United States v. Sierra-Jimenez ( 2024 )


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  •           United States Court of Appeals
    For the First Circuit
    Nos. 21-1915
    21-1917
    UNITED STATES OF AMERICA,
    Appellee,
    v.
    JUAN DANIEL SIERRA-JIMÉNEZ,
    Defendant, Appellant.
    APPEALS FROM THE UNITED STATES DISTRICT COURT
    FOR THE DISTRICT OF PUERTO RICO
    [Hon. Raúl M. Arias-Marxuach, U.S. District Judge]
    Before
    Gelpí, Montecalvo, and Rikelman,
    Circuit Judges.
    Raúl S. Mariani Franco on brief for appellant.
    W. Stephen Muldrow, United States Attorney, Mariana E.
    Bauzá-Almonte, Assistant United States Attorney, and Julia M.
    Meconiates, Assistant United States Attorney, on brief for
    appellee.
    February 23, 2024
    GELPÍ, Circuit Judge.           Defendant Juan Sierra-Jiménez
    ("Sierra") pled guilty to being a felon in possession of a firearm,
    in violation of 
    18 U.S.C. §§ 922
    (g)(1) and 924(a)(2). The district
    court sentenced him to fifty-eight-months' imprisonment, as well
    as   to   a   consecutive   eighteen-month        sentence     for    his   related
    supervised release violations.            In this consolidated sentencing
    appeal, Sierra challenges the procedural reasonableness of his
    fifty-eight-month       sentence    and       asserts   that    the    government
    breached the plea agreement with respect to his eighteen-month
    sentence.     Having discerned no error, we affirm.
    I. BACKGROUND
    We briefly begin with a review of the relevant facts
    leading to the indictment for the new criminal conduct.                     Because
    this appeal follows a guilty plea, we draw the facts from the plea
    agreement,     the   presentence       investigation    report       ("PSR"),   the
    change-of-plea       colloquy,   and    the    sentencing    transcript.        See
    United States v. Spinks, 
    63 F.4th 95
    , 97 (1st Cir. 2023) (quoting
    United States v. Ubiles-Rosario, 
    867 F.3d 277
    , 280 n.2 (1st Cir.
    2017)).
    While on supervised released for an earlier federal
    firearm offense, Sierra failed to meet with his probation officer
    to whom he also lied about where he had been.                As a result, on or
    about March 22, 2021, the probation officer sought and obtained an
    arrest warrant.       Upon his arrest, Sierra was found with a Glock 22
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    pistol, modified to fire automatically as a machine gun.                 Agents
    found the gun loaded with thirteen rounds in a magazine and one
    round   in   the    chamber,   an    additional   loaded   twenty-two-round
    magazine containing twenty rounds, and approximately five grams of
    what appeared to be heroin.         Sierra was transported to a detention
    center for processing and admitted thereat that the gun and other
    items belonged to him.            He was     subsequentially       indicted for
    possessing a machine gun and being a felon in possession of a
    firearm.     
    18 U.S.C. §§ 922
    (g)(1), 922(o), 924(a)(2).             Sierra pled
    guilty to the latter count by way of plea agreement.
    The plea agreement proposed an advisory guideline range
    calculation consisting of a base offense level of twenty for the
    firearm    count,   see   U.S.S.G.    § 2K2.1(a)(4),   and     a    three-level
    reduction     for    acceptance      of   responsibility,      see     U.S.S.G.
    §§ 3E1.1(a)-(b), for a total offense level of seventeen, which in
    turn provides a sentencing range of thirty-seven to forty-six
    months, taking into account his criminal history.                  Both parties
    agreed to recommend a sentence at the lower end of the advisory
    guideline range.       As for the supervised release violation, the
    parties agreed to recommend a concurrent sentence.                    The plea
    agreement contained a stipulation of facts which provided that
    during his arrest, Sierra was found with a gun, modified to shoot
    automatically, loaded with thirteen rounds and an additional round
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    in the chamber, as well as a twenty-two-round magazine containing
    twenty rounds. No mention of the purported heroin seized was made.
    The Probation Office next filed a PSR with a different
    advisory guideline calculation.          Because Sierra's possession of
    the firearm in question followed two prior felonies, the base
    offense       level    was       twenty-six,            as    per        U.S.S.G.
    § 2K2.1(a)(1)(A)(ii)(B).        For his acceptance of responsibility,
    three levels were reduced.           U.S.S.G. § 3E1.1(a).           Sierra's two
    prior   convictions   and     supervision      status    yielded     a   criminal
    history category of IV, which juxtaposed with the total offense
    level, resulted in a guideline sentencing range of seventy to
    eighty-seven months.        The PSR was more detailed than the plea
    agreement's     stipulation     of    facts,        specifically    noting   the
    suspected heroin that was also found during Sierra's arrest.                  In
    his sentencing memorandum and during sentencing, Sierra objected
    to the higher guideline calculation and mention of the suspected
    heroin.
    The sentencing and revocation of supervised release
    hearings   took   place     back-to-back       on    October 18,     2021.     At
    sentencing, the district court denied Sierra's objections to the
    PSR.    The district court found encouraging Sierra's expressions
    during allocution that he strived to be a better father to his
    children and correct his life's trajectory.              However, it rejected
    the parties' joint sentence recommendation given that this was
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    Sierra's third machine gun offense.1 The district court noted that
    it   would      normally       be    inclined     to    accept    sentences     jointly
    recommended by the parties, but here could not "in good conscience"
    do so.       While it adopted the PSR's guideline calculations, the
    district court nonetheless varied downward from the applicable
    sentencing range.
    In       balancing    the   
    18 U.S.C. § 3553
    (a)   factors,     the
    district      court       discussed     Sierra's       personal   history,     his    two
    previous federal convictions for machine gun possession, and his
    role in the offense.                The district court also listed the items
    found during Sierra's arrest, which included a modified and loaded
    gun,       extra    rounds     of    ammunition,       and    about   five    grams   of
    "purported" heroin.             Ultimately, the district court sentenced
    Sierra to fifty-eight-months' imprisonment.
