United States v. Fuentes-Moreno ( 2020 )

United States Court of Appeals
For the First Circuit
No. 18-1907
UNITED STATES OF AMERICA,
Appellee,
v.
FREDDIE A. FUENTES-MORENO,
a/k/a Tinta, a/k/a Marca,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Francisco A. Besosa, U.S. District Judge]
Before
Howard, Chief Judge,
Torruella and Thompson, Circuit Judges.
Rafael F. Castro Lang for appellant.
John Alex Romano, Criminal Division, United States Department
of Justice, with whom Rosa Emilia Rodríguez-Vélez, United States
Attorney, Mariana E. Bauzá-Almonte, Assistant United States
Attorney, Chief, Appellate Division, and Thomas F. Klumper,
Assistant United States Attorney, Senior Appellate Counsel, were
on brief, for appellee.
April 1, 2020
THOMPSON, Circuit Judge. Defendant-Appellant Freddie A.
Fuentes-Moreno says the district court abused its discretion in
giving him a consecutive 144-month sentence for two robbery
convictions, rather than making it concurrent with another
sentence he was already serving at the time he was sentenced for
the robberies. We disagree and so we affirm.
BACKGROUND
Fuentes's appeal pertains to an offense that occurred in
February 2017 but didn't get charged until February 2018. Because
Fuentes contests the sentence's consecutive application to a
different sentence that he was already set to serve at the time he
was charged in 2018, we start by quickly summarizing Fuentes's
criminal history.1
In 2012, Fuentes was indicted for possession of a firearm
in furtherance of a drug trafficking crime. See Complaint, United
States v. Freddie A. Fuentes-Moreno, No. 12-CR-093 (CCC) (D. P.R.
Feb. 3, 2012), ECF No. 1 ("Case No. 12-093"). He entered into a
plea agreement and on December 3, 2012, was sentenced to 60 months
incarceration and 5 years supervised release. His supervised
release began August 19, 2016.
1 Because this appeal follows a guilty plea, "we glean the relevant
facts from the plea agreement, the undisputed sections of the
presentence investigation report (PSR), and the transcripts of his
change-of-plea and sentencing hearings." United States v. Ubiles-
Rosario, 867 F.3d 277, 280 n.2 (1st Cir. 2017) (citing United
States v. Lasalle González, 857 F.3d 46, 52 (1st Cir. 2017)).
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Less than one year into its term, Fuentes violated his
release provisions when on March 1, 2017, he was arrested and
indicted for being a prohibited person in possession of a firearm.
See Complaint, United States v. Freddie A. Fuentes-Moreno, No. 17-
CR-148 (GAG) (D. P.R. Mar. 1, 2017), ECF No. 1 ("Case No. 17-148"
or the "March 1 firearm offense"). As a result of the new charge,
the court revoked Fuentes's supervised release term from Case No.
12-093 on July 12, 2017 and imposed a 10-month revocation sentence
(the "Revocation Sentence"). On the new firearm possession charge,
Fuentes entered a straight guilty plea (i.e., sans a plea
agreement), and on September 12, 2017, he received a 40 months
sentence consecutive to the 10-month revocation imposition.
While serving the 10, Fuentes and three co-defendants
were indicted for a couple of earlier criminal romps that had
occurred before Fuentes was reincarcerated, namely two robberies
that had taken place on February 4, 2017 (the "Humacao
Robberies").2 The first robbery happened in the morning at a gas
station in Humacao, Puerto Rico. Alongside his companions,
Fuentes, armed with a gun, entered the gas station and demanded
money from the gas station attendant. But the employee, protected
by a glass enclosure, refused to cooperate and hid. As a result,
2 Approximately one month before the March 1 firearm offense and
therefore during the term of supervised release from his 2012
offense.
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Fuentes and crew fled with two cellphone chargers and two candy
bars. Dissatisfied with their morning spoils, the four co-
defendants tried their luck again later in the day at a Humacao
supermarket. While one co-defendant remained in the getaway car,
Fuentes (still armed) and the others walked into the store and
took at gunpoint $1,400 in cash and $800 in merchandise.
In connection with the Humacao Robberies, a grand jury
returned a five-count Second Superseding Indictment charging
Fuentes and his three co-defendants on February 7, 2018. Fuentes
was charged with: 1) two counts of aiding and abetting in
interfering with commerce by robbery, in violation of
18 U.S.C. §§ 1951 and 2, (Counts One and Three); 2) two counts of
aiding and abetting in carrying, using and brandishing a firearm
during and in relation to a crime of violence, in violation of
18 U.S.C. §§ 924(c)(1)(A)(ii) and 2 (Counts Two and Four); and 3)
being a felon in possession of a firearm, in violation of 18 U.S.C.
§§ 922(g)(1) and 924(a)(2) (Count Five).
