United States v. Alejandro-Rosado , 878 F.3d 435 ( 2017 )

United States Court of Appeals
For the First Circuit
No. 16-2222
UNITED STATES OF AMERICA,
Appellee,
v.
LUIS ALEJANDRO-ROSADO,
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.
Edgar L. Sanchez-Mercado and ESM Law Office on brief for
appellant.
B. Kathryn Debrason, Assistant United States Attorney, Rosa
Emilia Rodríguez-Vélez, United States Attorney, and Mariana E.
Bauzá-Almonte, Assistant United States Attorney, Chief, Appellate
Division, on brief for appellee.
December 23, 2017
THOMPSON, Circuit Judge. This appeal bores out of a
district court's imposition of a twenty-four month sentence (the
statutory maximum) on Luis Alejandro-Rosado for violating his
terms of supervised release. At the revocation hearing, Alejandro-
Rosado admitted to the multiple violations the government accused
him of committing and asked that the court sentence him within the
Guideline Sentencing Range (of four to ten months). After hearing
lengthy arguments pertaining to both Alejandro-Rosado's violations
as well as the purported mitigating factors presented, the court
nonetheless decided the proper sentence was the statutory maximum.
Alejandro-Rosado now appeals this sentence as unreasonable.
Having reviewed the record, case law, and arguments, we find that
the district court exercised reasonable sentencing procedure and
arrived at a substantively reasonable result. We therefore affirm.
A. Getting Our Factual Bearings
Alejandro-Rosado was originally convicted of receiving
a firearm as a person under indictment in violation of 18 U.S.C.
§§ 922(n), 924(a)(1)(D), a class D felony. He was sentenced to
thirty-six months' imprisonment and three years of supervised
release. His incarceration ended on January 15, 2015, and he
immediately began serving his term of supervised release. On June
22, 2016, and July 7, 2016, the United States Probation Office
filed motions notifying the district court of nine separate
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violations of Alejandro-Rosado's supervised release terms that had
occurred between July 2015 and June 2016.
The violations were as follows. In July 2015, Alejandro-
Rosado failed his first drug test. He again failed drug tests on
August 14, 2015, August 21, 2015, and November 30, 2015. On May
5, 2016, Alejandro-Rosado was observed handling a firearm and
changing the magazine. That same day he was witnessed selling
cocaine. On May 18, 2016, Alejandro-Rosado was arrested for being
in possession of synthetic marijuana and prescription pain pills
(and provided an admission to being the owner of the contraband).
Moreover, canines twice alerted officers to weapons in his
apartment. A June 28, 2016, search of his apartment by a probation
officer found more drugs and a notebook that contained the names
of various inmates, their register numbers, and numerical
quantities of money.1 Next to one entry read: "transaction as soon
as possible so that he not be beheaded." Alejandro-Rosado does
not dispute committing the violations.
On September 14, 2016, the district court conducted a
revocation hearing to determine Alejandro-Rosado's sentence. The
government asked that the defendant be sentenced to the statutory
maximum of twenty-four months. Though Alejandro-Rosado admitted
to committing violations, he asked that the court, in consideration
1 As an example, these notebook entries had the following
format: "Antonio Hernandez-Vilar, 97440-020 $100."
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of mitigating factors, impose a sentence of four to ten months
pursuant to the sentencing guidelines.2 Among the factors
Alejandro-Rosado raised were his poor physical health,
psychological well-being, misunderstanding of release terms, and
full acceptance of responsibility for his violations. Though the
district court acknowledged that the guidelines recommended a four
to ten month sentence, it reasoned that the twenty-four month
sentence was nonetheless sufficient but not greater than necessary
to comply with 18 U.S.C. § 3553(a). In deviating from the
guidelines, the court explained that a higher sentence was
necessary in order to "(1) reflect the seriousness of the
violations, (2) promote respect for law, (3) provide just
punishment for the offenses, (4) afford adequate deterrence, and
(5) protect the public from future crimes" by Alejandro-Rosado.
Alejandro-Rosado concedes that the district court had discretion
to impose this sentence, but now appeals it as unreasonable.
B. Analysis
1. Procedural Reasonableness
Alejandro-Rosado first challenges the procedural
reasonableness of his sentence. While we generally review a
2Under U.S.S.G. § 7B1.1(a), the violations committed by
Alejandro-Rosado were determined to be grade B violations because
he was in possession of a firearm. Based on a criminal history
category of I, the sentencing range for grade B violations is four
to ten months. U.S.S.G. § 7B1.4(a).