    After pronouncing sentence for the new criminal conduct,
    the district court proceeded to the revocation hearing.                          Sierra
    requested          an    eighteen-month         concurrent      sentence     while    the
    government made no specific recommendation.2                      The district court
    then imposed the eighteen-month sentence, however choosing that it
    run consecutively to the fifty-eight-month sentence.                       The district
    Sierra has two prior convictions for illegal possession of
    1
    a machine gun and one prior supervised release violation.
    The district court inquired whether the government would
    2
    like to make a statement, to which it responded, "No."
    - 5 -
    court supported this outcome by noting that Sierra violated the
    conditions of supervised release by engaging in new criminal
    conduct   and      failing     to       follow       the    probation     officer's
    instructions,     classified       as   Grade    A    and   Grade   C   violations,
    respectively, under U.S.S.G. § 7B1.1.                The district court further
    stated that the violations and new criminal conduct displayed
    Sierra's "total disregard" for the supervised release process.
    This timely appeal followed.
    II. DISCUSSION
    Sierra   first   argues     that   that       the   district   court's
    mention of heroin impacted the procedural reasonableness of his
    sentence in the new criminal case.               Second, he posits that the
    government breached the plea agreement by failing to recommend a
    concurrent sentence.       We address each contention seriatim.
    A. Procedural Reasonableness
    Preserved challenges to the procedural reasonableness of
    a sentence are reviewed under "a multifaceted abuse-of-discretion
    standard."     United States v. Mendoza-Maisonet, 
    962 F.3d 1
    , 20 (1st
    Cir. 2020) (quoting United States v. Arsenault, 
    833 F.3d 24
    , 28
    (1st   Cir.    2016)).       The    district     court's      interpretation    and
    application of the guidelines is reviewed de novo, its factfinding
    for clear error, and its judgment calls for abuse of discretion.
    Mendoza-Maisonet, 962 F.3d at 20.                Procedural errors include a
    sentence based on clearly erroneous facts particularly when facts
    - 6 -
    are "based solely on unreliable evidence" and cannot be established
    by   a   preponderance    of    the    evidence.     United   States    v.
    Castillo-Torres, 
    8 F.4th 68
    , 71 (1st Cir. 2021); United States v.
    Díaz-Rivera, 
    957 F.3d 20
    , 25 (1st Cir. 2020).           The clear-error
    standard     is   satisfied    where   "upon   whole-record   review,   an
    inquiring court 'form[s] a strong, unyielding belief that a mistake
    has been made.'"     Mendoza-Maisonet, 962 F.3d at 20 (alteration in
    original) (quoting United States v. Montañez-Quiñones, 
    911 F.3d 59
    , 66 (1st Cir. 2018)).
    Sierra contends that the district court committed clear
    error by finding that he possessed heroin during his arrest and
    using that finding to reach a sentence higher than that recommended
    by the parties.      This argument falls flat because the district
    court never made a factual finding that Sierra possessed heroin.
    Review of the record illustrates that, at sentencing, the suspected
    heroin was only mentioned once by the district court and that was
    merely when it listed the items that the agents found at the time
    of arrest.    Further, it was only referenced as "purported heroin,"
    demonstrating that the district court did not            find   that the
    substance was in fact heroin.
    Nor did the district court rely upon the possession of
    suspected heroin in determining Sierra's sentence for the new
    criminal conduct.      The record here explicitly provides the facts
    which the district court relied upon to justify Sierra's sentence:
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    how   the   new   criminal    conduct    had     occurred    while   he    was    on
    supervised release, his criminal history of two prior felony
    convictions for possession of a machine gun, and the instant case
    being his third machine gun conviction.                 These specific factual
    findings were stressed by the district court more than once while
    it addressed the 
    18 U.S.C. § 3553
    (a) factors, hence demonstrating
    that the same, rather than the possession of suspected heroin,
    justified the sentence imposed.
    Sierra   also     contends    that    the    suspected   heroin      was
    mentioned    by   the   district       court   specifically     while      it    was
    discussing the elements of the offense.                   The elements of the
    instant offense do not involve nor consider the possession of any
    controlled substance.          See 
    18 U.S.C. §§ 922
    (g)(1), 924(a)(2).
    Sierra, in fact, did not receive any guideline enhancement for the
    suspected heroin applied, nor any upward variance based upon said
    ground.     Therefore, the district court's mere iteration of the
    items found during arrest, especially as here where the suspected
    heroin was only mentioned once in the entirety of the hearing,
    does not even come close to clear error.                As such, the mention of
    the   suspected      heroin     does     not     render     Sierra's      sentence
    procedurally unreasonable.
    B. Breach of the Plea Agreement
    "Ordinarily, whether the government has breached its
    plea agreement with a defendant is a question of law and our review
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    is plenary."     United States v. Rivera-Ruiz, 
    43 F.4th 172
    , 179 (1st
    Cir. 2022) (quoting United States v. Rivera-Rodríguez, 
    489 F.3d 48
    , 57 (1st Cir. 2007)).       When a defendant fails to notify the
    district court of the purported breach and had knowledge to do so,
    such as here, we review for plain error.            Rivera-Ruiz, 43 F.4th at
    179    (citing   Rivera-Rodríguez,    
    489 F.3d at 57
    ).     Under   this
    standard, "we consider whether: (1) there was error, (2) it was
    plain, (3) the error affected the defendant's substantial rights,
    and (4) the error adversely impacted the fairness, integrity, or
    public reputation of judicial proceedings."            Rivera-Ruiz, 43 F.4th
    at 179 (quoting Rivera-Rodríguez, 
    489 F.3d at 57
    ).
    "[W]hen a plea rests in any significant degree on a
    promise or agreement of the prosecutor, so that it can be said to
    be part of the inducement or consideration, such promise must be
    fulfilled."      United States v. Lessard, 
    35 F.4th 37
    , 42 (1st Cir.
    2022) (alteration in original) (quoting Santobello v. New York,
    