Fuentes initially pleaded not guilty, but on June 11,
2018, at a Rule 11 change of plea hearing, he entered into a guilty
plea as to Counts One and Three of the Second Superseding
Indictment (details found in "the Plea Agreement").3 As to the
3 In the Plea Agreement, the parties stipulated to a Base Offense
Level of 20 for both offenses under U.S Sentencing Guideline
(U.S.S.G.) § 2B3.1(a) and a 5-level enhancement for brandishing a
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Plea Agreement's sentencing recommendation, Fuentes and the
government were in accord: "[t]aking into consideration that
Counts Two, Four and Five [would] be dismissed." They
"recommend[ed] as to each count of conviction [Counts One and
Three] imprisonment sentences of 12 years [144 months], to be
served concurrently with each other." Both parties also
"reserve[d] the right to recommend at sentencing that the
imprisonment sentences imposed in this case be served concurrently
to any imprisonment sentence previously imposed on defendant,"
specifically, the parties reserved the right to request a sentence
to run concurrent with the 40 month sentence for the March 1
firearm offense (which to refresh, ran consecutive to the 10 month
Revocation Sentence).4 In the agreement Fuentes expressly
acknowledged certain provisions relevant to the present appeal:
1) the sentence was within the sound discretion of the court and
the advisory Sentencing Guidelines, and 2) the court was not bound
by the parties' Plea Agreement, sentencing calculations and/or
firearm under U.S.S.G. § 2B3.1(b)(2)(C). With a two-level
enhancement for the grouping of the offenses (U.S.S.G. § 3D1.4(a))
and a 3-level downward adjustment for acceptance of responsibility
(U.S.S.G. § 3E1.1), the parties agreed to a Total Offense Level
(TOL) of 24. The parties did not stipulate to a Criminal History
Category (CHC) in the Plea Agreement.
4 Fuentes specifically notes in his brief that he is requesting
concurrency only with the sentence for the March 1 firearm offense,
not his 10-month Revocation Sentence.
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recommendations. Finally, it contained a waiver of appeal
provision (the "Waiver Provision" that we'll get to in a minute).
Before accepting Fuentes's guilty plea, the district
court assured itself of Fuentes's competency and explained to him
all the ramifications of pleading guilty, such as waiving his right
to a trial. The judge next recounted the factual events leading
to Counts One and Three, and he reconfirmed with Fuentes his
decision to plead guilty to those Counts. He then inquired into
Fuentes's understanding of both the Sentencing Guidelines and of
the judge's absolute discretion to depart from those Guidelines in
sentencing Fuentes. After directing the government to spell out
the factual events leading to the Counts One and Three charges,
and after again confirming Fuentes's decision to plead guilty, the
judge accepted the plea and adjudged Fuentes guilty. Lastly, the
district judge ordered probation to prepare a Pre-Sentencing
Report ("PSR") "to assist in" sentencing which, weeks later, it
did.
Here's how the PSR determined Fuentes's sentencing
calculus. It laid out the details of Fuentes's background and
offenses and assessed a TOL of 24, just as in the Plea Agreement,
and a CHC of IV based on eight criminal history points: three for
each prior conviction (Case Nos. 12-093 and 17-148; U.S.S.G.
§ 4A1.1(a)) and two for committing the robberies while serving his
term of supervised release for his 2012 offense (U.S.S.G.
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§ 4A1.1(d)). The PSR also noted that in an interview on June 10,
2018, when Fuentes accepted responsibility for the robberies, he
also made a statement that "the firearm he possessed [during the
Humacao Robberies was] the same that he was charged with in [Case
No.] 17-148,"5 the March 1 firearm offense.
The PSR further set forth the maximum term of
imprisonment -- 20 years -- for Counts One and Three, and based
upon a TOL of 24 and CHC of IV, determined the Guidelines
imprisonment range was 77-96 months. The PSR then accounted for
how the Plea Agreement benefitted Fuentes, as he received: a
three-level reduction in his offense level by pleading guilty; a
dismissal of the remaining counts; and a joint recommendation of
imprisonment sentences of 12 years on each of the pled-to counts,
to be served concurrently with each other. The report also noted
that had Fuentes been convicted for Counts Two and Four, he would
have been subject to a minimum imprisonment of 25 years on each on
those counts, to be served consecutive to each other, for a total
minimum imprisonment of 50 years, to be then followed by a
consecutive term of imprisonment for Counts One and Three.
5 The criminal complaint for Case No. 17-148, the March 1 firearm
offense, includes a statement from Fuentes that he had purchased
the gun of which he was in possession "after he got out of jail
months ago," presumably after completing the 60 months
incarceration for Case No. 12-093 and before the Humacao Robberies
and the March 1 firearm offense. This complaint was not presented
to the district court.
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A few weeks before sentencing, Fuentes notified the
government by email of his objections to the PSR, including as
relevant here, "Objection 1: Conviction in Criminal Number 17-
148 [the March 1 firearm offense] should be considered relevant
conduct because the firearm for which he was charged in the
aforementioned case is the same used to commit the [Humacao
Robberies]." In response Probation filed an Addendum to the PSR
the week before the sentencing hearing, stating "[a]t this time,
there is no evidence to support that both cases involve the same
weapon. As such, cannot be considered relevant conduct in the
case." Why Fuentes wanted his March 1 firearm offense to be
considered "relevant conduct" to the Humacao Robberies will soon
become clear.