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sentence following revocation of supervised release for abuse of
discretion, see United States v. Butler-Acevedo, 656 F.3d 97, 99
(1st Cir. 2011), Alejandro-Rosado did not object to the procedural
reasonableness of his sentence below and it is therefore
unpreserved. We review an unpreserved procedural challenge for
plain error, a steep climb for defendants on appeal. See United
States v. Soto-Soto, 855 F.3d 445, 448 (1st Cir. 2017); United
States v. Rodríguez-Meléndez, 828 F.3d 35, 38 (1st Cir. 2016). To
prevail under plain error review, a defendant must show "(1) that
an error occurred (2) which was clear and obvious and which not
only (3) affected his or her substantial rights, but also (4)
seriously impaired the fairness, integrity, or public reputation
of judicial proceedings." Rodríguez-Meléndez, 828 F.3d at 38
(quoting United States v. Roy, 506 F.3d 28, 30 (1st Cir. 2007)).
Under Gall v. United States, 552 U.S. 38, 49-50 (2007),
the Supreme Court outlined the procedural framework that district
courts should use in determining a sentence. In particular, it
explained that (1) the court must calculate the applicable
guidelines sentencing range, (2) it must allow both sides to argue
for the sentence they feel is appropriate, and (3) it must then
consider the relevant § 3553(a) factors before imposing its
ultimate sentence. Id. Here, Alejandro-Rosado contends that the
district court procedurally erred when (1) it failed to consider
certain mitigating factors and (2) it varied beyond the recommended
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range. The government disagrees, arguing that the district court
specifically addressed the mitigating factors and adequately
justified the upward variance. We agree with the government on
both of these procedural challenges.
Alejandro-Rosado's contention that the court did not
adequately consider mitigating factors does not hold water.
Indeed, while the district court must consider all § 3553(a)
factors, it need not do so in "some sort of rote incantation when
explicating its sentencing decision." United States v. Dixon, 449
F.3d 194, 205 (1st Cir. 2006). A defendant is entitled to raise
mitigating factors but "[m]erely raising potentially mitigating
factors does not guarantee a lesser sentence." United States v.
Dávila-González, 595 F.3d 42, 49 (1st Cir. 2010). Here, the
district court heard vigorous arguments on Alejandro-Rosado's
mitigating factors. The court acknowledged these arguments and
then stated the § 3553(a) factors it considered before ruling.
This procedure evidences adequate consideration of the factors.
See United States v. Ruiz-Huertas, 792 F.3d 223, 227 (1st Cir.
2015) (finding no plain error when counsel vigorously argued the
mitigating factors and the district court acknowledged the
arguments); see also United States v. Clogston, 662 F.3d 588, 592
(1st Cir. 2011) (explicit statements that the court considers
certain factors are "entitled to some weight"). Though the
district court's consideration was unfavorable to the defendant,
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the fact that it weighed some factors more heavily than others
does not amount to procedural error. See United States v. Vargas-
García, 794 F.3d 162, 167 (1st Cir. 2015) ("While the defendant
points to some mitigating considerations, a sentencing court is
entitled to conduct an appropriate triage and weigh some factors
more heavily than others.").
Alejandro-Rosado's second procedural challenge is also
easily put to rest. Alejandro-Rosado submits that the court erred
when it upwardly varied from the guideline standard, but this
argument misconceives the court's obligation. While upward
variants should be justified, all that's required is that the
district court offer a "plausible and coherent rationale" for its
variance. United States v. Guzman-Fernandez, 824 F.3d 173, 178
(1st Cir. 2016) (quoting United States v. Del Valle–Rodríguez, 761
F.3d 171, 177 (1st Cir. 2014)). Moreover, under plain error
review, the district court need only "touch[] upon each of factors
that it supportably found significant." United States v. Márquez-
García, 862 F.3d 143, 147 (1st Cir. 2017). Here, the district
court articulated a plausible and coherent rationale for its
determination when it listed each violation, emphasized the
severity of each, and observed that Alejandro-Rosado is "unable to
comply with the law or the conditions" of release. Though not
long winded, we do not require an exhaustive justification, and
thus the district court's articulation of its reasoning was
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procedurally reasonable. See id. (finding even an "admittedly
terse" justification sufficient under plain error review).
