United States v. Rivera-Berrios ( 2023 )

Not for Publication in West's Federal Reporter
United States Court of Appeals
For the First Circuit
No. 22-1681
UNITED STATES OF AMERICA,
Appellee,
v.
JULIÁN G. RIVERA-BERRÍOS,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Aida M. Delgado-Colón, U.S. District Judge]
Before
Barron, Chief Judge,
Selya and Thompson, Circuit Judges.
José David Rodríguez, Research and Writing Specialist, with
whom Eric Alexander Vos, Federal Public Defender, and Franco L.
Pérez-Redondo, Assistant Federal Public Defender, Supervisor,
Appeals Section, were on brief, for appellant.
Thomas F. Klumper, Assistant United States Attorney, with
whom W. Stephen Muldrow, United States Attorney, and Mariana E.
Bauzá-Almonte, Assistant United States Attorney, Chief, Appellate
Division, were on brief, for appellee.
April 20, 2023
SELYA, Circuit Judge. Defendant-appellant Julián G.
Rivera-Berríos appeals from the imposition of a nine-month term of
immurement following the revocation of his term of supervised
release. We summarily affirm.
We need not tarry. We review revocation sentences for
abuse of discretion, see United States v. Gallo, 20 F.3d 7, 13
(1st Cir. 1994); see also United States v. Márquez-García, 862
F.3d 143, 145 (1st Cir. 2017); United States v. Soto-Soto, 855
F.3d 445, 448 (1st Cir. 2017), and we discern none here.
The appellant's attack on his revocation sentence is
narrowly focused. At sentencing, the appellant proffered — for
the first time — a claim of recent employment. According to the
appellant, the district court "found the employment was a sham"
and "[a]s such, the court transformed a mitigating fact
(employment) into an aggravating circumstance." This misguided
outlook, the appellant says, infected the whole of the sentencing
proceeding and irrevocably tainted the court's resolution of the
matter. But the sentencing record tells a different tale.
The court's bench decision, revoking the appellant's
term of supervised release and imposing the challenged sentence,
is emblematic. The court began by briefly mentioning the unsigned
"employment letter" that the appellant first presented at the
revocation hearing. The court stated that this document had been
tendered "on the very last minute," that it was "highly
- 3 -
convenient," and that it was not "good evidence." The court,
therefore, declined to credit the evidence in mitigation, and that
decision was well within the encincture of the court's discretion.
Cf. United States v. Cintrón-Echautegui, 604 F.3d 1, 6 (1st Cir.
2010) (concluding that "sentencing court has wide discretion to
decide whether particular evidence is sufficiently reliable to be
used at sentencing").
Having supportably set aside the last-minute attempt at
mitigation, the court went on to explain the key elements of its
sentencing determination. The court noted that the appellant had
consistently displayed a lack of cooperation with the probation
officer, highlighting attempts to reach him in which "the Probation
Officer was calling and calling and calling and still [received]
no responses." The court then noted that the appellant had failed
to meet reporting requirements, despite being "told personally
when to report and when to call." So, the court found, "the
pattern is there . . . [—] not accepting responsibility." The
court ended this portion of its assessment by concluding that "the
Probation Officer has stretched this to the extent that [she] can."
Next, the court noted that the appellant — while on
supervised release — had failed no fewer than four substance-abuse
tests. Moreover, he had racked up approximately 145 "failure to
call" violations. As to these violations, the court commented:
"[t]here's no excuse and there's no justification."
- 4 -
As a capstone, the court found that the appellant "has
not been honest towards the Probation Officer nor the supervision
process." Consequently, "[h]e has engaged in conduct that clearly
justifies the revocation." The court proceeded to revoke the
appellant's supervised release. It then determined the advisory
guideline sentencing range to be three months to nine months. See
USSG §7B1.4. Wrapping up, the court observed that the appellant's
failure to report to the drug rehabilitation
treatment, to respond in a timely fashion to
the Probation Officer, his lack of commitment
and rejection of treatment certainly denotes
that this individual is not interested in
complying with his . . . conditions of
supervision. A Grade C violation has been
established by the guidelines and accordingly
taking into consideration all [18 U.S.C. §]
3553 factors [and] the arguments of the
parties, it is the judgement of the Court that
Mr. Rivera Berrios is committed to the custody
of the Bureau of Prisons to be imprisoned for
a term of nine months to be followed by one
year of supervised release.
In this venue, the appellant does not challenge either
the revocation order or the district court's calculation of the
advisory guideline sentencing range. He challenges only the length
of the sentence imposed. That challenge fails: the district court
articulated a plausible sentencing rationale and imposed a within-
guidelines sentence that — considering the appellant's persistent
noncompliance with the conditions of his supervised release —
clearly represented a defensible result. No more was exigible.
See, e.g., United States v. Daoust, 888 F.3d 571, 578 (1st Cir.
- 5 -
2018); Márquez-García, 862 F.3d at 148; Soto-Soto, 855 F.3d at
451.
We need go no further. A thorough review of the
sentencing record reveals no sign of any impermissible taint, and
we discern no abuse of discretion in the district court's choice
of a nine-month incarcerative sentence. For the reasons elucidated
above, the challenged sentence is summarily
Affirmed. See 1st Cir. R. 27.0(c).
- 6 -