United States v. Garcia-Perez ( 2021 )

United States Court of Appeals
For the First Circuit
No. 19-2054
UNITED STATES,
Appellee,
v.
CARLOS ROBERTO GARCÍA-PÉREZ,
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,
Barron, Circuit Judge,
McAuliffe,* District Judge.
Kevin E. Lerman, 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.
Gregory B. Conner, 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.
* Of the District of New Hampshire, sitting by designation.
August 16, 2021
BARRON, Circuit Judge. Carlos Roberto García Pérez
("García") received a forty-two-month prison sentence after
entering a guilty plea to one count of machinegun possession in
violation of 18 U.S.C. §§ 922(o) and 924(a)(2). García challenges
the procedural and substantive reasonableness of that sentence.
Because we conclude that the District Court failed to offer an
adequate explanation for its upward variance from the applicable
sentencing range under the Federal Sentencing Guidelines (the
"Guidelines"), we vacate García's sentence and remand for
resentencing.
I.
García was arrested by local police officers on February
17, 2019, in Ponce, Puerto Rico. The officers had heard gunshots
while performing a patrol and had later seen García throw a firearm
and bag to the side of a nearby street. The firearm was a Glock
pistol that had been modified to fire automatically. It was loaded
with fifteen rounds of ammunition. The bag contained two
additional magazines with a combined total of fifty rounds of
ammunition.
On February 21, 2019, a federal grand jury returned an
indictment against García. The indictment charged García with one
count of possessing a machinegun in violation of 18 U.S.C.
§§ 922(o) and 924(a)(2). On May 29, 2019, García pleaded guilty
to this count without entering a plea agreement.
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At the sentencing hearing on September 19, 2019, the
District Court found that García's Base Offense Level ("BOL") was
twenty pursuant to U.S.S.G. § 2K2.1(a)(4)(B), in part because his
offense involved a machine gun and, thus, "a firearm that is
described in Title 26, United States Code section 5845" and because
García was a "prohibited person" at the time of the offense, which
the Guidelines define as including an "unlawful user of . . . any
controlled substance," see 18 U.S.C. § 922(g)(3); U.S.S.G. § 2K2.1
cmt. 3. The District Court then applied a three-level reduction
pursuant to U.S.S.G. § 3E1.1(a) and (b), resulting in a Total
Offense Level ("TOL") of seventeen. The District Court also found
that García had no prior known arrests or convictions. Based on
García's TOL and criminal history, the District Court then
calculated García's Guidelines sentencing range ("GSR") to be
twenty-four to thirty months of imprisonment.
García requested a downward-variant sentence of twelve
months. The mitigating factors to which he pointed in support
included his challenging childhood, his young age at the time of
the arrest (he was nineteen years old), his repentance and
maturation since then, his employment history, his lack of prior
arrests and convictions, and his mother's death and partner's
miscarriage during the seven months of his confinement.
The government requested thirty months -- the top of the
GSR. But, the assistant U.S. attorney ("AUSA") who represented
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the government at the hearing personally distanced himself from
this request before stating it. He explained:
I am not the undersigned AUSA on this case,
but I have read the facts, and the facts are
extremely disturbing. . . . [T]his
Defendant was caught carrying a machine gun
with 15 rounds, and a fanny pack with two
additional extended magazines, one carrying 24
rounds and another carrying 26 rounds. Your
Honor, we are talking about the second most
popular city in Puerto Rico, in the downtown
area, with restaurant[s] and bars on a
Saturday night, or a Sunday, early morning.
And the fact that Ponce is seeing increasing
violence -- I myself have another case in
downtown Ponce, that area, that we are seeing
guns and drugs in the downtown Ponce area,
where people deserve a safe community, and you
have a Defendant walking around with a gun
capable of firing automatically, with 65
rounds of ammunition, should be troubling to
the Court. Deterrence is needed. . . . If I
was assigned this case, Your Honor, I would
ask for an upward variance, but I am not. I
respect the underlying Prosecutor, and I
respect his request for 30 months. So I will
request a sentence of 30 months.
Before addressing the parties' requests, the District
Court turned first to considering "the other sentencing factors
set forth in Title 18, United States Code section 3553(a)." It
stated:
Mr. García is 20 years old. He has a ninth
grade education, was employed at an air-
conditioning company for the past two years,
and has a history of using marijuana and
Percocet pills without a prescription. He
grew up in a disfunctional family. He was
abandoned by his father, and he witnessed his
mother's drug addiction since he was a child.