2. Substantive Reasonableness
Alejandro-Rosado also seems to argue that the district
court's sentence was substantively unreasonable. The government,
again, disagrees and argues that the sentence was plausibly
reasoned and resulted in a defensible outcome. We agree with the
government.
The standard of review for substantive reasonableness is
"somewhat blurred" when it comes to unpreserved challenges to the
substantive reasonableness of a federal sentence. See Ruiz-
Huertas, 792 F.3d at 228. As we have done numerous times before,
we "skirt this murky area" and assume, favorably for Alejandro-
Rosado, that the standard of review is abuse of discretion.
Márquez-García, 862 F.3d at 147; see also Ruiz-Huertas, 792 F.3d
at 228 (making similar assumption). As both parties concede, the
inquiry for substantive reasonableness is whether the sentencing
rationale is plausibly reasoned and resulted in a defensible
outcome. See United States v. Martin, 520 F.3d 87, 96 (1st Cir.
2008). Because "in most cases there is not a single appropriate
sentence, but rather a universe of reasonable sentences," United
States v. Rivera-González, 776 F.3d 45, 52 (1st Cir. 2015),
sentencing often becomes "a judgment call." Martin, 520 F.3d at
92. We will reverse only where the sentence is either outside the
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"universe of reasonable sentences" or was implausibly reasoned.
Rivera-González, 776 F.3d at 52. We turn first to the inquiry of
whether the sentence was within the universe of reasonableness.
We need not go far to determine that it was because one
of our recent decisions is directly on point. In United States v.
Márquez-Garcia, a twenty-four month sentence was determined
reasonable on a four to ten month guideline recommendation (the
same upward variant as we have before us). 862 F.3d at 147-48.
The court reasoned that because the severe violations occurred
less than a year after the release date, the sentence was
substantively reasonable for deterrence purposes. Id. Similarly
here, not only did the violations follow quickly on the heels of
Alejandro-Rosado's release, but they were numerous and severe. He
was found racking a pistol. Canines twice alerted police to
weapons in his apartment. He was reported to be selling drugs,
and was found with a notebook full of inmate names, register
numbers, and dollar amounts. Specifically, one entry had the
rather ominous notation: "transaction soon as possible so that he
not be beheaded." And these are just some of his numerous
violations. In light of these facts, Alejandro-Rosado's sentence
was clearly within the universe of reasonableness. See Soto-Soto,
855 F.3d at 450-51 (statutory maximum of two years was
substantively reasonable where the guideline recommended a five to
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eleven month sentence but the violations were repetitive and
severe).
Alejandro-Rosado nevertheless argues that the guidelines
recommended a sentence of four to ten months and the district court
improperly exceeded this recommendation. But these guidelines are
"merely advisory." See Soto-Soto, 855 F.3d at 451. Regardless of
whether we agree that this was the appropriate sentence, merely
deciding on appellate review that "some lesser sentence [is]
appropriate is not, in itself, a sufficient reason to disturb the
district court's exercise of discretion." Del Valle-Rodríquez,
761 F.3d at 177 (1st Cir. 2014).
Turning next to the inquiry reviewing the district
court's rationale, we determine that it was plausibly reasoned.
Where district courts stress the factors that lead to its sentence
and explain the purposes for the sentence, we have upheld its
reasoning. See, e.g., Rivera-González, 776 F.3d at 52 (district
court's sentence was plausibly reasoned because it stressed the
seriousness of the crime and need for the sentence). Here, the
district court did both. It highlighted the frequency of
Alejandro-Rosado's violations, the severity of them, and his
refusal to follow the probation officer's instructions. See United
States v. O'Brien, 870 F.3d 11, 21 (1st Cir. 2017) (reasoning was
clear when it emphasized the severity of the conduct). Next, it
plausibly explained that in light of these factors, the sentence
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was necessary to "provide just punishment for the offense, afford
adequate deterrence, and to protect the public from further crimes"
by the defendant. In light of these justifications, we find that
the district court's reasoning was entirely plausible.
C. Conclusion
For the reasons made clear above, we uphold the sentence
imposed on Alejandro-Rosado for violation of his terms of
supervised release.
Affirmed.
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