At the very beginning of the sentencing hearing held on
September 11, 2018, Fuentes's counsel raised this "relevant
conduct" issue:
THE COURT: Ms. Carrillo, is there anything you
would like to say on behalf of Mr. Fuentes
before I pronounce sentence?
FUENTES'S COUNSEL: Your Honor, we just ask the
Court -- there is a PSR, which I believe that
encompasses all the information this Court
needs at the time of imposing sentence. There
is only an issue that is pending as to the
relevant conduct, to see if it's possible this
Court can sentence this Defendant concurrent
to the [40 months] sentence that he is right
now serving, possession of a firearm, which
was a sentence that was imposed on September
2017. At that point in time, this Defendant
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was arrested with a Glock 26, which was the
same firearm that was used in --
THE COURT: We really don't know that.
FUENTES'S COUNSEL: Well, Your Honor, we have
a statement of the Defendant that he has
informed the Court and myself that it was his
firearm. So we do have --
THE COURT: The probation officer wasn't able
to corroborate that.
FUENTES'S COUNSEL: But the Government has
information that at least the weapon that he
used on the commission of this offense was a
Glock 26. We do not, obviously --
THE COURT: Why should it be relevant conduct
if just using the same firearm?
FUENTES'S COUNSEL: Well, Your Honor, it was a
possession at that time. What we are asking at
this point -- we are have an agreement --
THE COURT: The 924(c) counts [Counts 2 and 4]
in this case are being dismissed.
FUENTES'S COUNSEL: Yes, Your Honor. We do
understand, but there is two point enhancement
for the possession of -- the use of a firearm
in this case.
THE COURT: Exactly. He used it.
FUENTES'S COUNSEL: That is correct, Your
Honor. And --
THE COURT: It doesn't really matter if it was
the same firearm that he used before.
FUENTES'S COUNSEL: Your Honor, what we are
asking is that, since this is a case in which
there is a plea agreement of 12 years, which
is lengthy sentence, and he is already serving
an extra time, we just ask the Court to
sentence this concurrent --
THE COURT: Well, that's different. You are
requesting concurrence.
FUENTES'S COUNSEL: Yes, that is what we are
requesting, Your Honor.
THE COURT: Not necessarily because it was the
same firearm or because it was relevant
conduct. You are just requesting concurrence.
FUENTES'S COUNSEL: Yes. We are requesting
concurrence because of the kind of firearm
that was used. It was the same. But, Your
Honor, I really don't care if it's as to the
criminal history, the points of relevancy. I
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am just asking that this be sentenced
concurrent. And based on the plea agreement,
we, the Government and I, agree that I could
request such sentence.
The government then engaged:
GOVERNMENT: Your Honor, with respect to the
relevant conduct issue and to sister counsel's
argument, the information that the Government
has is that the gun that the Defendant used to
commit the robberies was a Glock, Model 26,
which was provided to him by someone in order
to commit the robbery, and that it was a gun
from a criminal organization, what's often
called a gun from el caserio, which is handed
around in order to commit crimes.
THE COURT: Probably rented.
GOVERNMENT: We do not know whether it was the
same gun because it was not seized. The
robbery was committed early February, and he
was arrested in March. So we do not know
whether the gun that he had on him when he was
arrested in March was the same gun.
After this, and at the court's invitation, Fuentes made his
allocution (i.e., made his formal statement to the court conveying
any information that could assist in sentencing), expressing his
remorse and regret, after which the court proceeded with
sentencing. The judge accepted the PSR's and Plea Agreement's TOL
of 24 and CHC of IV, explained why he did so and found the
Guidelines imprisonment range to be 77-96 months. He then turned
to the 18 U.S.C. § 3553(a) considerations, accounting for Fuentes's
personal and medical history, and clarified why he was accepting
the parties' recommendation for an above-Guidelines sentence:
The Court will vary from the advisory
guidelines in order to reflect the seriousness
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of the offenses, based on conduct dismissed as
part of the plea agreement, conduct that did
not enter into the determination of the
applicable guideline range, pursuant to the
provisions of sentencing guideline section
5K2.21. In addition to the counts of
conviction, Mr. Fuentes was also charged with
two counts of violation of being in possession
of a firearm in furtherance of a drug
trafficking crime, and one count of being a
felon in possession of a firearm. These counts
will be dismissed pursuant to the plea
agreement. The Court finds that the sentence
to which the parties agreed reflects the
seriousness of the offense, promotes respect
for the law, protects the public from further
crimes by Mr. Fuentes, and addresses the
issues of deterrence and punishment.
The district court meted out 144 months each on Counts
One and Three, "to be served concurrently with each other, but
consecutively to the sentence imposed by Judge Gelpi in Criminal
Case No. 17-148 and the revocation sentence imposed by Judge Cerezo
in Case No. 12-093."
Unhappy with the application of a consecutive sentence,
Fuentes timely appeals here and requests a remand for resentencing
before a different judge.6
ANALYSIS
What and How to Review
On appeal, Fuentes argues that his sentence was
procedurally and substantively unreasonable. The two purported
6 Given our affirmation of Fuentes's sentence his remand request
is moot.
