United States v. Matos-De-Jesus ( 2017 )


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  •           United States Court of Appeals
    For the First Circuit
    No. 16-1695
    UNITED STATES OF AMERICA,
    Appellee,
    v.
    JOSÉ MATOS-DE-JESÚS,
    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,
    Selya and Lynch, Circuit Judges.
    Elizabeth A. Billowitz 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.
    May 5, 2017
    SELYA, Circuit Judge.   With respect to some firearms
    charges, the sentencing guidelines provide that if the offense of
    conviction involves three or more guns, the defendant's offense
    level is to be enhanced by a specified number of levels.    See USSG
    §2K2.1(b)(1).      Here, the offenses of conviction involved two
    firearms, and the sentencing court, recognizing that the guideline
    enhancement was inapplicable, considered the second firearm as an
    aggravating factor in imposing an upwardly variant sentence.
    In this appeal, defendant-appellant José Matos-de-Jesús
    argues, inter alia, that the sentencing guidelines already account
    for the presence of both guns and, therefore, that the sentencing
    court erred in considering his possession of the second gun as
    part of the groundwork for the upward variance.       Discerning no
    error, we affirm.
    The facts are straightforward.    In October of 2015,
    Puerto Rico police pulled over the appellant's car (which the
    appellant was driving) after noticing a problem with the license
    plate.    When a passenger opened the glove compartment to retrieve
    the registration, the officers spotted at least one loaded Glock
    magazine.     When queried, the appellant admitted that he did not
    have a firearms permit, and the officers ordered him out of the
    car.     As he stepped out, they removed a Glock pistol from his
    waistband.    The gun had been "chipped," that is, modified to fire
    automatically.
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    After a vehicle search, see United States v. Panitz, 
    907 F.2d 1267
    , 1271 (1st Cir. 1990) (discussing "vehicle exception" to
    warrant requirement), the police discovered a second Glock pistol
    (also "chipped"), four loaded high-capacity magazines, and more
    than 100 loose rounds of ammunition.       During the ensuing arrest,
    the appellant threatened to kill one of the arresting officers
    upon his release.
    In due course, a federal grand jury sitting in the
    District of Puerto Rico handed up an indictment charging the
    appellant with one count of possession of firearms by a convicted
    felon, see 
    18 U.S.C. § 922
    (g)(1), and one count of possession of
    machine guns, see 
    id.
     § 922(o).           Notably, each count of the
    indictment referenced the appellant's possession of both of the
    seized firearms.    The appellant entered a straight guilty plea to
    both counts.
    At sentencing, the court heard arguments of counsel and
    the   appellant's   allocution.     Without   objection,   it   set   the
    appellant's total offense level at 19, assigned him to criminal
    history category IV, and calibrated his guideline sentencing range
    at 46 to 57 months.    After mulling the sentencing factors limned
    in 
    18 U.S.C. § 3553
    (a), the court varied upward and imposed a 72-
    month term of immurement.    It explained that the upward variance
    reflected in significant part the appellant's possession of not
    one, but two, guns.     The court added, though, that the upwardly
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    variant sentence also took into account the presence of several
    other    aggravating         factors,    such     as   the   appellant's      extensive
    criminal history and the fact that he had threatened a police
    officer during his arrest.
    The    appellant       objected    to   his   sentence,     in    general
    terms, as both procedurally and substantively unreasonable.                            The
    district court overruled these objections.                        This timely appeal
    followed.
    Appellate review of claims of sentencing error entails
    a two-step pavane.            See United States v. Martin, 
    520 F.3d 87
    , 92
    (1st Cir. 2008).             Under this framework, we first address any
    assignments of procedural error.                 See 
    id.
         If the sentence passes
    procedural muster, we then address any challenge to its substantive
    reasonableness.            See 
    id.
         Here, the appellant advances claims of
    both procedural and substantive error.
    The appellant's most loudly bruited procedural claim is
    that the sentencing court blundered when it used his possession of
    two firearms as part of the groundwork for an upward variance.                         He
    starts    with       the    uncontroversial       premise     that   the     sentencing
    guidelines direct courts to add additional levels to a defendant's
    offense level when the defendant possesses three or more guns in
    connection with the offense of conviction.                   See USSG §2K2.1(b)(1).
    With    this    premise      as   a    starting    point,    he    asserts      that   the
    guidelines treat the "possession of one or two firearms . . . the
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    same," and insists, a fortiori, that the second gun already was
    factored into his guideline range.           Building on this less-than-
    sturdy   foundation,     he   concludes    that   the    sentencing      court's
    decision     to   vary   upward   based     on    that   fact    amounted       to
    impermissible double-counting.           See United States v. Sepúlveda-
    Hernández, 
    817 F.3d 30
    , 34-35 (1st Cir. 2016).
