
sentence of 60 months' imprisonment, followed by a term of
supervised release not challenged on appeal.
Defense counsel asked the court to reconsider the
sentence, noting that it exceeded the government's recommendation
and arguing that the additional prison time did not further the
goals of punishment set forth in § 3553(a)(2). The court, in
denying reconsideration, emphasized that Nieves's actions evinced
his "lack of maturity" and "disregard for human life and disregard
for others." The court also stated,
I still have my doubts as to whether this was a way or
mechanism of paying a debt. I have to base this on
information that is available, that is relevant to the
case, given by a person against his own interest per say
[sic] in terms of explaining how he was there and why he
was there and how he got the vehicle and why this person
got to be related.
The court further explained that it "factored in" several
considerations, including "his prior record of delinquency, the
seriousness of this offense[, and] . . . the leading role that he
had in being the one that decided and instructed the other ones."
II.
Nieves advances several arguments on appeal.1 First, he
argues that the district court impermissibly considered unreliable
1Nieves's plea agreement contains a waiver of appeal. The
government agrees with Nieves that the waiver does not bar this
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evidence in determining his sentence. Next, he contends that the
court justified the upward variance with factors the guidelines
sentencing range already took into account. Additionally, he
claims that the court overlooked the importance of his youth, which
Nieves declares a "significant mitigating factor." According to
Nieves, these errors produced a substantively unreasonable
sentence.
A.
"We review sentencing decisions imposed under the
advisory Guidelines, whether outside or inside the applicable
[guidelines sentencing range], for reasonableness." United States
v. Pantojas-Cruz, 800 F.3d 54, 58 (1st Cir. 2015). Although we
customarily apply the abuse of discretion standard to assess
reasonableness, "the plain error standard supplants the customary
standard of review" when the defendant neglects to preserve an
objection before the district court. United States v. Dávila–
González, 595 F.3d 42, 47 (1st Cir. 2010). The government contends
that the plain error standard applies to certain of Nieves's
arguments on appeal, but we sidestep that question because Nieves's
arguments fail under even the more favorable abuse of discretion
standard.
appeal because the court did not sentence Nieves according to the
agreement's recommendations.
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We review sentences imposed under the advisory
guidelines in two phases. In the first phase, we "examine whether
the district court committed any procedural missteps." United
States v. Rossignol, 780 F.3d 475, 477 (1st Cir. 2015). Such
missteps include "failing to calculate (or improperly calculating)
the Guidelines range, treating the Guidelines as mandatory,
failing to consider the section 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. Rivera–
Moreno, 613 F.3d 1, 8 (1st Cir. 2010) (quoting Gall v. United
States, 552 U.S. 38, 51 (2007)). We have described our abuse of
discretion standard in this context as "multifaceted," as we apply
clear error review to factual findings, de novo review to
interpretations and applications of the guidelines, and abuse of
discretion review to judgment calls. See United States v.
Serunjogi, 767 F.3d 132, 142 (1st Cir. 2014) (citing United States
v. Leahy, 668 F.3d 18, 21 (1st Cir. 2012)).
In the second phase of our review, we "ask whether the
sentence is substantively reasonable." Rossignol, 780 F.3d at
477. Our inquiry "focuses on the duration of the sentence in light
of the totality of the circumstances." United States v. Del Valle-
Rodríguez, 761 F.3d 171, 176 (1st Cir. 2014). It acknowledges
that, although the "sentencing court is under a mandate to consider
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a myriad of relevant factors, . . . the weighting of those factors
is largely within the court's informed discretion." United States
v. Clogston, 662 F.3d 588, 593 (1st Cir. 2011). Our review demands
only "a plausible sentencing rationale and a defensible result."
United States v. Martin, 520 F.3d 87, 96 (1st Cir. 2008).
B.
Nieves's first argument concerns the PSR's report of a
statement made by one of Nieves's codefendants concerning the
reasons for disassembling the stolen car. Nieves argues that the
district court improperly relied on this out-of-court statement by
a codefendant to an FBI agent, whose report of the statement then
made it into the PSR. We agree with Nieves that the reported
statement can be seen as hearsay, and that the district court
relied on it, at least in part. Generally, though, "there is no
limitation on the information which a court may consider in
sentencing other than that the information bear sufficient indicia
of reliability to support its probable accuracy, and evidence not
ordinarily admissible under the rules of evidence at trial may be
considered." United States v. Berzon, 941 F.2d 8, 21 (1st Cir.
1991). Accordingly, district courts may rely on hearsay statements
that bear such indicia of reliability. See United States v.
Ramírez-Negrón, 751 F.3d 42, 52 (1st Cir.) ("Reliable hearsay is,
of course, admissible during sentencing proceedings."), cert.
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denied, 135 S. Ct. 276 (2014); U.S. Sentencing Guidelines Manual
§ 6A1.3 cmt. ("Reliable hearsay evidence may be considered.").
The report of the statement made by his codefendant was
disclosed to Nieves in the PSR. Nieves does not deny that the
statement was made, nor does he dispute the context in which it
was made. The nature and circumstances of the reported explanation
bolster its reliability. The codefendant made an inculpatory
statement to law enforcement on the date of his arrest. This was
not a statement attendant to plea bargaining, a context that
sharpens the codefendant's incentive to shift blame. Instead, it
was a near-contemporaneous confession that acknowledged the
codefendant's participation not only in the carjacking but also in
the additional criminal activity of disassembling the Explorer to
sell its parts. Furthermore, the codefendant's statement was
consistent with the actions of the codefendants immediately prior
to their apprehension by law enforcement: the codefendants had
removed one part from the Explorer, which they had placed in their
vehicle, and were working on removing the radiator when the police
detained them.