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procedural errors are: 1) his sentence's consecutive, rather than
concurrent, application to his sentence for the March 1, 2017
firearm offense, and 2) that his CHC was calculated to be IV,
rather than III, leading to "an incorrect guideline imprisonment
range which should have been 63-78 months instead of 77-96 months."
And Fuentes argues that his sentence was substantively
unreasonable because of the "magnitude" of the district court's
purported procedural sentencing error.
Before we jump into the merits of Fuentes's arguments,
we must first address the metaphorical elephant in the Plea
Agreement -- at least when it comes to an appeal of a sentence
subject to such an agreement: the Waiver Provision. Generally,
"[s]uch a provision forecloses appellate review of many claims of
error." United States v. Chambers, 710 F.3d 23, 27 (1st Cir. 2013)
(citing United States v. Nguyen, 618 F.3d 72, 74–76 (1st Cir.
2010); United States v. Gil–Quezada, 445 F.3d 33, 36–39 (1st Cir.
2006)). But the government agrees with Fuentes and concedes, for
reason unimportant to this appeal, that the Waiver Provision in
Fuentes's Plea Agreement does not foreclose his ability to appeal
the consecutive nature of his sentence.
The parties disagree, however, as to whether the Waiver
Provision forecloses Fuentes's ability to now raise his secondary
argument that his sentence was procedurally unreasonable because
the district court "improperly increased Fuentes's[] criminal
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history category from III to IV which also created an incorrect
guideline imprisonment range which should have been 63-78 months
instead of 77-96 months." Fuentes argues that the Waiver Provision
does not foreclose appeal of this argument either, because the
same cause that gave rise to the first purported error (that the
sentence was applied consecutively) begot the secondary one --
that is, the court's failure to find the March 1 firearm offense
to be "relevant conduct" to the Humacao Robberies led to the
consecutive sentence and the improper CHC. The government
disagrees that Fuentes can now appeal the district court's CHC
determination for three reasons: 1) the Plea Agreement's Waiver
Provision wholesale forecloses Fuentes's CHC argument; 2) Fuentes
explicitly relinquished his CHC claim in front of the district
court at sentencing; and 3) Fuentes fails to present on appeal any
cognizable analysis that the court improperly applied the
Guidelines.
We agree with the government's first argument and
therefore need not opine on the last two. We elaborate some on
the first: Fuentes forsook his responsibility to demonstrate that
the Waiver Provision does not apply to his CHC argument when he
provided neither case law nor factual support for this contention
in his opening brief. And so "[w]here, as here, the defendant
simply ignores the waiver and seeks to argue the appeal as if no
waiver ever had been executed [as to the CHC contention], he
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forfeits any right to contend either that the waiver should not be
enforced or that it does not apply." United States v. Miliano,
480 F.3d 605, 608 (1st Cir. 2007); see United States v. Colón-
Rosario, 921 F.3d 306, 310 (1st Cir. 2019).7 We need say no more
and move onto our assessment of Fuentes's only reviewable argument.
Procedural Reasonableness
Fuentes says his sentence is procedurally unreasonable
because it runs consecutive to, rather than concurrent with, his
sentence for the March 1, 2017 firearm offense. Before getting
into the nitty gritty of the argument, we elucidate the lens
7 The court can, in its discretion, "forgive a defendant's failure
to brief the reasons why a waiver should not be construed to bar
an appeal -- but that discretion should be exercised only when
doing so is necessary in order to avoid a clear and gross
injustice." Miliano, 480 F.3d at 608. Such cases are rare, id.,
and this is clearly not such a case: (1) the Plea Agreement signed
by Fuentes contains a "clear statement elucidating the waiver and
delineating its scope," United States v. Villodas-Rosario, 901
F.3d 10, 15 (1st Cir. 2018) (quoting United States v. Teeter, 257
F.3d 14, 24 (1st Cir. 2001)); (2) "the district court ensure[d]
that '[Fuentes] freely and intelligently agreed to waive h[is]
right to appeal h[is] forthcoming sentence' by inquiring
'specifically at the change-of-the-plea hearing into any waiver of
appellate rights,'" id.; see also Transcript of Change of Plea
Hearing at 12, United States v. Freddie A. Fuentes-Moreno, No. 17-
CR-167 (FAB) (D. P.R. June 11, 2018), ECF No. 178 ("THE COURT: Do
you understand that if I do sentence you according to the terms,
conditions, and recommendations contained in the plea agreement,
you waive and give up your right to appeal your sentence and the
judgment in the case? DEFENDANT FUENTES[]: Yes."); and (3) "the
denial of the right to appeal would not 'work a miscarriage of
justice,'" id.; see also United States v. Calderón-Pacheco, 564
F.3d 55, 59 (1st Cir. 2009).
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through which we will review this argument -- that is, what
standard of review this court will apply.
Generally, courts of appeals review "[p]reserved claims
of sentencing error" for an abuse of discretion. United States v.
