United States v. Zayas-Rodriguez ( 2017 )


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  •                 Not for Publication in West's Federal Reporter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 -
    

Document Info

Docket Number: 15-2060U

Judges: Lynch, Souter, Selya

Filed Date: 1/18/2017

Precedential Status: Non-Precedential

Modified Date: 11/6/2024