He suffers from attention deficit and
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hyperactive disorder, which caused him to
struggle in school, which got worse due to
lack of guidance. Mr. García possessed a
machine gun, a dangerous and unusual weapon,
capable of killing many persons in a matter of
seconds. He also had a total of 65 rounds of
ammunition and three magazines. One of the
magazines was in the firearm and was loaded,
and the other two magazines were extended
magazines, which were also loaded.
The District Court next "f[ou]nd[] that neither sentence
requested [be it García's requested sentence of twelve months or
the government's requested sentence of thirty months] reflects the
seriousness of the offense, promotes respect for the law, protects
the public from further crimes by Mr. García, or addresses the
issues of deterrence and punishment." It then imposed a variant
sentence of forty-two months -- twelve months more than the top of
the GSR, which the government had requested.
García timely appealed.
II.
García argues on appeal that his forty-two-month
sentence is both procedurally and substantively unreasonable. We
begin with his claims of procedural error, which we review for
abuse of discretion when preserved. See Gall v. United States,
552 U.S. 38, 51 (2007). In applying the abuse of discretion
standard, we review the District Court's factual findings for clear
error and its legal conclusions de novo. See United States v.
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Díaz-Lugo, 963 F.3d 145, 151 (1st Cir. 2020); United States v.
Flores-Machicote, 706 F.3d 16, 20 (1st Cir. 2013).
A.
García's first claim of procedural error concerns the
District Court's treatment of the mitigating factors in the record.
Insofar as he means to contend that the District Court failed even
to consider the mitigating factors of his youth and prior clean
record, we find no merit to his contention even assuming that he
preserved it. For, the District Court expressly mentioned his age
and lack of prior arrests and convictions. See United States v.
Severino-Pacheco, 911 F.3d 14, 22 (1st Cir. 2018) (noting that
although "the emphasis on his personal circumstances was not as
apparent as [the defendant] would have preferred, 'brevity is not
to be confused with inattention'" (quoting United States v.
Santiago-Rivera, 744 F.3d 229, 233 (1st Cir. 2014))).
Insofar as García means to contend instead that the
District Court failed to give adequate weight to those mitigating
factors, he preserved that contention below, but it is not clear
that it is a claim of procedural error at all. See United States
v. Caballero-Vázquez, 896 F.3d 115, 120 n.1 (1st Cir. 2018). Even
assuming that it is, however, we find no error. For, as we have
explained, "the weighing of [§ 3553(a)] factors is largely within
the court's informed discretion." United States v. Clogston, 662
F.3d 588, 593 (1st Cir. 2011); see also United States v. Pantojas-
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Cruz, 800 F.3d 54, 59 (1st Cir. 2015). And "that the sentencing
court chose not to attach to certain of the mitigating factors the
significance that the appellant thinks they deserved does not make
the sentence unreasonable." Clogston, 662 F.3d at 593.
B.
García's second claim of procedural error concerns the
District Court's explanation of its chosen sentence. That
explanation, he contends, was inadequate because it did not provide
case-specific reasons for a variance of such magnitude.1
The government contends that García did not make this
argument during the sentencing hearing and that our review is only
for plain error. But, below García both "object[ed] . . . to the
sentence for being procedurally unreasonable" and supplied more
specific reasons for objecting -- among them, "that the Court gave
little weight to mitigating factors" and "that the Court gave
excessive weight to aggravating factors." No more was needed "to
1 Under our precedents, this argument "can be characterized
as either a [claim of] procedural error or a challenge to the
substantive reasonableness of the sentence." United States v.
Crespo–Ríos, 787 F.3d 34, 37 n.3 (1st Cir. 2015); see also United
States v. Madera–Ortiz, 637 F.3d 26, 30 (1st Cir. 2011)
(characterizing a similar argument as substantive). Because
either characterization is possible, we adopt García's procedural
framing of his claim. See United States v. García-Mojica, 955
F.3d 187, 191-92 (1st Cir. 2020) (characterizing a district court's
"fail[ure] to adequately explain the chosen sentence -- including
an explanation for any deviation from the Guidelines range" as a
procedural error (quoting United States v. Gierbolini-Rivera, 900
F.3d 7, 11–12 (1st Cir. 2018))).
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call the district court's attention to the asserted error." United
States v. Soto-Soto, 855 F.3d 445, 448 n.1 (1st Cir. 2017); see
also United States v. Rivera-Berríos, 968 F.3d 130, 134 (1st Cir.