Soto-Soto, 855 F.3d 445, 448 (1st Cir. 2017). But the government
contends Fuentes did not preserve his arguments below and therefore
that they should be reviewed only for plain error. See id. Because
Fuentes loses even under the more defendant-friendly standard, we
opt to bypass the issue of preservation and review for abuse of
discretion. See United States v. Nieves-Mercado, 847 F.3d 37, 41
(1st Cir. 2017) ("The government contends that the plain error
standard applies to certain of Nieves's arguments on appeal, but
we sidestep that question because Nieves's arguments fail under
even the more favorable abuse of discretion standard."); United
States v. Figueroa-Figueroa, 791 F.3d 187, 190–91 (1st Cir. 2015).
Reviewing a sentencing determination "under [the abuse
of discretion] standard generally involves a two-step process:
First, we determine whether the district court committed
procedural error. Second, if there was no procedural error, we
determine whether the sentence was substantively reasonable."
United States v. Maldonado-Escarfullery, 689 F.3d 94, 97 (1st Cir.
2012) (citing Gall v. United States, 552 U.S. 38, 51 (2007));
United States v. Ruiz-Huertas, 792 F.3d 223, 226 (1st Cir. 2015).
That said, "our abuse of discretion standard in this context [i]s
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'multifaceted,' as we apply clear error review to factual findings,
de novo review to interpretations and applications of the
guidelines, and abuse of discretion review to judgment calls."
Nieves-Mercado, 847 F.3d at 42 (citing United States v. Serunjogi,
767 F.3d 132, 142 (1st Cir. 2014)).
What underlies Fuentes's assertion that his sentence is
procedurally unreasonable because it should have been a concurrent
rather than a consecutive sentence is one singular decision by the
district court: that it did not find Fuentes had used the same
gun in his March 1 firearm offense as in the Humacao Robberies.
Fuentes argues that this misstep had a ripple effect which led the
court to not have deemed the March 1 firearm offense "relevant
conduct" to the Humacao Robberies, and, in turn, this "denial of
relatedness" caused the district court to abuse its discretion
when it imposed the consecutive sentence. We review that alleged
failure -- the district court's factual finding -- for clear error,
id., remembering that a "significant procedural error" arises when
a district court "select[s] a sentence based on clearly erroneous
facts" or "[improperly calculates] the Guidelines range." United
States v. Sayer, 916 F.3d 32, 37 (1st Cir. 2019) (quoting Gall,
552 U.S. at 51). As we'll see, neither arises here.
Before we delve deeply into Fuentes's argument, we take
a quick detour to explain how Fuentes connects the U.S. Sentencing
Guidelines dots to get from the alleged use of the same gun in two
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different offenses to the supposed compelled imposition of a
concurrent sentence. From there we will turn to an analysis of
the district court's factual determination and then close out our
discussion with an analysis of the substantive reasonableness of
the sentence.
The Sentencing Guidelines8
Fuentes first points to U.S.S.G. § 1B1.3(1) for its
definition of "relevant conduct." United States v. Santiago-
Burgos, 750 F.3d 19, 24 (1st Cir. 2014). U.S.S.G. § 1B1.3(a)(1)-
(3) establishes "relevant conduct" as:
(1) (A) all acts and omissions committed,
aided, abetted, counseled, commanded,
induced, procured, or willfully caused by the
defendant; and
(B) in the case of a jointly undertaken
criminal activity (a criminal plan,
scheme, endeavor, or enterprise
undertaken by the defendant in concert
with others, whether or not charged as a
conspiracy), all acts and omissions of
others that were—
(i) within the scope of the jointly
undertaken criminal activity,
(ii) in furtherance of that criminal
activity, and
(iii) reasonably foreseeable in
connection with that criminal
activity; that occurred during the
commission of the offense of
conviction, in preparation for that
offense, or in the course of
8 The district court applied the November 1st, 2016 Edition of the
Sentencing Guidelines "because the Sentencing Commission did not
promulgate any new amendments to become effective on November 1,
2017."
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attempting to avoid detection or
responsibility for that offense;
(2) solely with respect to offenses of a
character for which § 3D1.2(d) would require
grouping of multiple counts, all acts and
omissions described in subdivisions (1)(A) and
(1)(B) above that were part of the same course
of conduct or common scheme or plan as the
offense of conviction;
(3) all harm that resulted from the acts and
omissions specified in subsections (a)(1) and
(a)(2) above, and all harm that was the object
of such acts and omissions[.]
U.S.S.G. § 1B1.3(a)(1)-(3) (emphasis added). The Commentary to
this section sheds more light on the emphasized text.9 See United
States v. McElroy, 587 F.3d 73, 88 (1st Cir. 2009) ("In determining
whether state tax evasion constitutes relevant conduct, we look to
the commentary to § 1B1.3.").
The reference to U.S.S.G. § 3D1.2(d) in U.S.S.G.
§ 1B1.3(1) draws us to look there:
All counts involving substantially the same
harm shall be grouped together into a single
Group. Counts involve substantially the same
harm within the meaning of this rule: . . .
