United States v. Zayas-Rodriguez ( 2017 )

Not for Publication in West's Federal Reporter
United States Court of Appeals
For the First Circuit
No. 15-2060
UNITED STATES OF AMERICA,
Appellee,
v.
WILLIAM ZAYAS-RODRIGUEZ,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Aida M. Delgado-Colón, Chief U.S. District Judge]
Before
Lynch, Circuit Judge,
Souter, Associate Justice,*
and Selya, Circuit Judge.
Barbara J. Sweeney on brief for appellant.
Tiffany V. Monrose, Assistant United States Attorney, Mariana
E. Bauzá-Almonte, Assistant United States Attorney, Chief,
Appellate Division, and Rosa Emilia Rodríguez-Vélez, United States
Attorney, on brief for appellee.
January 18, 2017
* Hon. David H. Souter, Associate Justice (Ret.) of the
Supreme Court of the United States, sitting by designation.
LYNCH, Circuit Judge. William Zayas-Rodriguez pled
guilty to possession of a firearm in furtherance of a drug
trafficking crime and received a sentence of 70 months'
imprisonment. We reject his challenges to the procedural and
substantive reasonableness of his sentence and affirm.
I.
On April 21, 2014, a police cruiser in Cayey, Puerto
Rico attempted to stop a car that appeared to have illegally tinted
windows. The car sped off, but after a chase the police detained
it and identified its driver as Zayas-Rodriguez. While checking
Zayas-Rodriguez's license and registration, an officer noticed a
pistol "in plain view, partially hidden under the [car's] front
passenger seat." The car also contained $1,033 in cash, as well
as significant amounts of ammunition and controlled substances.
On September 4, 2014, Zayas-Rodriguez agreed to plead
guilty to possession of a firearm in furtherance of a drug
trafficking crime. See 18 U.S.C. § 924(c)(1)(A)(i). That offense
triggers a mandatory minimum sentence of 60 months, id., and so 60
months was the advisory sentence under the Sentencing Guidelines,
see U.S.S.G. § 2K2.4(b) (providing that, for § 924(c) convictions,
"the guideline sentence is the minimum term of imprisonment"). In
the non-binding plea agreement, the government agreed to recommend
a 60-month sentence and to request dismissal of the other charges
- 2 -
at sentencing. The district court accepted the plea on October
15, 2014.
On August 25, 2015, at sentencing, Zayas-Rodriguez's
counsel did not object to any of the information in the Pre-
Sentence Report ("PSR"), and Zayas-Rodriguez himself confirmed
that the PSR's facts were accurate. The district court, after
stating that it had "considered the sentencing factors under [18
U.S.C. §] 3553(a)," the plea agreement, and its obligation to
"impos[e] a sentence that [wa]s not harsher than necessary," chose
to impose a 70-month sentence. The court explained that it had
taken into account Zayas-Rodriguez's numerous prior arrests and
convictions, as well as "the elements of the instant offense."
Zayas-Rodriguez timely appealed.
II.
Zayas-Rodriguez claims that his sentence was both
procedurally and substantively unreasonable.1 His arguments fail.
A. Procedural Reasonableness
We need not resolve the parties' disagreement as to the
appropriate standard of review because there was no abuse of
1 As the government concedes, the plea agreement's waiver-
of-appeal clause does not bar this appeal because the district
court varied upward from the agreement's joint sentencing
recommendation. See United States v. Rivera-González, 776 F.3d
45, 48–49 (1st Cir. 2015).
- 3 -
discretion, much less plain error, in the sentence's procedural
reasonableness.
First, Zayas-Rodriguez argues that his sentence was
procedurally unreasonable because the district court
"extemporaneously" calculated a criminal history score without
giving him notice of the data or methodology used. But the court
explicitly confirmed its awareness that "the provisions of Chapter
4 of the Sentencing Guidelines do not apply to . . . [§] 924(c)
violations," and when viewed in context, its calculation was merely
a remark meant to help illustrate, for § 3553(a) purposes, the
extensiveness of Zayas-Rodriguez's arrest record. See United
States v. Flores-Machicote, 706 F.3d 16, 21 (1st Cir. 2013)
(observing that § 3553(a)(1) instructs sentencing judges to
consider the defendant's "history and characteristics"). And the
court had no obligation to give advance notice that it might choose
an upward variance based on facts contained in the PSR. See
Irizarry v. United States, 553 U.S. 708, 713–14 (2008).
As a corollary to his first argument, Zayas-Rodriguez
argues next that the district court mischaracterized one of his
prior offenses as a "carjacking," when in fact the offense was an
illegal appropriation. Even assuming arguendo that the court
misunderstood the precise nature of that prior offense, the
argument still falls short; any error was harmless. Because the
district court's broader point was the extensiveness of the arrest
- 4 -
record, we are satisfied that the court's misunderstanding, if
any, had no effect on the sentence. See United States v. Alphas,
785 F.3d 775, 780 (1st Cir. 2015) (citing Williams v. United
States, 503 U.S. 193, 203 (1992)).
Finally, Zayas-Rodriguez argues that his sentence was
procedurally unreasonable because the district court gave undue
consideration to the effects of gun violence on Puerto Rico's
citizens. But as we have repeatedly stated, a district court may
consider such issues as deterrence-related factors that help to
justify an upward variance, so long as the court does not "focus
too much on the community and too little on the individual
[defendant]." Flores-Machicote, 706 F.3d at 24; see also, e.g.,
United States v. Pedroza-Orengo, 817 F.3d 829, 834 (1st Cir. 2016);
United States v. Pantojas-Cruz, 800 F.3d 54, 59-60 (1st Cir. 2015);
United States v. Narváez-Soto, 773 F.3d 282, 285–86 (1st Cir.
2014); United States v. Politano, 522 F.3d 69, 73–74 (1st Cir.
2008). In Zayas-Rodriguez's case, the court appropriately tied
the community-based factors to the other § 3553(a) factors and to
his individual circumstances -- particularly the fact that the
police had found drugs, in addition to a firearm, when they
searched his car.
B. Substantive Reasonableness
Zayas-Rodriguez also claims that his sentence was
substantively unreasonable. Once again, we need not resolve any
- 5 -
uncertainty over the appropriate standard of review2 because the
sentence was substantively reasonable under any standard. The
district court's "ultimate responsibility [wa]s to articulate a
plausible rationale and arrive at a sensible result," United
States v. Carrasco-de-Jesús, 589 F.3d 22, 30 (1st Cir. 2009), and
it met those obligations by plausibly reasoning that Zayas-
Rodriguez's extensive criminal history and the "serious
combination" of weapons and drugs found in his car warranted a
modest upward variance from the mandatory minimum. "That the
sentencing court chose not to attach to certain of the mitigating
factors the significance that [Zayas-Rodriguez] thinks they
deserved does not make the sentence unreasonable." United States
v. Clogston, 662 F.3d 588, 593 (1st Cir. 2011).
III.
For the foregoing reasons, we affirm Zayas-Rodriguez's
sentence.
2 It is not settled whether "a failure to . . . object[]
in the district court to the substantive reasonableness of a
sentence begets plain error review" or abuse of discretion review.
United States v. Ruiz-Huertas, 792 F.3d 223, 228 (1st Cir.), cert.
denied, 136 S. Ct. 258 (2015).
- 6 -