In these circumstances, we find no abuse of discretion
or legal error by the district court in relying on this evidence
at sentencing. See, e.g., United States v. Parra-Gonzalez, 329 F.
App'x 887, 889 (11th Cir. 2009) (per curiam) (citing United States
v. Gordon, 231 F.3d 750, 761 (11th Cir. 2000)) (finding no clear
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error in district court's reliance on codefendants' hearsay
statements, even where court did not explicitly address
reliability of statements at sentencing, because "hearsay
statements by [the] codefendants were supported by sufficient
indicia of reliability and [the defendant] had an opportunity to
rebut those statements"); United States v. Berry, 258 F.3d 971,
976–77 (9th Cir. 2001) (similarly finding no abuse of discretion
in district court's reliance on codefendants' hearsay statements,
even where court made no express findings regarding reliability,
given "external consistency" of statements).2
C.
Nieves next contends that, apart from the codefendant's
statement, the factors relied on by the district court to support
the variance "were reiterations of the factors already used to
calculate the [guidelines sentencing range]." According to
Nieves, the district court "pointed to no particular
2
Nieves does not argue that the district court failed to
resolve the dispute over this evidence or used an improper
procedure to do so. See Fed. R. Crim. P. 32(i)(3); U.S. Sentencing
Guidelines Manual § 6A1.3(a)–(b). We permit implicit reliability
determinations as to the evidence considered at sentencing where
the basis of the implicit determination is manifest. See United
States v. Van, 87 F.3d 1, 3 (1st Cir. 1996) ("Although explicit
resolution of disputed material facts is preferable, we have found
that the court implicitly resolved the facts when the court's
statements and the sentence imposed showed that the facts were
decided in a particular way."). Here, the district court expressly
found that the statement tended to inculpate the codefendant and
that it explained "how he was there and why he was there and how
he got the vehicle."
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characteristics of either the offense itself or [Nieves] that
justified an upward variance." Not so. The district court, before
imposing this above-guidelines sentence, discussed not only the
existence but also the nature of Nieves's criminal history. See
Del Valle-Rodríguez, 761 F.3d at 176 ("We have held that an upward
variance may be justified by, say, a finding that the defendant's
criminal history score underrepresents the gravity of his past
conduct, or by a finding that the [guidelines sentencing range]
underestimates the likelihood of recidivism." (citation omitted));
cf. United States v. Santa–Otero, 843 F.3d 547, 550–51 (1st Cir.
2016) (rejecting argument that district court double-counted
factor where offense level accounted for mere possession of weapon
yet district court based variance on circumstances attendant to
that possession). The district court seemed particularly troubled
that Nieves's criminal history began at a young age and that the
circumstances of the juvenile adjudication bore similarities to
the circumstances of this case insofar as Nieves, when upset or
emotional, resorted to aggression and violence. Additionally, the
district court discussed the emotional injury suffered by the
victim of the carjacking. Nieves does not explain how the
guidelines sentencing range accounted for that factor.
Nor do we find persuasive Nieves's argument that the
district court abused its discretion by giving short shrift to the
role of his youth in this offense and the juvenile offense.
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According to Nieves, although his counsel pointed to
neuroscientific evidence that "an adolescent is prone to
impulsive, rash behavior," the district court "essentially gave
this factor no weight in considering the sentence." Yet the
district court, before imposing its sentence, specifically noted
Nieves's age at the time of this offense and the juvenile offense.
Later, in response to the motion for reconsideration, the district
court stated that--even assuming "his frontal lobe has not
developed and he has not matured enough"--Nieves's actions
reflected not just a "lack of maturity" but also a "disregard for
human life and disregard for others." Thus, "[t]he defendant's
real complaint is not that the court overlooked [his youth] but
that it weighed th[at] factor[] less heavily than he would have
liked." Rivera-González, 776 F.3d at 50. However, "that type of
balancing is, within wide limits, a matter for the sentencing
court . . . [and t]hose wide limits were not exceeded, or even
closely approached, in this instance." Id. (citations omitted).
D.
Finding no procedural missteps, we consider Nieves's
final argument that his sentence is substantively unreasonable.
According to Nieves, his sentence lacks a "plausible rationale"
because "[t]he court simply gave no reason specific either to
[Nieves's] history or to the crime itself that justified" the
variance. We have already rejected this contention in finding
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that the district court gave reasons for its variance beyond those
factored into the guidelines sentencing range calculation--namely,
the particulars of Nieves's criminal history as well as the
emotional harm suffered by his victim. The district court's
articulation of those reasons was sufficiently clear, and it
reflected a "plausible, albeit not inevitable, view of the
circumstances sufficient to distinguish this case from the mine-
run of cases covered by the [guidelines sentencing range]." Del
Valle-Rodríguez, 761 F.3d at 177. We are satisfied that the
district court's upward variance of 9 months on top of a 41-to-
51-month range constitutes a "defensible result" in these
circumstances, see Martin, 520 F.3d at 96, and thus we find the
sentence substantively reasonable.
III.
For the foregoing reasons, we affirm Nieves's sentence.
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