(d) When the offense level is determined
9 To qualify as part of a same "common scheme or plan," the acts
"must be substantially connected to each other by at least one
common factor, such as common victims, common accomplices, common
purpose, or similar modus operandi." U.S.S.G. § 1B1.3, cmt.
n.5(B)(i). Where the offenses do not qualify as part of a common
scheme or plan, they "may nonetheless qualify as part of the same
course of conduct if they are sufficiently . . . related" as to
conclude "they are part of a single episode, spree, or ongoing
series of offenses." Id. at cmt. n.5(B)(ii). Factors used in
making this course of conduct determination include "the degree of
similarity of the offenses, the regularity (repetitions) of the
offenses, and the time interval between the offenses." Id.
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largely on the basis of the total amount of
harm or loss, the quantity of a substance
involved, or some other measure of aggregate
harm, or if the offense behavior is ongoing or
continuous in nature and the offense guideline
is written to cover such behavior.
U.S.S.G. § 3D1.2(d) (emphasis added).10
Fuentes argues that the district court should have read
these Sentencing Guidelines provisions together to deem the March
1 firearm offense "relevant conduct" to the Humacao Robberies,
since, in his mind, the (allegedly) same gun "was singular as to
both offenses and constituted 'part of the same conduct or common
scheme or plan as the offense of conviction.'" Fuentes then argues
that finding the March 1 firearm offense to be "relevant conduct"
to the Humacao Robberies would trigger an application of U.S.S.G
§ 5G1.3(b)11 to compel the instant sentence to run concurrent with
10 The government points out that Fuentes's citation to U.S.S.G.
§ 3D1.2(c), in addition to U.S.S.G. § 3D1.2(d), in his opening
brief is inappropriate because U.S.S.G. § 1B1.3(a)(1)-(3) does
not, in fact, reference that subsection. Since Fuentes provides
no argument as to why 3D1.2(c) is relevant in this context, we
need not consider it. United States v. Zannino, 895 F.2d 1, 17
(1st Cir. 1990).
11 That guideline reads:
If . . . a term of imprisonment resulted from
another offense that is relevant conduct to
the instant offense of conviction under the
provisions of subsections (a)(1), (a)(2), or
(a)(3) of § 1B1.3 (Relevant Conduct), the
sentence for the instant offense shall be
imposed as follows: (1) the court shall adjust
the sentence for any period of imprisonment
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the "undischarged" sentence (for the March 1 firearm offense).
U.S.S.G § 5G1.3(b).
The government counters with its own Guidelines
arguments: first, that Fuentes waived his right to assert the
application of U.S.S.G. § 5G1.3 because he failed to raise it at
sentencing, and even if he did not waive that argument, it should
be reviewed only for plain error. Second, that because robbery is
not an offense eligible for grouping with a prior felon-in-
possession offense under U.S.S.G. § 3D1.2(d), the March 1 firearm
offense cannot be "relevant conduct" to the Humacao Robberies; and
even if the robberies were eligible for such grouping, they did
not occur, as required by U.S.S.G. § 1B1.3, in preparation, during
the commission, or in the course of attempting to avoid detection
or responsibility, for the March 1 firearm offense, and therefore
the latter is not "relevant conduct" to the former.
Our Take
Although we have considered the arguments Fuentes
advances on appeal, in the end, his relevant conduct contentions
rise or fall on our resolution of one issue: whether the district
already served on the undischarged term of
imprisonment if the court determines that such
period of imprisonment will not be credited to
the federal sentence by the Bureau of Prisons;
and (2) the sentence for the instant offense
shall be imposed to run concurrently to the
remainder of the undischarged term of
imprisonment.
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court clearly erred in its fact finding. The "court's application
of U.S.S.G. § 1B1.3 depend[s] on an evaluation and weighing of the
factual details." United States v. McVey, 752 F.3d 606, 610 (4th
Cir. 2014); see also United States v. Montalvo-Febus, 930 F.3d 30,
33-35 (1st Cir. 2019).
The District Court's Factual Determination
Fuentes, as defendant, bore the burden of demonstrating
the facts necessary for the district court to conclude that the
March 1 firearm offense was relevant conduct to the Humacao
Robberies. See United States v. Rentas-Muñiz, 887 F.3d 1, 4 (1st
Cir. 2018); Santiago-Burgos, 750 F.3d at 24; United States v.
Carrasco-De-Jesús, 589 F.3d 22, 28 (1st Cir. 2009) ("A defendant
bears the burden of proving the applicability of a guideline
provision that will ameliorate [his] sentence."); United States v.
Schrode, 839 F.3d 545, 551 (7th Cir. 2016) (explaining that it is
"the defendant's burden to demonstrate that the conduct which led
to his [previous] sentences is relevant conduct to his [instant]
offense"). To carry this burden, Fuentes, as noted, offered just
one fact: that he had used the same gun for the Humacao Robberies
as for the March 1 firearm offense.12 Fuentes argues that he met
12 During sentencing the district judge himself asked: "[w]hy
should it be relevant conduct if just using the same firearm?"
The parties offered no answer at the time (nor do they now), and
because we can resolve this issue on other grounds, we need not
ponder this question here.
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his burden of proving this fact and the district court was wrong
to find otherwise. The government disagrees.
