United States v. Rivera-Berrios ( 2020 )

United States Court of Appeals
For the First Circuit
No. 19-1467
UNITED STATES OF AMERICA,
Appellee,
v.
JULIAN G. RIVERA-BERRÍOS,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Francisco A. Besosa, U.S. District Judge]
Before
Thompson, Selya, and Barron,
Circuit Judges.
Rafael F. Castro Lang on brief for appellant.
W. Stephen Muldrow, United States Attorney, Mariana E. Bauzá-
Almonte, Assistant United States Attorney, Chief, Appellate
Division, and Antonio L. Perez-Alonso, Assistant United States
Attorney, on brief for appellee.
August 3, 2020
SELYA, Circuit Judge. After defendant-appellant Julian
G. Rivera-Berríos entered a guilty plea to a single count charging
him with illegal possession of a machine gun, see 18 U.S.C.
§ 922(o)(1), the district court sentenced him to a forty-two-month
term of immurement — a year above the top of the guideline
sentencing range. The appellant challenges this upwardly variant
sentence, asserting that the sentencing court erred by (among other
things) varying upward from the range without adequately
distinguishing his case from the mine-run of machine gun possession
cases. Because the record reveals nothing that distinguishes this
case from a garden-variety machine gun possession case within the
contemplation of the sentencing guidelines, we vacate the
appellant's sentence and remand for resentencing within the
guideline sentencing range.
I. BACKGROUND
We briefly rehearse the relevant facts and travel of the
case. When — as in this instance — a sentencing appeal follows a
guilty plea, we glean the facts from the plea colloquy, the
presentence investigation report (PSI Report), and the transcript
of the disposition hearing. See United States v. Miranda-Díaz,
942 F.3d 33, 37 (1st Cir. 2019).
In July of 2018, law enforcement officers were
surveilling a restaurant in Bayamón, Puerto Rico, hoping to locate
a federal fugitive. During this surveillance, the officers
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observed the appellant, then age twenty-eight, interacting with
the fugitive. When some of the officers entered the restaurant to
effectuate the fugitive's arrest, other officers (charged with
perimeter security) saw the appellant toss a firearm and a detached
magazine out of a window. The firearm proved to be a Glock machine
pistol equipped with a device that enabled it to fire automatically
and loaded with a high-capacity magazine containing eighteen
rounds. The detached magazine carried a like number of rounds.
The appellant was arrested, and a federal grand jury
sitting in the District of Puerto Rico indicted him within a matter
of days. The indictment contained two counts, one charging the
appellant with being a felon in possession of a firearm and
ammunition, see 18 U.S.C. § 922(g)(1), and the second charging him
with illegally possessing a machine gun, see id. § 922(o)(1). The
appellant initially maintained his innocence as to both charges.
In January of 2019, the appellant reversed his field and
entered a straight guilty plea to the charge of illegal possession
of a machine gun.1 Thereafter, the probation office prepared and
submitted the PSI Report. The Report noted that the appellant had
been living with his girlfriend and their two young children, that
he had worked at various jobs, that he had no prior criminal
1Subsequent to the return of the indictment, the government
realized that the appellant had never been convicted of any
previous crime. Consequently, it dropped the felon-in-possession
charge.
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record, and that he claimed to have purchased the firearm for self-
protection. It also noted his frequent use of marijuana. After
reviewing the details of the offense and finding no aggravating
circumstances warranting a variance — for example, there was no
evidence that the appellant had employed the gun in any criminal
venture or (for that matter) had ever used it — the PSI Report
calculated the guideline sentencing range as twenty-four to thirty
months.2 Neither the government nor the appellant challenged this
calculation, and both sides recommended that the court impose a
sentence at the low end of the range.
Before imposing sentence, the district court mentioned
a few biographical facts pertaining to the appellant. Shifting
gears, the court spoke at some length about the incidence of
machine guns and related violence in Puerto Rico. The court then
sentenced the appellant to an upwardly variant term of immurement:
forty-two months. This timely appeal followed.
2 The underlying computations are straightforward. With
exceptions not relevant here, the statute of conviction makes it
"unlawful for any person to transfer or possess a machinegun." 18
U.S.C. § 922(o)(1). Building on this proscription, the guidelines
assign a base offense level of twenty to a prohibited person in
illegal possession of a machine gun. See USSG §2K2.1(a)(4)(B).
