United States v. Ortiz-Torres , 873 F.3d 346 ( 2017 )

United States Court of Appeals
For the First Circuit
No. 15-2322
UNITED STATES OF AMERICA,
Appellee,
v.
JONATHAN ORTIZ-TORRES,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Gustavo A. Gelpí, U.S. District Judge]
Before
Howard, Chief Judge,
Dyk* and Thompson, Circuit Judges.
Vivian Shevitz on brief for appellant.
Rosa Emilia Rodríguez-Vélez, 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.
October 13, 2017
*Of the Federal Circuit, sitting by designation.
PER CURIAM. Defendant-Appellant Jonathan Ortiz-Torres
appeals his 560-month sentence, entered pursuant to a guilty plea,
for brandishing and discharging firearms during a crime of violence
in violation of 18 U.S.C. § 924(c)(1)(A) and (j). Ortiz and his
co-defendants embarked on a plan to rob two Puerto Rico Department
of Natural Resources officers of their firearms. Ortiz attempted
to take one guard's gun and, in the ensuing struggle, he shot the
guard. In response, a second guard began shooting at Ortiz and
one of his co-defendants. The conspirators returned fire, and a
bullet from Ortiz struck and killed the second guard. At this
point, Ortiz turned his attention back to the first guard, who
remained on the ground, wounded. "Believing the guard" to be
"moving in a threatening manner, Ortiz shot him in the head or
neck area killing him."
Ortiz's plea agreement stipulated that he would receive
a three-level reduction of his offense level for acceptance of
responsibility under U.S.S.G. §3E1.1. Accounting for this
downward adjustment, the parties agreed that the applicable
guideline sentencing range ("GSR") was 292-365 months. But the
plea agreement also expressly provided that both parties were free
to "argue for an appropriate sentence, notwithstanding" this
range. Indeed, the government specifically "reserve[d] its right
to argue for a sentence above the suggested" GSR. At the
sentencing hearing, the government exercised that right and
- 2 -
recommended an incarcerative term of at least 500 months. The
district court agreed that a variance was appropriate and sentenced
Ortiz to 560 months' imprisonment.
On appeal, Ortiz raises two narrow challenges to his
sentence. First, he contends that the government breached the
plea agreement by arguing at the sentencing hearing that Ortiz
"had not accepted responsibility." Second, Ortiz suggests that
his and his co-defendant's sentences were "unduly disparate."
Because both of Ortiz's claims fail on the merits, we assume,
favorably to him, that they are preserved for appeal.
Applying de novo review, see United States v. Almonte-
Nuñez, 771 F.3d 84, 89 (1st Cir. 2014), we find no breach of the
plea agreement. The government never so much as mentioned the
acceptance of responsibility credit at the sentencing hearing.
Ortiz nonetheless asserts that the prosecutor's reference to
Ortiz's lack of remorse undermined his acceptance of
responsibility. But, rather than an attempt to renege on the plea
deal, the government's contention on this issue was simply part of
its rationale for requesting an upward variance. "It is well
established" that "lack of remorse" is a relevant consideration in
this context that can support an upward variance in sentencing,
even if there is an acceptance of responsibility by the defendant.
United States v. Santiago-González, 825 F.3d 41, 50 n.13 (1st Cir.
2016); see also United States v. Cruzado-Laureano, 527 F.3d 231,
- 3 -
236-37 (1st Cir. 2008).1 In any event, the court ultimately found
a "clear acceptance of responsibility" and, accordingly, applied
the downward adjustment.
Ortiz next argues that his 560-month sentence is
substantively unreasonable, in light of his co-defendant's 380-
month sentence. In short, we perceive no abuse of discretion by
the district court. See United States v. Reverol-Rivera, 778 F.3d
363, 366-67 (1st Cir. 2015). As an initial matter, a defendant is
not entitled to a lighter sentence merely because a co-defendant
received one. See United States v. Dávila-González, 595 F.3d 42,
50 (1st Cir. 2010). Indeed, there is a panoply of "material
differences" that may justify a purported disparity. United States
v. Reyes-Santiago, 804 F.3d 453, 467 (1st Cir. 2015). We have
repeatedly held that one such distinguishing factor is a
defendant's relative culpability. See, e.g., Reverol-Rivera, 778
F.3d at 366; United States v. Rivera-Maldonado, 194 F.3d 224, 236
(1st Cir. 1999). Here, the sentencing judge expressly relied on
the fact that Ortiz, not his co-defendant, shot and killed both
victims. The court was especially troubled by Ortiz's fatal
1 To the extent that Ortiz separately argues that the
government breached the plea agreement by referring to his filing
of a motion to suppress, that claim also fails. The prosecutor
never argued or implied that the suppression motion affected
Ortiz's entitlement to acceptance of responsibility credit.
Indeed, she ultimately agreed with defense counsel's
characterization of the suppression issue.
- 4 -
shooting of the injured guard lying on the ground, which it
characterized as "extremely shocking." The district court was
well within its broad discretion to conclude that this conduct
rendered Ortiz more culpable than his co-defendant and, in turn,
justified a significantly longer term of incarceration.
For the foregoing reasons, we AFFIRM Ortiz's sentence.
- 5 -