Fuentes urges that two separate statements he made to
law enforcement in connection with both offenses reinforce each
other to prove that he used the same gun for both. The first is
that "when he was arrested on March 1, 2017 with the Glock pistol
object of indictment in [Case No.] 17-148 . . . Fuentes[] . . .
informed [the agents] that[] 'he was the owner of [the] Glock
pistol . . . . When asked for more information about how he had
obtained the firearm, Fuentes[] stated he had bought the pistol
after he got out of jail months ago.'"13 Fuentes argues that
"[w]hat made [this statement] particularly trustworthy [wa]s the
fact that when he was detained on March 1, 2017 . . . he had not
even been identified nor indicted for the [Humacao Robberies],"
giving him "no reason to lie at that time or to make up a story
about when he purchased the firearm." Tracing Fuentes's logic, we
understand he believes that since in this statement he owned up to
purchasing the gun used in the March 1 firearm offense "after he
got out of jail months ago," he must have used that same gun during
the February Humacao Robberies.
13 This complaint and particular statement were not presented to
the district court at all. See supra note 5. Because we find,
even if this complaint were properly in the record for our review,
that Fuentes's argument would fail, we bypass this issue.
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The second statement involves Fuentes's "Pre-Sentence
Report interview in [the Humacao Robberies], [during which]
Fuentes[] informed the probation officer that the pistol he had
used [during the Humacao Robberies] [wa]s the same that he was
charged with in [Case No.] 17-148 [the March 1 firearm offense]."
Fuentes argues that his "assertion[s] had sufficient indicia of
reliability," and that the district court was wrong to "requir[e]
the self-made rule of corroboration" when it noted at sentencing
that "[t]he probation officer wasn't able to corroborate" that the
same gun had been used.
What Fuentes misses, however, is that "a sentencing
court has wide discretion to decide whether particular evidence is
sufficiently reliable to be used at sentencing." Montalvo-Febus,
930 F.3d at 35 (quoting United States v. Cintrón-Echautegui, 604
F.3d 1, 6 (1st Cir. 2010)); see also United States v. Mills, 710
F.3d 5, 16 (1st Cir. 2013) ("the court has considerable leeway in
deciding whether particular evidence is reliable enough for
sentencing purposes"). Beyond the statements Fuentes points to,
he presented no other evidence that the same gun was used. Fuentes
complains that the government's inability to verify the identity
of the gun should not damn his case, but other than his bare
statements, he provides no other affirmative confirmation --
physical, testing, or otherwise -- that it was the same gun. The
burden was on Fuentes, and we cannot say the district court clearly
- 23 -
erred in not buying his story. United States v. Torres-Landrúa,
783 F.3d 58, 64 (1st Cir. 2015) ("We have recognized that the
district court has 'almost unfettered discretion in determining
what information it will hear and rely upon in sentencing
deliberations,' and to decide 'not only the relevance but also the
reliability of the sentencing information.'" (quoting United
States v. Geer, 923 F.2d 892, 897 (1st Cir. 1991) (internal
quotation marks and citations omitted))); United States v.
Gallardo-Ortiz, 666 F.3d 808, 811 (1st Cir. 2012) ("the sentencing
judge may consider all relevant information that has 'sufficient
indicia of reliability to support its probable accuracy' . . . the
sentencing court 'has wide discretion to decide whether particular
evidence is sufficiently reliable to be used at sentencing.'"
(quoting Cintrón–Echautegui, 604 F.3d at 6)); Carrasco-De-Jesús,
589 F.3d at 28 ("A lack of evidence on a critical point is an
insurmountable obstacle for the party who has the burden of proof
on that point."); see also Santiago-Burgos, 750 F.3d at 24; United
States v. Cruz-Rodríguez, 541 F.3d 19, 36 (1st Cir. 2008).
Therefore, viewing the record as a whole and finding no
clear error, it follows that the district court did not abuse its
discretion in imposing a consecutive sentence. See Figueroa-
Figueroa, 791 F.3d at 191–93; United States v. Freeman, 788 F.
App'x 7, 7-8 (D.C. Cir. 2019).
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Substantive Reasonableness
Fuentes preserved his "appellate challenge to the
substantive reasonableness of [his] sentence," Holguin-Hernandez
v. United States, 140 S. Ct. 762, 766–67 (2020), when he advocated
for a concurrent sentence in front of the district court, and so
we review here for abuse of discretion. Id. Both parties here
agree that "the inquiry for substantive reasonableness is whether
the sentencing rationale is plausibly reasoned and resulted in a
defensible outcome." United States v. Alejandro-Rosado, 878 F.3d
435, 440 (1st Cir. 2017).
But Fuentes's argument that his sentence was
substantively unreasonable wears thin. From what we can understand
in his opening brief, Fuentes claims that since the above-
Guidelines 144-month sentence accounted for the dismissed counts
that dealt with firearm possession (Counts Two, Four, and Five),
imposing the sentence consecutively, rather than concurrently, to
Fuentes's March 1 firearm offense was substantive error.
