United States v. Viloria-Sepulveda , 921 F.3d 5 ( 2019 )

United States Court of Appeals
For the First Circuit
No. 18-1152
UNITED STATES,
Appellee,
v.
FABIAN VILORIA-SEPULVEDA, a/k/a Fabian Vilora-Sepúlveda,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Juan M. Perez-Gimenez, U.S. District Judge]
Before
Howard, Chief Judge,
Lynch and Lipez, Circuit Judges.
Mariem J. Paez 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.
April 16, 2019
LYNCH, Circuit Judge. Fabian Viloria-Sepulveda pled
guilty to illegal possession of a machine gun in violation of 18
U.S.C. § 922(o). The district court sentenced Viloria-Sepulveda
to sixty months' imprisonment, a sentence above the applicable
guidelines sentencing range (GSR) but below the statutory maximum
of ten years. 18 U.S.C. § 924(a)(2).
Viloria-Sepulveda challenges this sentence on procedural
and substantive grounds. Procedurally, he contends that the
district court erred in considering two types of evidence:
(1) photographs found on the defendant's cell phone showing the
defendant and others handling drugs, drug paraphernalia, and guns,
including military-style assault weapons, and (2) information
about the pervasiveness of guns and gun violence in Puerto Rico.
We affirm.
I.
Puerto Rico police officers from the Drug Division of
San Juan had a member of a violent drug trafficking organization
under physical surveillance on January 30, 2017. The officers
conducting the surveillance saw a Toyota Corolla escorting the
gang member's car. Viloria-Sepulveda was the driver of the Toyota,
as the police would later discover.
The officers did a record check of the Toyota's license
plates. Learning that the Toyota had been reported missing and
should be recovered, the police stopped the car. As the officers
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neared the front driver's side window, they watched Viloria-
Sepulveda (who was sitting in the driver's seat) attempt to put a
firearm inside a bag on the front passenger seat. The officers
ordered Viloria-Sepulveda to roll down the window, but he instead
persisted in trying to hide the firearm. So the officers told
Viloria-Sepulveda to step out of the car, which he did, and they
placed him under arrest.
The officers determined that the gun recovered from the
bag was a Glock 34 pistol modified to shoot automatically and
loaded with an extended magazine containing twenty-four bullets.
Viloria-Sepulveda volunteered to the officers that the weapon was
his.
A search of the Toyota uncovered another extended
magazine (with twenty-four rounds of ammunition) for the Glock, a
face mask, a drug ledger, walkie talkies, and three cell phones.
A search (to which Viloria-Sepulveda consented) of one of the cell
phones and its applications, including a messaging application
called WhatsApp, uncovered multiple photographs of Viloria-
Sepulveda and others carrying firearms of different types,
including assault-style weapons; of drug ledgers; of a scale; and
of substances in plastic bags and in vials.
A federal grand jury in Puerto Rico indicted Viloria-
Sepulveda on one count of illegal possession of a machine gun.
See 18 U.S.C. §§ 922(o), 924(a)(2). Viloria-Sepulveda entered a
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straight guilty plea. He also forfeited the firearm and the
ammunition.
The Probation Office prepared a presentence report
(PSR), which found a Total Offense Level of 15 and a Criminal
History Category of I. Based on these calculations, the PSR
calculated a GSR of eighteen to twenty-four months.
In its sentencing memorandum, the government agreed with
the PSR's calculations but argued for an upwardly variant sentence
of forty-eight to sixty months based on the nature of the offense,
the defendant's characteristics, and the need for deterrence and
for protection of the public from future crimes by the defendant.
It stressed that Viloria-Sepulveda "was heavily armed with" a
machine gun and "two extended magazines" and argued that Viloria-
Sepulveda's proximity to the violent gang member under
surveillance, as well as Viloria-Sepulveda's possession of the
walkie talkies, drug ledger, and face mask were "all evidence that
[Viloria-Sepulveda] was part of a violent criminal gang willing to
conduct its operations, and protect one another, on a public street
in broad daylight." Further, the memorandum argued that the nature
of the offense and the photographs on the defendant's cell phone
showed that he was "an individual with a penchant for high-capacity
firearms, drugs, and criminal activity."