Here, the base offense level was reduced by three levels for
acceptance of responsibility. See id. §3E1.1. Because the
appellant was a first-time offender, he registered a criminal
history score of zero and fell into criminal history category I.
His total offense level of seventeen, paired with his criminal
history category, yielded the guideline sentencing range.
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II. ANALYSIS
We review preserved claims of sentencing error for abuse
of discretion. See Gall v. United States, 552 U.S. 38, 46 (2007);
United States v. Martin, 520 F.3d 87, 92 (1st Cir. 2008). Under
this approach, we assay the sentencing court's factual findings
for clear error and evaluate its legal conclusions de novo. See
United States v. Díaz-Lugo, 963 F.3d 145, 151 (1st Cir. 2020);
United States v. Flores-Machicote, 706 F.3d 16, 20 (1st Cir. 2013).
Typically, we first examine claims of procedural error and inquire
into the substantive reasonableness of a sentence only after it
has passed procedural muster. See Miranda-Díaz, 942 F.3d at 39;
Martin, 520 F.3d at 92.
Here, the government contends that we should review the
appellant's procedural claims for plain error because (in its view)
his objections below lacked sufficient specificity. We reject
this contention. To preserve a claim of procedural sentencing
error for appellate review, a defendant's objection need not be
framed with exquisite precision. See United States v. Soto-Soto,
855 F.3d 445, 448 n.1 (1st Cir. 2017); cf. Bryant v. Consol. Rail
Corp., 672 F.2d 217, 220 (1st Cir. 1982) (explaining that counsel
did not have to "cite to the specific rule or use any particular
form of words" to preserve evidentiary objection). It is enough
if the objection is "sufficiently specific to call the district
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court's attention to the asserted error." Soto-Soto, 855 F.3d at
448 n.1.
In the court below, the appellant's counsel made clear
that he believed that the sentence was "excessive" and that the
court had not articulated any cognizable grounds that would support
an upward variance. We think those statements were adequate to
preserve the appellant's principal claim of procedural error: that
the district court impermissibly grounded its upward variance on
an improper factor (that is, a factor already fully accounted for
by the applicable guidelines). Consequently, we review this claim
for abuse of discretion.
Having clarified the standard of review, we proceed to
put this claim of procedural error into perspective. To do so, we
first revisit the basic architecture of the advisory sentencing
guidelines. Our starting point is the Sentencing Reform Act of
1984, Pub. L. No. 98-473, tit. II, ch. II, 98 Stat. 1987, in which
Congress crafted a neoteric framework for imposing sentences in
federal criminal cases. As relevant here, the statutory scheme
lays out a myriad of factors that a sentencing court "shall
consider" and requires that the court "state . . . the reasons"
for its choice of a particular sentence. 18 U.S.C. § 3553(a),
(c).
Although articulating this statement of reasons does not
require a sentencing court to offer an explanation of its
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sentencing decision that is "precise to the point of pedantry,"
United States v. Sepúlveda-Hernández, 817 F.3d 30, 33 (1st Cir.
2016) (quoting United States v. Turbides-Leonardo, 468 F.3d 34, 40
(1st Cir. 2006)), the explanation must elucidate the primary
factors driving the imposed sentence, see United States v. Rivera-
Morales, 961 F.3d 1, 18 (1st Cir. 2020). This requirement serves
as an important check on the sentencing court. As we have
cautioned, just because "a sentencing court possesses the raw power
to deviate from the guidelines does not mean that it can (or
should) do so casually." Martin, 520 F.3d at 91. The extent of
the explanation required will vary in direct proportion to how far
— if at all — the sentencing court strays from the guideline
sentencing range. See United States v. Montero-Montero, 817 F.3d
35, 37 (1st Cir. 2016) (observing that burden to provide
explanation "grows heavier" when sentence is outside guideline
sentencing range). It follows that when a court imposes an
upwardly variant sentence, it must provide a correspondingly
cogent explanation. See United States v. Fields, 858 F.3d 24, 31
(1st Cir. 2017); Montero-Montero, 817 F.3d at 37.