2020) ("To preserve a claim of procedural sentencing error for
appellate review, a defendant's objection need not be framed with
exquisite precision."). We therefore review for abuse of
discretion. See Gall, 552 U.S. at 51.
The Supreme Court of the United States has made clear
that a district court "must adequately explain the chosen sentence
to allow for meaningful appellate review and to promote the
perception of fair sentencing." Gall, 552 U.S. at 50. In doing
so, moreover, the district court "must consider the extent of the
deviation and ensure that the justification is sufficiently
compelling to support the degree of the variance." Id.; see also
United States v. Ofray-Campos, 534 F.3d 1, 43 (1st Cir. 2008) ("The
farther the judge's sentence departs from the guidelines
sentence . . . the more compelling the justification based on
factors in section 3553(a) that the judge must offer in order to
enable the court of appeals to assess the reasonableness of the
sentence imposed." (quoting United States v. Dean, 414 F.3d 725,
729 (7th Cir. 2005) (Posner, J.) (omission in original))).
Here, the District Court imposed an upward variance of
twelve months from the applicable GSR of up to thirty months. And
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yet, in analyzing the § 3553(a) factors, the District Court did
not adequately explain its basis for a variance of that length.
The District Court did express special concern about
García's "possess[ion of] a machine gun," which it called a
"dangerous and unusual weapon, capable of killing many persons in
a matter of seconds." But, "[w]hen a § 3553(a) consideration is
already accounted for in the guideline range, a sentencing Court
'must articulate specifically the reasons that this particular
defendant's situation is different from the ordinary situation
covered by the guidelines calculation.'" United States v. Rivera-
Santiago, 919 F.3d 82, 85 (1st Cir. 2019) (quoting United States
v. Guzman-Fernandez, 824 F.3d 173, 177 (1st Cir. 2016)). Thus,
the District Court's reliance on García's possession of a
machinegun cannot suffice as an adequate explanation for its
variance. After all, García's BOL had been calculated pursuant to
U.S.S.G. § 2K2.1(a)(4)(B) based in part on the finding that he
possessed a machinegun, and, as we have made clear, the concerns
that the District Court highlighted about the dangers posed by
machineguns "are universal in their application, and we have no
reason to believe that they were not factored into the mix when
the Sentencing Commission set the base offense level for the
offense of conviction." Rivera-Berríos, 968 F.3d at 136. The
District Court here, just like the district court in Rivera-
Berríos, cited concerns that machineguns are "highly dangerous and
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unusual," can fire over a thousand rounds per minute, and exist
largely "on the black market" as explanations for a variance. Both
courts failed to explain why the defendant's machinegun possession
"was entitled to extra weight."2 Id.
The government nonetheless contends that this case
differs from Rivera-Berríos. It points here to the fact that the
District Court also noted that García "had a total of 65 rounds of
ammunition and three magazines" and that "[o]ne of the magazines
was in the firearm and was loaded, and the other two magazines
were extended magazines, which were also loaded." The reference
to these findings, the government contends, suffices to explain
why the District Court concluded that García's conduct fell outside
of the heartland of the GSR.
At the time at which the District Court imposed its
sentence here, however, our decision in Rivera-Berríos had not yet
been issued. But, now that it has been, a concern is that in that
case, too, the defendant possessed more than just a machinegun,
yet we concluded that the defendant's two magazines and thirty-
2 The District Court did also consider García's "history of
using marijuana and Percocet pills without a prescription." But,
insofar as the District Court viewed this personal characteristic
as an aggravating factor, it had already taken account of that
factor when it calculated García's BOL pursuant to U.S.S.G.
§ 2K2.1(a)(4)(B) based in part on finding that he was "a prohibited
person at the time of the offense." And, the District Court
nowhere explained why that finding was nevertheless entitled to
extra weight.
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seven rounds were "entirely consistent with simple possession of
a machine gun." Id. at 135.
To be sure, García had one more magazine and twenty-
eight more rounds than the defendant in Rivera-Berríos. But,
defendants are entitled to a "sufficiently particularized [and]
compelling" explanation when they are subject to a significant
upward variance. Ofray-Campos, 534 F.3d at 43. And we therefore
conclude that the prudent course is to vacate and remand for the
District Court to consider this sentence in light of our holding
in Rivera-Berríos. The difference in the facts of the two cases
is not so great that we can be confident that the District Court,
knowing of our conclusion in Rivera-Berríos would have deemed
García's ammunition a reason to vary as it did. The overall
purpose of the federal sentencing regime to "bring about greater
fairness in sentencing through increased uniformity" accords with
this conclusion. Rita v. United States, 551 U.S. 338, 354 (2007).