Finally, the government urged that the pervasiveness of
guns and gun violence in Puerto Rico justified an upward variance
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to ensure adequate deterrence and to protect the public from future
crimes by the defendant. The memorandum observed that the homicide
rate from gun violence in Puerto Rico was among the highest in the
world and stated, based on FBI statistics, that Puerto Rico's
murder rate is the second-highest in the United States.
Viloria-Sepulveda's sentencing memorandum agreed with
the PSR's guidelines sentencing calculations but argued that an
upward variance was not warranted. Specifically, he objected to
the government's reliance on any photographs sent to the defendant
through a group chat he was a member of on WhatsApp, saying that
it would be inappropriate to "presuppose[] that Mr. Viloria[-
Sepulveda] personally participated in taking the photographs and
video and that therefore he had access to the narcotics, firearms,
and other items depicted in said photographs." The memorandum
also claimed that many of the photographs depicted innocent
conduct, as they were taken during the recording of music videos
for local artists. Finally, Viloria-Sepulveda's memorandum
highlighted that he was a father, had a record of employment, and
was a first-time offender.
At the sentencing hearing on January 26, 2018, the
government reiterated its arguments for an upwardly variant
sentence of between forty-eight and sixty months. The district
court "recogize[d] that Puerto Rico is a hot spot for weapons,
especially those that contain the chips which make them fully
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automatic as machine guns." It also rejected Viloria-Sepulveda's
objections to the photos.
The district court accepted the PSR's guidelines
calculations and GSR. It noted that it had "considered all of the
[18 U.S.C. § 3553] sentencing factors," emphasizing "the need to
promote respect for the law and protect the public from further
crimes by defendant" and "the issues of deterrence and punishment."
After describing the offense, the evidence in the Toyota, and the
photographs, the district court observed that the defendant was
connected to "what the Court consider[s] to be" criminal activity.
Based on all of these considerations, the district court sentenced
Viloria-Sepulveda to sixty months' imprisonment with three years
of supervised release. Viloria-Sepulveda's counsel then "state[d]
for the record that we object to the sentence imposed both on
procedural and substantive grounds," without further elaboration.
II.
Preserved claims of procedural and substantive
sentencing error are reviewed under an abuse of discretion
standard. See Gall v. United States, 552 U.S. 38, 55 (2007);
United States v. Soto-Soto, 855 F.3d 445, 448 (1st Cir. 2017).
Viloria-Sepulveda's claim of substantive error, made in the
district court, is undoubtedly preserved, and is reviewed under
that standard.
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Viloria-Sepulveda preserved only one of his two
procedural objections. He argued in his sentencing memorandum and
at the hearing that the photographs were not his or that they
depicted scenes from music videos. The second of those objections
was similar enough to the issue raised here -- that it had not
been established that the photographs depicted illegal
conduct -- to put the district court on fair notice, preserving
the issue. See United States v. Ríos-Hernández, 645 F.3d 456, 462
(1st Cir. 2011). But Viloria-Sepulveda raises his objection to
the consideration of community factors for the first time on
appeal. See United States v. Matos-de-Jesús, 856 F.3d 174, 177
(1st Cir. 2017) ("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." (quoting Soto-Soto, 855 F.3d at 448 n.1)). That
unpreserved claim is reviewed for plain error.1 Id.
We find no error, let alone plain error, and no abuse of
discretion in the sentence. Turning first to the procedural
challenges, we emphasize a few principles at the outset.
1 "Under the plain error standard, the appellant must show
'(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.'" Soto-Soto, 855 F.3d at 448
(quoting United States v. Duarte, 246 F.3d 56, 60 (1st Cir. 2001)).
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III.
A sentencing judge, "draw[ing] upon his familiarity with
a case[ and] weigh[ing] the factors enumerated in 18 U.S.C.
§ 3553(a)," may "custom-tailor an appropriate sentence" above the
applicable GSR. United States v. Flores-Machicote, 706 F.3d 16,
20 (1st Cir. 2013) (citing Kimbrough v. United States, 552 U.S.