Essentially, he argues that the "magnitude" of the district court's
procedural sentencing error "should lead [this court] to conclude
that substantive sentencing error also occurred."
The government, of course, thinks otherwise and that
Fuentes's 144-month consecutive sentence was substantively
reasonable, since it: 1) was well below the 20-year statutory
maximum for the robbery offenses; 2) matched what the parties had
- 25 -
agreed to in the Plea Agreement; and 3) was supported by a
plausible and defensible rationale and sufficient explanation from
the district court. The government notes that the district court
in imposing the sentence had "properly relied on the nature,
seriousness and circumstances of the offense, the significant deal
obtained with the [P]lea [A]greement, Fuentes's lack of respect
for the law, the need for deterrence, and the need to protect the
public from further crimes by Fuentes."
"As a general matter, a reviewing court is not at liberty
to second-guess a sentencing court's reasoned judgments about
matters committed to the sentencing court's discretion." United
States v. Matos-de-Jesús, 856 F.3d 174, 179 (1st Cir. 2017).
"Consistent with this principle, the substantive reasonableness of
a sentence turns on whether the sentencing court articulated 'a
plausible sentencing rationale' and reached 'a defensible
result.'" Id. (citing United States v. Martin, 520 F.3d 87, 96
(1st Cir. 2008)). "There is more than one reasonable sentence in
virtually any case, and we will vacate a procedurally correct
sentence as substantively unreasonable only if it lies outside the
expansive boundaries that surround the universe of reasonable
sentences." Id. (internal quotations omitted). "This is a highly
deferential standard of review, and it applies full-bore to non-
guideline sentences." Id. (citing United States v. Vargas-García,
794 F.3d 162, 167 (1st Cir. 2015)).
- 26 -
We conclude that the district court provided "a
plausible sentencing rationale and a defensible result." Nieves-
Mercado, 847 F.3d at 42 (citing Martin, 520 F.3d at 96). The
district court spelled out its rationale during sentencing:
The Court will vary from the advisory
guidelines in order to reflect the seriousness
of the offenses, based on conduct dismissed as
part of the plea agreement, conduct that did
not enter into the determination of the
applicable guideline range, pursuant to the
provisions of sentencing guideline section
5K2.21. In addition to the counts of
conviction, Mr. Fuentes was also charged with
two counts of violation of being in possession
of a firearm in furtherance of a drug
trafficking crime, and one count of being a
felon in possession of a firearm. These counts
will be dismissed pursuant to the plea
agreement. The Court finds that the sentence
to which the parties agreed reflects the
seriousness of the offense, promotes respect
for the law, protects the public from further
crimes by Mr. Fuentes, and addresses the
issues of deterrence and punishment.
This articulation, combined with a recitation of Fuentes's
personal characteristics,14 allows us to determine that the
14 The district court recited:
Mr. Fuentes is 27 years old. He has not
completed high school and was unemployed when
he committed his offenses. He has one son.
He is physically healthy, but was receiving
mental health treatment while on supervised
release . . . family members have indicated
that Mr. Fuentes may suffer from attention
deficit hyperactivity disorder. There is a
history of schizophrenia in his family. He
has reported history of using and
- 27 -
sentence was "plausibly reasoned." See Alejandro-Rosado, 878 F.3d
at 441 ("Where district courts stress the factors that lead to its
sentence and explain the purposes for the sentence, we have upheld
its reasoning."). The sentence is further "defensible" where, as
here, the imposed sentence is identical to that agreed-upon by the
parties in the Plea Agreement, which itself notes that Fuentes was
"aware that his sentence [was] within the sound discretion of the
sentencing judge . . . [and] that the [district court] [was] not
. . . bound by the [Plea Agreement] or the sentencing calculations
and recommendations contained [t]herein."15 See, e.g., United
States v. Vega-Salgado, 769 F.3d 100, 103 (1st Cir. 2014); cf.
United States v. Bermúdez–Meléndez, 827 F.3d 160, 166–67 (1st Cir.
2016) (finding substantively reasonable a sentence that was a
"modest increase over the sentence [] that the appellant himself
thought condign").
When it comes down to it, Fuentes's "only argument as to
substantive unreasonableness is that his sentence was 'marred' by
[a] procedural error," Montalvo-Febus, 930 F.3d at 35 (citing
United States v. Pedroza-Orengo, 817 F.3d 829, 837 (1st Cir. 2016))
-- that the district court did not find that Fuentes had used the
experimenting with cocaine, and with Percocet
and Xanax pills without a prescription.
15The parties do not dispute that the plea colloquy sufficiently
confirmed Fuentes's comprehension of this aspect of the Plea
Agreement.
- 28 -
same gun in the March 1 firearm offense as in the Humacao
Robberies, thereby declining to deem the March 1 firearm offense
"relevant conduct." But that is a "premise we have [already]
rejected." Id. And "[b]eyond that, the facts of this case fully
justify the sentence, which 'resides within the expansive universe
of reasonable sentences.'" Id.
CONCLUSION
Having resolved Fuentes's core complaint in the
government's favor, we find that the district court did not abuse
its discretion in imposing a consecutive sentence. Affirmed.
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