    404 U.S. 257
    , 262 (1971)).       "In addition to entitlement to the
    government's technical compliance with the agreement, [defendants
    are] entitled to the 'benefit of the bargain' and the 'good faith'
    of the prosecutor."     United States v. Brown, 
    31 F.4th 39
    , 50 (1st
    Cir. 2022) (quoting      Ubiles-Rosario, 
    867 F.3d at 283
    ).                 "The
    critical question is whether the prosecutor's 'overall conduct
    [is]     reasonably    consistent     with     making       [the    promised]
    recommendation, rather than the reverse."            Lessard, 35 F.4th at 42
    - 9 -
    (alterations in original) (quoting United States v. Canada, 
    960 F.2d 263
    , 269 (1st Cir. 1992)).
    Sierra contends that the government breached the plea
    agreement by failing to specifically make a recommendation during
    the revocation hearing for a concurrent eighteen-month sentence as
    agreed upon.    We need not address the first and second prongs as
    we disagree with Sierra as to prejudice.    Sierra posits that had
    the government affirmatively recommended a concurrent sentence,
    then "the [district] court may have very well agreed to [the]
    modified sentence."    There is nothing in the record to suggest
    that the district court would in fact have imposed the recommended
    sentence had the government affirmatively made the recommendation.
    See United States v. Rijos-Rivera, 
    53 F.4th 704
    , 711 (1st Cir.
    2022) (citing United States v. Mulero-Vargas, 
    24 F.4th 754
    , 759
    (1st Cir. 2022)) (stating the "customary rule" that district courts
    are not bound to the sentencing recommendations made by the
    parties).      Rather, the district court was made aware of the
    parties' joint concurrency recommendation via the plea agreement,
    the PSR, and by Sierra himself during the revocation hearing.3   The
    3The court notes that, per the plea agreement, the government
    agreed to "recommend that [the revocation sentence] be served
    concurrent to the sentence imposed in" the underlying crime.
    Although we conclude that the government's failure to recommend a
    concurrent sentence did not impact the court's decision, we express
    our concern with the government's failure to fulfill this
    obligation.
    - 10 -
    district     court   ultimately       chose    to    reject          the   recommended
    concurrent     sentence     given     Sierra's      conduct          which      "clearly
    demonstrated . . . a        total      disregard         for     the       supervision
    process[,] . . . a       lack    of   interest      in    becoming         a   prosocial
    citizen[,] and his inability to live a law abiding lifestyle after
    his release from imprisonment."           Such explicit findings, combined
    with "the nature and seriousness of the breach of trust" concerning
    supervised release violations "for criminal conduct related to
    possession of a machinegun," provide more than ample support for
    the district court's grounds for imposing the consecutive sentence
    instead of a concurrent one.           Accordingly, we are unpersuaded by
    Sierra's speculation that the district court would have imposed a
    concurrent     sentence     if      the   government           had     uttered      such
    recommendation.         Therefore, Sierra has not met his burden in
    proving    that   the    government's     failure        to    orally      recommend   a
    concurrent sentence prejudiced him, and hence find that no plain
    error lies.
    III. CONCLUSION
    For the foregoing reasons, we affirm.
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Document Info

Docket Number: 21-1917

Filed Date: 2/23/2024

Precedential Status: Precedential

Modified Date: 6/12/2024