85, 109 (2007)). When a court does depart from the GSR, "its
reasons for doing so 'should typically be rooted either in the
nature and circumstances of the offense or the characteristics of
the offender.'" Id. at 21 (quoting United States v. Martin, 520
F.3d 87, 91 (1st Cir. 2013)); see also 18 U.S.C. § 3553(a) (calling
for consideration of the "history and characteristics" of the
defendant, among other factors).
Congress has mandated that "[n]o limitation shall be
placed on the information concerning the background, character,
and conduct of a person convicted of an offense which a court of
the United States may receive and consider for the purpose of
imposing an appropriate sentence." 18 U.S.C. § 3661. "The intent
of Congress" in instructing this "was clearly to leave wide open
the information . . . at sentencing. The only qualifier imposed
is that the information . . . be reliable." United States v.
Rodriguez-Cardona, 924 F.2d 1148, 1155 (1st Cir. 1991); see also
United States v. Acevedo-Lopez, 873 F.3d 330, 340 (1st Cir. 2017);
United States v. Cintrón-Echautegui, 604 F.3d 1, 6 (1st Cir. 2010).
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Section 3553(a) in particular "invite[s] the district
court to consider, broadly," United States v. Politano, 522 F.3d
69, 74 (1st Cir. 2008), any reliable information relevant not only
to the "history and characteristics" of the defendant but also to
factors such as the "seriousness of the offense," the need "to
afford adequate deterrence to criminal conduct," and the need "to
protect the public from further crimes of the defendant," 18 U.S.C.
§ 3553(a); see also, e.g., United States v. Rivera-Berríos, 902
F.3d 20, 27 (1st Cir. 2018) (recognizing the "broad discretion"
granted by § 3553(a)). This framework not only renders appropriate
but actually encourages the sentencing court's consideration of
the evidence objected to here.
The photographs, whose authenticity Viloria-Sepulveda
does not challenge, conveyed reliable information about the
defendant relevant to his sentence for illegal possession of a
machine gun. The district court appropriately concluded that the
fact that Viloria-Sepulveda had saved numerous photographs (some
including him) of firearms, drugs, and drug paraphernalia, or had
been sent such photographs on WhatsApp, signaled his past
participation in or propensity for illegal or violent activities
involving drugs and firearms. See Acevedo-Lopez, 873 F.3d at 340
(no error in relying on text messages, photographs, video, and
other evidence related to past violent incident to upwardly vary
sentence). This conclusion was further supported by similar
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evidence found in Viloria-Sepulveda's car (in which he was
escorting a known member of a violent drug gang) -- including not
only the machine gun and ammunition but also a face mask, three
cell phones, walkie talkies, and a drug ledger. In short, the
district court certainly did not abuse its discretion in relying
on photographs and possessions indicative of the defendant's
associations with violent and illegal conduct in upwardly varying
his sentence. See Acevedo-Lopez, 873 F.3d at 340; United States
v. Quiñones-Meléndez, 791 F.3d 201, 205 (1st Cir. 2015) (no error
in basing sentence on evidence in PSR and elsewhere indicating
that the defendant was a "very dangerous individual"); United
States v. Gallardo-Ortiz, 666 F.3d 808, 815 (1st Cir. 2012)
(similar).
In the district court, Viloria-Sepulveda argued that the
images were either not his or that they depicted innocent conduct.
But the district court was free to find otherwise, as it did. See,
e.g., United States v. Oliveira, 907 F.3d 88, 91-92 (1st Cir. 2018)
(sentencing court's factual finding reviewed for clear error).
"[I]f he had nothing to do with it, why would somebody send him
that; just for the fun of it?," the district court astutely said.
"It's improbable[.]" And, as the district court rightly observed,
it "stretch[es] . . . credibility" to view images containing "all
this weaponry" as innocent depictions of scenes from a music video
shoot.
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On appeal, Viloria-Sepulveda attempts to characterize
the images as irrelevant or unreliable because "it cannot be
established by the pictures that the firearms violated any federal
statute." Not so, and the argument misses the point in any event.