    The appellant objected below on procedural grounds, but
    his objection was altogether generic, not specific.                   He did not
    allude to, or even mention, the specific claim of error that he
    now seeks to raise.           "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, ___ F.3d ___, ___ n.1 (1st
    Cir. 2017) [No. 16-1444, slip op. at 6 n.1] (collecting cases);
    accord United States v. Ahrendt, 
    560 F.3d 69
    , 76 (1st Cir. 2009)
    (holding   that    because    "generic    objections"     do    not    afford   a
    sentencing court sufficient notice, such objections are inadequate
    to preserve specific claims of sentencing error).                     Hence, our
    review of this claim is for plain error.             Under that formidable
    standard, the appellant must show "(1) that an error occurred (2)
    which was clear or obvious and which not only (3) affected [his]
    substantial rights, but also (4) seriously impaired the fairness,
    integrity, or public reputation of judicial proceedings."                 United
    States v. Duarte, 
    246 F.3d 56
    , 60 (1st Cir. 2001). The appellant's
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    challenge fails at the first step of plain error review: there was
    no error, plain or otherwise.
    The   claim   is   wrong   on   its    face.     The    sentencing
    guidelines make no provision for the presence of two guns during
    the commission of an offense under either 
    18 U.S.C. § 922
    (g)(1) or
    
    18 U.S.C. § 922
    (o).         Thus, taking the second gun into account as
    part of the mix of factors to be considered at sentencing cannot
    conceivably be double-counting.1 See Sepúlveda-Hernández, 817 F.3d
    at 34-35.       Moreover, the presence of that gun was obviously
    relevant to the nature of the crime.             Consequently, the district
    court did not err in giving weight to that fact.
    In this regard, we find instructive the Supreme Court's
    recent decision in Dean v. United States, 
    137 S. Ct. 1170
     (2017).
    There, the Court considered the degree of discretion afforded to
    a judge called upon to impose sentence for a violation of 
    18 U.S.C. § 924
    (c),    which   creates    a   separate      offense   for    the   use   or
    possession of a firearm in connection with a drug-trafficking crime
    and requires a mandatory minimum sentence for the firearm offense.
    This mandatory minimum sentence must be imposed consecutively to
    any sentence imposed for the underlying crime.                  The Court was
    1We hasten to add that, even if double-counting occurred, it
    would not necessarily require vacating the appellant's sentence.
    See, e.g., United States v. Zapata, 
    1 F.3d 46
    , 47 (1st Cir. 1993)
    (noting that, "[i]n the sentencing context, double counting is a
    phenomenon that is less sinister than the name implies" and is
    often "perfectly proper").
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    confronted with the question of whether, in calculating a sentence
    for the underlying offense, the sentencing judge must close his
    eyes to the fact that the defendant will also serve a consecutive
    mandatory minimum sentence for the firearms offense.            See Dean,
    137 S. Ct. at 1174.          The Court held that, in the absence of
    statutory language directing the sentencing judge to ignore the
    requirement for a consecutive mandatory minimum sentence, the
    judge may consider that fact in his sentencing calculus.          See id.
    at 1175-78.
    The Court made pellucid that sentencing judges "have
    long enjoyed discretion in the sort of information they may
    consider when setting an appropriate sentence."              Id. at 1175.
    Without an express prohibition to the contrary, a sentencing judge
    may therefore consider any factor that reasonably relates to the
    concerns limned in 
    18 U.S.C. § 3553
    (a).        See 
    id. at 1175-76
    .
    As applied here, the reasoning of Dean defenestrates the
    appellant's argument that the court below could not take into
    account the second gun in its application of the section 3553(a)
    factors.     Neither a federal criminal statute nor the sentencing
    guidelines     forbids   a   sentencing    court   from   considering   the
    presence of a second gun when imposing sentence for either a
    section 922(g)(1) or a section 922(o) offense. We hold, therefore,
    that the court below acted well within the encincture of its
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    discretion    in   considering    that   fact   when    it   sentenced   the
    appellant.
    Next, the appellant suggests that the sentencing court
    committed procedural error by inadequately explaining its reasons
    for imposing the upward variance.2         This specific suggestion is
    made for the first time on appeal and, thus, engenders plain error
    review.   See United States v. Bermúdez-Meléndez, 
    827 F.3d 160
    , 164
    (1st Cir. 2016).    Plain error, though, is plainly absent.