The government does not develop any argument here --
such as it references in United States v. Carrasquillo-Sanchez,
No. 19-2151 (1st Cir. August 16, 2021) -- for affirming the
sentence on grounds of general deterrence based on community-based
factors that would seemingly apply to any person convicted of
machinegun possession in Puerto Rico. Nor did the District Court
attempt to justify its sentence in a rigorous manner on such a
basis. Nonetheless, the government argues that we should affirm
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the sentence based on facts elsewhere in the record on which the
District Court's explanation may be understood impliedly to rest
and which, the government contends, provide additional context for
us to conclude that its explanation was adequate.
Those facts include the ones cited by the substituting
AUSA prior to the District Court's imposition of the variant
sentence, namely that García carried the machinegun in a crowded
downtown area in Ponce at nighttime and that Ponce was "seeing
increasing violence." And the government also points to facts
referenced by the Presentencing Report ("PSR"), namely García's
admission that "he was with the wrong acquaintances for protection
since he was being sought out by consensual partners of several
women with whom he had affairs" and that on the night of his arrest
he "had an argument with" one such "guy." According to the
government, those circumstances all "contribute[] to the
impression that [García's] offense was dangerous."
But, while "a court's reasoning can often be inferred by
comparing what was argued by the parties or contained in the pre-
sentence report with what the judge did," such inferences must be
anchored in "what the judge did." United States v. Jiménez–Beltre,
440 F.3d 514, 519 (1st Cir. 2006) (en banc), abrogated on other
grounds by Rita, 551 U.S. 338. And here, nothing in the District
Court's summary of the facts and weighing of the sentencing factors
indicates that it relied for its variant sentence on the
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circumstances mentioned by the substituting AUSA or the PSR. Nor
did the government argue below to the District Court that any of
these facts warranted a variant sentence. Indeed, as we have
noted, the substituting AUSA expressly recommended that no
variance be made.
Thus, given our decision in Rivera-Berríos, which
rejected the contention that the additional magazine and
ammunition there sufficed to support a significant variance, and
given the District Court's exclusive reference to the magazines
and ammunition as the only aggravating factors supporting the
variance aside from the machinegun (which could not itself support
such a variance), we leave it to the District Court to consider
the appropriate sentence in light of these considerations. We do
note, however, that, given our reasons for vacating and remanding,
we do not mean to suggest that the District Court is free to vary
upwards even further, as nothing in Rivera-Berríos itself -- which
is our reason for remanding -- provides any basis for doing so.
C.
Although we are remanding for the reasons just
explained, we also must address García's claim of substantive
error. For, here, García takes aim not at the quality of the
explanation for the variance that resulted in a prison sentence of
forty-two months, but at the substantive validity of a sentence of
this length.
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García first argues that the length of his sentence is
excessive compared to the sentences of similarly situated
defendants. In support, he lists eighteen cases in which
defendants were sentenced to shorter prison terms for violating 18
U.S.C. § 922(o) in Puerto Rico.
The government contends that García failed to preserve
this argument below. But, we need not address this contention,
because, even assuming that García preserved his disparity
argument, we find no abuse of discretion.
We have held that "[a] credible claim of sentencing
disparity requires that the proponent furnish the court with enough
relevant information to permit a determination that he and his
proposed comparators are similarly situated." United States v.
Rodríguez-Adorno, 852 F.3d 168, 177 (1st Cir. 2017). García fails
to furnish us with such information in this case. He does not
establish that these cases are comparable to his own, but instead
merely lists their outcomes. We thus reject García's disparity
claim. See id. (rejecting disparity claim where defendant's "brief
contains a barebones list of the various coconspirators and their
sentences").
García also argues that the length of his sentence is
substantively unreasonable because the machinegun he had -- an
altered handgun -- falls squarely into the heartland of his GSR.
But, as we have explained, a variance of this length could not
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have been predicated on the possession of the machinegun alone.
Thus, we do not see how the fact that the machinegun was no more
than standard issue on García's account supports the conclusion
that a variance based on other considerations would be
unreasonable.
III.
Because we conclude that the District Court committed
procedural error when it failed to offer an adequate explanation
for its upward variance, we order García's sentence to be vacated
and remand for resentencing.
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