The district court did not err in finding that the pictured
weapons, some of which looked like "high-powered AK-47s," were
likely possessed illegally. Further, as we stated, images
associating the defendant with drugs, drug-related items, and
weapons (whatever the status of those weapons under federal law)
could be used in upwardly varying his sentence, as they are
evidence of relevant history and characteristics. See Gallardo-
Ortiz, 666 F.3d at 815.
The district court also did not err in considering the
problem of gun violence in Puerto Rico and that "Puerto Rico is a
hot spot for weapons." Community considerations such as the
prevalence of weapons and of violent crime can justify upwardly
varying a sentence for a gun possession conviction. See Flores-
Machicote, 706 F.3d at 22-23 (no error in relying on "Puerto Rico's
escalating murder rate and other local criminal trends" in upwardly
varying a sentence for gun possession); United States v. Fuentes-
Echevarria, 856 F.3d 22, 26 (1st Cir. 2017) (no error relying on
the fact of an "arsenal [of weapons] out there in the streets" in
upwardly varying a sentence for a conviction under § 922(o)
(alteration in original)); United States v. Millán-Roman, 854 F.3d
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75, 79 (1st Cir. 2017) (similar); United States v. Lozada–Aponte,
689 F.3d 791, 793 (sentencing judge's discussion of "incidence of
crime in Puerto Rico" was a "permissible consideration[] in varying
from the guidelines"); cf. United States v. Landry, 631 F.3d 597,
607 (1st Cir. 2011) (no error in relying on the growth of identity
theft in Maine to impose high-end guidelines sentence).
The pervasiveness of guns and the level of violence in
the local community are connected to the determinations that a
sentencing judge must make under § 3553(a)(2). As we explained in
United States v. Flores-Machicote, 706 F.3d 16 (1st Cir. 2013),
"the incidence of particular crimes in the relevant community
appropriately informs and contextualizes the relevant need for
deterrence," a factor that must be weighed under § 3553(a)(2).
Id. at 23; see also Politano, 522 F.3d at 74. A sentencing judge
may also reasonably conclude that the need to promote respect for
the law and to protect the public from future crimes by the
defendant is greater in areas hardest hit by guns and violence,
see 18 U.S.C. § 3553(a)(2)(A)-(B) -- "and this may translate into
a stiffer sentence," Flores-Machicote, 706 F.3d at 23.
The district court did not, as Viloria-Sepulveda argues,
overemphasize these community concerns at the expense of
individual ones. See id.; see also, e.g., United States v. Rivera-
González, 776 F.3d 45, 50-51 (1st Cir. 2015). A review of the
district court's explanation makes this abundantly clear. The
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district court mentioned the community concerns only once.
Otherwise, it considered the nature of this offense, particularly
the fact that the defendant's weapon was "a machine gun, that is,
a Glock pistol, .45 caliber, that had been modified to shoot
automatically more than one shot without manual reloading, and
that was by a single function of the trigger." The district court
also considered the images found on the defendant's phone and the
evidence in his car. It addressed Viloria-Sepulveda's acceptance
of responsibility, that this was his first conviction, that he had
three dependents, and that he had "obtained his GED and was
performing odd jobs before his arrest."2 The district court
confirmed that it had "considered all of the" § 3553(a) factors as
they related to the defendant.
Finally, the explanation just recounted justified the
district court's imposition of an upwardly variant sentence of
sixty months. That this five-year term of imprisonment is
substantively reasonable is also evident from the fact that
Congress has authorized a term of imprisonment of up to ten years
for this offense. See 18 U.S.C. §§ 922(o), 924(a)(2). Viloria-
2 Viloria-Sepulveda argues that the district court
afforded too little importance to potentially mitigating personal
characteristics like these. But the sentencing court has broad
discretion in weighing and balancing the § 3553(a) factors, and we
see no abuse of discretion in the weight assigned here. United
States v. Gierbolini-Rivera, 900 F.3d 7, 15 (1st Cir. 2018).
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Sepulveda's sentence falls within the "universe of reasonable
sentences." Rivera-González, 776 F.3d at 52.
Affirmed.
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