Before announcing its sentence, the district court
described the factual circumstances surrounding the offense of
conviction, embraced the guideline calculations limned in the PSI
Report, and offered a two-sentence biography of the appellant. It
then dwelled at some length on the pervasiveness of violent crime,
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murder, and machine guns in Puerto Rico. The court made pellucid
that the driving force behind the upward variance — a full year
over the top of the guideline sentencing range — was the nature of
the firearm that the appellant possessed: a machine gun.
The appellant assigns error, arguing that the nature of
the firearm, without more, was insufficient to warrant the upward
variance. In his view, the guideline sentencing range already
fully accounted for the nature of the firearm, and the court never
pointed out any way in which his offense conduct differed from the
mine-run of ordinary machine gun possession cases. We turn
directly to this argument.
The guideline provision underpinning the appellant's
base offense level is USSG §2K2.1(a)(4)(B). In pertinent part,
this provision directs a base offense level of twenty if the
"offense involved" a "firearm that is described in 26 U.S.C.
§ 5845(a)" and the defendant was a "prohibited person" at the time
of the offense. In turn, 26 U.S.C. § 5845(a) includes "machinegun"
in its definition of "firearm," and section 5845(b) defines a
machine gun as "any weapon which shoots . . . automatically more
than one shot, without manual reloading, by a single function of
the trigger."3 The guideline sentencing range was derived largely
3 The appellant does not dispute either that his firearm
qualified as a machine gun or that, as a marijuana user, he was a
prohibited person, see 18 U.S.C. § 922(g)(3); USSG §2K2.1, cmt.
n.3.
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from this guideline provision, with routine adjustments. See supra
note 2. In varying upward from this range, the sentencing court
appears to have relied on nothing beyond the mere fact that the
offense of conviction involved a machine gun. The court did not
identify any aggravating circumstance related to the appellant —
a first-time offender. Nor did it identify any aggravating
circumstance related to the offense of conviction — a non-violent
and victimless crime. And, finally, our independent review of the
record discloses no aggravating circumstances.
By the same token, the government — in its presentation
at sentencing — identified no aggravating circumstances. Indeed,
by recommending the imposition of a sentence at the low end of the
guideline sentencing range, the government implicitly conceded the
absence of any such exacerbation.
In its appellate brief, the government does mention,
albeit in passing, two potentially aggravating circumstances.
First, it alludes to the number of rounds of ammunition found in
the appellant's possession. In this instance, though, the amount
of ammunition was entirely consistent with simple possession of a
machine gun. There was no large cache of ammunition.
Second, the government says that the appellant committed
the offense of conviction "while he was seen with a federal
fugitive and his co-defendant . . . , who [later] pleaded guilty
to being a convicted felon in possession of two pistol magazines."
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The appellant told the probation officer, without contradiction,
that he was at the restaurant with "friends" and that he knew his
codefendant "from school gatherings." The record contains nothing
to show that the appellant knew the fugitive. Nor does it contain
anything to show that the appellant knew of his friends' criminal
ties and, in any event, he was free to socialize with whomever he
pleased. In the absence of some valid restriction on the
appellant's freedom of association (say, a probation condition) or
some indication of a joint venture, the company that the appellant
kept, without more, would not support an upward variance.
As far as we can tell, the sole factor upon which the
sentencing court relied as a basis for the upward variance was the
nature of the firearm involved in the offense of conviction — and
the court did not explain why this factor, which was already fully
accounted for by the sentencing guidelines, was entitled to extra
weight. Instead, the court's explanation of its sentence focused
almost exclusively on the "highly dangerous and unusual" nature of
machine guns in general. It noted the efficient lethality of such
weapons, stating that "[a] modern machine gun can fire more than
one thousand round[s] a[] minute allowing a shooter to kill dozens
of people within a matter of seconds"; and it also noted the
inherently illegal nature of machine guns, stating that "machine
guns largely exist on the black market." These concerns are
universal in their application, and we have no reason to believe
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that they were not factored into the mix when the Sentencing
Commission set the base offense level for the offense of
conviction.
