United States v. Mendez-Rodriguez ( 2023 )

Not for Publication in West's Federal Reporter
United States Court of Appeals
For the First Circuit
No. 21-1354
UNITED STATES OF AMERICA,
Appellee,
v.
JOSÉ A. MÉNDEZ-RODRÍGUEZ,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Francisco A. Besosa, U.S. District Judge]
Before
Gelpí, Howard, and Thompson,
Circuit Judges.
Alejandra Bird-López, Research and Writing Specialist, with
whom Eric Alexander Vos, Federal Public Defender, and Franco L.
Pérez-Redondo, Assistant Federal Public Defender, Supervisor,
Appeals Division, were on brief, for appellant.
Jonathan L. Gottfried, Assistant United States Attorney, with
whom W. Stephen Muldrow, United States Attorney, Mariana E. Bauzá-
Almonte, Assistant United States Attorney, Chief, Appellate
Division, and Gregory B. Conner, Assistant United States Attorney,
were on brief, for appellee.
January 12, 2023
GELPÍ, Circuit Judge. Defendant-Appellant José A.
Méndez-Rodríguez entered a straight plea to a single count charge
for the possession of a machinegun in violation of 18 U.S.C.
§ 922(o). Before us, he challenges the procedural and substantive
reasonableness of the upward variant sentence of thirty months'
imprisonment imposed by the district court. Because the district
court did not explicitly provide its reasoning for imposing the
upward variance, nor can we discern from the record the district
court's rationale, we remand for clarification.
While conducting a preventive patrol, Puerto Rico Police
officers were in front of a sports bar in Canóvanas, Puerto Rico,
when they observed Méndez-Rodríguez walk into the bar and head
towards the slot machines area. One of the officers pointed his
flashlight at Méndez-Rodríguez and noticed a black pistol magazine
near his waistband area. Subsequently, the officer approached him
and asked whether he had a firearm license. Méndez-Rodríguez
responded saying that he did not have a license, and admitted that
it was an illegal firearm. The same was a Glock pistol, modified
to shoot automatically and loaded with thirteen rounds of .40
caliber ammunition. He also had two high-capacity magazines loaded
with twenty-one and twenty-two rounds of .40 caliber ammunition,
respectively.
Méndez-Rodríguez was arrested and taken to the police
station, where he waived his Miranda rights and stated that he had
- 3 -
purchased the firearm on the black market for $1,200.00 two weeks
earlier. He further stated that he bought the firearm for self-
protection, because his neighborhood was dangerous, he added. He
also indicated that he was unaware that the pistol had been
modified to fire automatically.
On September 5, 2019, a grand jury for the District of
Puerto Rico returned an indictment against Méndez-Rodríguez
charging him with possession of a machinegun in violation of 18
U.S.C. § 922(o). On January 13, 2020, Méndez-Rodríguez entered a
straight guilty plea. Thereafter, the U.S. Probation Office
prepared and submitted to the district court a presentence report
("PSR"). The PSR calculated a base offense level of eighteen
pursuant to U.S.S.G. § 2K2.1(a)(5). However, Méndez-Rodríguez
received a three-level deduction for acceptance of responsibility,
for a total offense level ("TOL") of fifteen. The PSR also stated
that Méndez-Rodríguez had no known prior arrests or convictions.
Based on Méndez-Rodríguez's TOL and criminal history, the PSR
calculated the applicable Guideline sentencing range ("GSR") to be
eighteen to twenty-four months of imprisonment.
In his sentencing memorandum, Méndez-Rodríguez sought
probation or home confinement for he was a first-time offender.
On the other hand, at the sentencing hearing, the government
requested a sentence at the higher end of the GSR, that is, twenty-
four months. The district court agreed with the GSR calculation
- 4 -
stated in the PSR. However, it concluded that varying upward to
thirty months of imprisonment "reflect[ed] the seriousness of the
offense." Méndez-Rodríguez objected to the procedural and
substantive reasonableness of his sentence, arguing that the
sentencing court had varied upward "for taking into consideration
matters that are part of the [G]uidelines, which is the nature of
the weapon." The district court responded by reminding Méndez-
Rodríguez that "[the Guidelines] are advisory" and that "[it] also
considered the fact that he had three magazines . . . and 56 rounds
of ammunition." Méndez-Rodríguez timely appealed.
It is unclear from the record the reasons the court
considered to impose a six-month variance. See Kimbrough v. United
States, 552 U.S. 85, 101 (2007) (observing 18 U.S.C. § 3553(a)'s
directive that district courts should consider "a number of
factors" in determining the appropriate sentence, including, for
example, "'the nature and circumstances of the offense,' 'the
history and characteristics of the defendant,'" and "'the
sentencing range established' by the Guidelines" (quoting 18
U.S.C. § 3553(a))). Here, such considerations might include (but
are not necessarily limited to) the extra rounds of ammunition,
the location of the offense, characteristics of the offender, or
whether a sentence that deviates from the Guideline range reflects
the seriousness of the offense. In other words, "the district
[court] did not state in open court, with sufficient specificity,
- 5 -
the reasons for deciding this particular issue,
which . . . impacted [Méndez-Rodríguez's] sentence." United
States v. Catano, 65 F.3d 219, 231 (1st Cir. 1995); cf. United
States v. Caceres-Cabrera, 219 F. App'x 18, 19 (1st Cir 2007)
(remanding for clarification after it was unclear why the district
court imposed a six-level increase under U.S.S.G. § 2S1.1(b)(1)).
We find that the proper course is to remand to the
district court "for clarification and a further statement of
reasons." Caceres-Cabrera, 219 F. App'x at 19; see also United
States v. Levy, 897 F.2d 596, 599 (1st Cir. 1990) ("Where, as here,
the record admits of possible ambiguity, our practice is to remand
for a limited purpose."); United States v. McDowell, 918 F.2d 1004,
1012 (1st Cir. 1990) (remanding for resentencing where this court
cannot tell the basis for an upward adjustment). "Nothing in this
opinion should be taken as addressing the merits of the issues
raised by the defendant." Caceres-Cabrera, 219 F. App'x at 20.
For the reasons elucidated above, we remand to the
district court. This panel retains jurisdiction over this matter.
- 6 -