    To be sure, a sentencing court's burden to explain its
    sentence increases the more that it deviates from the guideline
    range.    See Martin, 
    520 F.3d at 91
    .      Even so, a variant sentence
    may be "based on a complex of factors whose interplay and precise
    weight cannot . . . be precisely described."           
    Id. at 92
     (citation
    omitted).    That is the situation here; and given this reality, the
    sentencing court had no need to "be precise to the point of
    pedantry."    United States v. Vargas-García, 
    794 F.3d 162
    , 166 (1st
    Cir. 2015) (quoting United States v. Turbides-Leonardo, 
    468 F.3d 34
    , 40 (1st Cir. 2006)).         In such circumstances, it ordinarily
    2 In part, the appellant argues that, because the sentencing
    court relied on the presence of the second gun — which he contends
    was already factored into his guideline range — the court was
    obligated to provide an additional explanation for the upward
    variance.   See United States v. Zapete-Garcia, 
    447 F.3d 57
    , 60
    (1st Cir. 2006).    That argument fails for the reasons already
    discussed, and we make no further reference to it.
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    suffices    to    satisfy    the   burden     of   explanation    if   the   court
    identifies the primary reasons underpinning its decision.                See 
    id.
    That burden was carried here.                Before imposing the
    challenged sentence, the court below discussed the appellant's
    lengthy criminal history, which included a conviction for second-
    degree murder and an array of weapons and drug offenses. The court
    bemoaned the fact that the appellant had made no apparent effort
    to "liv[e] a law abiding life."               It added that even though "he
    passed most of his adult life in jail," he continued to reoffend.
    So, too, the court indicated that it was giving weight to the fact
    that the appellant had threatened a police officer at the time of
    his arrest.        Last — but surely not least — the court voiced
    particular concern about the fact that the appellant, a previously
    convicted felon, possessed two automatic weapons.                The court found
    this fact especially disconcerting due to the prevalence of gun
    violence in Puerto Rico and the Commonwealth's rising murder rate.
    See United States v. Flores-Machicote, 
    706 F.3d 16
    , 22-23 (1st
    Cir. 2013) (approving use of similar approach).               Given the clarity
    of these statements, we find the sentencing court's explanation of
    the appellant's variant sentence to be more than adequate on plain
    error review.
    This    brings    us   to   the     appellant's   claim,   preserved
    below,     that    his      sentence     is     substantively     unreasonable.
    Specifically, he submits that his background did not warrant the
    - 9 -
    substantial upward variance and that the court misjudged the
    likelihood that he would reoffend.              Our review is for abuse of
    discretion.       See Gall v. United States, 
    552 U.S. 38
    , 51 (2007);
    Martin, 
    520 F.3d at 92
    .
    As a general matter, a reviewing court is not at liberty
    to second-guess a sentencing court's reasoned judgments about
    matters committed to the sentencing court's discretion. See United
    States v. Clogston, 
    662 F.3d 588
    , 593 (1st Cir. 2011).               Consistent
    with this principle, the substantive reasonableness of a sentence
    turns on whether the sentencing court articulated "a plausible
    sentencing rationale" and reached "a defensible result."                Martin,
    
    520 F.3d at 96
    .         There is more than one reasonable sentence in
    virtually any case, and we will vacate a procedurally correct
    sentence as substantively unreasonable only if it lies "outside
    the   expansive        boundaries"   that     surround     the   "universe"   of
    reasonable sentences.         
    Id. at 92
    .      This is a highly deferential
    standard of review, and it applies full-bore to non-guideline
    sentences.     See Vargas-García, 794 F.3d at 167.
    As   we    already   have   explained,      the   sentencing   court
    expounded upon the appellant's extensive and violent criminal
    history, his predilection to reoffend, and the gravity of the
    offenses of conviction (which was particularly concerning given
    the community in which they took place).           The court also noted the
    presence of the second gun and the cascade of bullets found in the
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    appellant's       car.   We    think    that     these   observations,   taken
    collectively, comprise a plausible sentencing rationale.
    The sentencing court also reached a defensible result.
    While the sentence surpassed the top of the guideline range, "even
    a substantial variance does not translate, ipso facto, into a
    finding that the sentence is substantively unreasonable."             Flores-
    Machicote, 706 F.3d at 25.             Context matters, see id., and the
    sentence in this case is responsive to the nature and circumstances
    of the offense, the characteristics of the offender, the importance
    of deterrence, and the need for condign punishment.               In light of
    the facts and circumstances previously discussed, there is no
    principled way that we can say that a 72-month sentence falls
    outside     the    expansive   universe     of    substantively    reasonable
    sentences.
    We need go no further. For the reasons elucidated above,
    the challenged sentence is
    Affirmed.
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