It is settled beyond hope of contradiction "that 'when
a sentencing court relies on a factor already accounted for by the
sentencing guidelines to impose a variant sentence, [it] must
indicate what makes that factor worthy of extra weight.'" Díaz-
Lugo, 963 F.3d at 155 (alteration in original) (quoting Fields,
858 F.3d at 32); see United States v. Zapete-Garcia, 447 F.3d 57,
60 (1st Cir. 2006). The factor relied on by the district court —
that the offense involved a machine gun — was already fully
accounted for in the guideline calculus. And the record is devoid
of any basis for giving that factor extra weight here. We
conclude, therefore, that the appellant's possession of a machine
gun, unaccompanied by any hint of an explanation as to how his
crime differed from the mine-run of machine gun possession cases
within the contemplation of the sentencing guidelines, was
insufficient by itself to support the upward variance.
To be sure, in explicating the sentence, the district
court remarked "that violent crimes and murder are occurring at
all hours of the day in Puerto Rico, in any place on the island,
even on congested public highways, in shopping centers, public
basketball courts, and at cultural events." But even though such
community characteristics may be relevant at sentencing, see
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United States v. Ortiz-Rodríguez, 789 F.3d 15, 19 (1st Cir. 2015),
"the section 3553(a) factors must be assessed in case-specific
terms." Flores-Machicote, 706 F.3d at 23. In other words, a
"court's appraisal of community-based considerations does not
relieve its obligation to ground its sentencing determination in
individual factors related to the offender and the offense."
United States v. Rivera-González, 776 F.3d 45, 50 (1st Cir. 2015).
It is that case-specific nexus that is totally lacking in this
case. See United States v. Ofray-Campos, 534 F.3d 1, 44 (1st Cir.
2008) (concluding that "generic reference to 'violence' . . . did
not justify" upward variance imposed).
The government's appellate brief does not fill this
void. Attempting to justify the upward variance, it argues that
we should give decretory significance to the sentencing court's
statement that it considered all of the section 3553(a) factors.
But the mere fact that the court considered all of the relevant
factors cannot justify an upward variance when those factors,
whether taken singly or in combination, do not form a permissible
basis for an upward variance. See Flores-Machicote, 706 F.3d at
21.
So, too, the district court referenced "the seriousness
of the offense," the need to "promote[] respect for the law" and
"protect[] the public from further crimes by [the appellant]," and
the importance of "deterrence and punishment." These concerns,
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too, are generic: they apply to any defendant in any machine gun
possession case. Unmoored from any individual characteristics of
either the offender or the offense of conviction — and the district
court constructed no such mooring — they cannot serve as building
blocks for an upward variance. See Flores-Machicote, 706 F.3d at
21 ("When a court varies from the [guideline sentencing range],
its reasons for doing so 'should typically be rooted either in the
nature and circumstances of the offense or the characteristics of
the offender.'" (quoting Martin, 520 F.3d at 91)).
We summarize succinctly. The sentencing guidelines are
meant to cover the mine-run of particular crimes, see Spears v.
United States, 555 U.S. 261, 264 (2009) (per curiam); see also
USSG ch. 1, pt. A (1)(4)(b), thus ensuring a modicum of uniformity
in sentencing. Although the sentencing guidelines are advisory,
see United States v. Booker, 543 U.S. 220, 245 (2005), and a
district court has the authority to vary upward from a properly
calculated guideline sentencing range, it may exercise that
authority only if some special characteristic attributable either
to the offender or to the offense of conviction serves to remove
a given case from the mine-run, see Ortiz-Rodríguez, 789 F.3d at
19. Where, as here, the sentencing court has not identified any
such characteristic and the record reveals none, an upwardly
variant sentence cannot endure.
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To say more would be to paint the lily. Given that the
sentencing guidelines fully accounted for the nature of the firearm
involved in the offense of conviction, the sentencing court abused
its discretion in relying upon that factor to fashion an upwardly
variant sentence. See id. at 18-19; Ofray-Campos, 534 F.3d at 43.
And because the record reveals no circumstance that could justify
an upwardly variant sentence in this case, we vacate the challenged
sentence and remand for resentencing within the guideline
sentencing range.
III. CONCLUSION
We need go no further and — in particular — we need not
resolve the appellant's other challenges to his upwardly variant
sentence. Based on the reasoning elucidated above, we vacate the
appellant's sentence and remand to the district court for
resentencing consistent with this opinion.
Vacated and remanded. Judgment to issue forthwith.
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