United States v. Diaz-Arroyo

United States Court of Appeals
For the First Circuit
No. 14-1929
UNITED STATES OF AMERICA,
Appellee,
v.
HAINZE ELÍAS DÍAZ-ARROYO,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Francisco A. Besosa, U.S. District Judge]
Before
Torruella, Selya and Dyk,*
Circuit Judges.
Steven A. Feldman and Feldman and Feldman on brief for
appellant.
Rosa Emilia Rodríguez-Vélez, United States Attorney, Nelson
Pérez-Sosa, Assistant United States Attorney, Chief, Appellate
Division, and Carmen M. Márquez-Marín, Assistant United States
Attorney, on brief for appellee.
August 12, 2015
* Of the Federal Circuit, sitting by designation.
SELYA, Circuit Judge. In this sentencing appeal,
defendant-appellant Hainze Elías Díaz-Arroyo complains that his
48-month sentence is substantively unreasonable and that a
condition of supervised release fails to make clear that he is not
prohibited from using the internet. After careful consideration,
we affirm the sentence itself but remand for the limited purpose
of correcting the judgment to clarify the challenged supervised
release condition.
I.
BACKGROUND
As this appeal follows a guilty plea, we draw the facts
from the plea agreement, the change-of-plea colloquy, the
presentence investigation report (PSI Report), and the transcript
of the disposition hearing. See United States v. Rivera-González,
776 F.3d 45, 47 (1st Cir. 2015); United States v. Dávila-González,
595 F.3d 42, 45 (1st Cir. 2010). In January of 2014, a Puerto
Rico police officer spied the defendant pulling a firearm from his
waistband in the vicinity of a public housing project. The
defendant attempted to flee on foot (losing a black wig in the
process) but was eventually apprehended. He admitted that he had
been wearing the wig to disguise himself as he knew there was an
outstanding arrest warrant against him on homicide charges. During
a search incident to his arrest, the police found a container of
marijuana, a stolen 40-caliber Glock pistol loaded with 13 rounds
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of ammunition, and a magazine loaded with 12 rounds of 40-caliber
ammunition.
In due course, a federal grand jury sitting in the
District of Puerto Rico returned an indictment charging the
defendant with being a felon in possession of a firearm. See 18
U.S.C. §§ 922(g)(1), 924(a)(2). This charge carries a maximum
prison sentence of 10 years. See id. § 924(a)(2).
After some preliminary skirmishing (not relevant here),
the defendant entered into a non-binding plea agreement with the
government (the Agreement). See Fed. R. Crim. P. 11(c)(1)(B). In
the Agreement, the defendant agreed to request a sentence no lower
than the bottom of the applicable guideline sentencing range (GSR)
while the government agreed to recommend a sentence no higher than
the top of the range. Withal, the Agreement reached no consensus
about the defendant's criminal history category (CHC), although it
did forecast a possible GSR based on a CHC of II.
After the district court accepted the defendant's guilty
plea, it directed the preparation of the PSI Report. The PSI
Report adumbrated a series of guideline calculations. Starting
with a base offense level of 14, see USSG §2K2.1(a)(6), it
suggested a two-level upward adjustment because the firearm was
stolen, see id. §2K2.1(b)(4)(A), and a three-level downward
adjustment for timely acceptance of responsibility, see id.
§3E1.1(a), (b), yielding a total offense level of 13. The PSI
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Report then proposed a CHC of II because the defendant had
previously been convicted of three counts of possession of a
firearm without a license, and he was on probation for those crimes
when he committed the instant offense. Cumulatively, these
computations produced a recommended GSR of 15 to 21 months.
The PSI Report went on to note that the defendant's
criminal past included two separate incidents for which he was not
convicted (and, thus, for which no criminal history points were
assessed). In 2012, he was arrested for possessing false documents
and pointing a firearm at a law enforcement officer. These charges
were eventually dismissed due to a reported lack of probable cause.
In 2014, the defendant was again arrested; this time he was charged
with causing the death of two men and attempting to murder a third
with a firearm. These charges were also dismissed, but the PSI
Report was silent as to the reason for the dismissal.
At the disposition hearing, the district court — without
objection — adopted the guideline calculations limned in the PSI
Report. Defense counsel requested a bottom-of-the-range sentence
(15 months). The prosecutor recommended a top-of-the-range
sentence (21 months). As part of her statement to the court, the
prosecutor explained that the 2014 murder and attempted murder
charges were dropped only after the sole surviving witness to the
incident (a minor who was able positively to identify the defendant
as the shooter) was threatened and fled the jurisdiction. Defense
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counsel did not strongly deny the prosecutor's account, stating
that the defendant maintained his innocence with respect to those
charges, and adding, ambiguously, that the defendant had "no
relation to that." Defense counsel went on to say that she
understood that the charges had been dropped because the witness
had been in witness protection and did not appear to testify.
The district court noted that it had considered all of
the factors enumerated in 18 U.S.C. § 3553(a). It specifically
acknowledged the Agreement, the defendant's criminal history
(including the dismissed charges), his age, his family and
employment status, his history of drug abuse, and the circumstances
surrounding the offense of conviction. The court then mentioned
the high incidence of violent crime in Puerto Rico1 and decried
the fact that "[t]oo many young men on this island are carrying
dangerous weapons without the proper training to use them and
without the finances to purchase them." Stressing, inter alia,
the defendant's prior weapons convictions and the dropped
murder/attempted murder charges, the court concluded that an
upwardly variant sentence was necessary to "reflect[] the
seriousness of the offense, promote[] respect for the law, [and]
protect[] the public from further crimes by [the defendant]." The
court then sentenced the defendant to serve 48 months in prison
1Among other things, the court observed that the crime rate
in Puerto Rico "is about quadruple the national rate."
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(consecutive to any sentence imposed in the then-pending
Commonwealth probation revocation proceedings), followed by a
three-year term of supervised release. No objections were made
either to the sentence or to the supervised release conditions.
In setting forth the conditions of supervised release,
the court required the defendant, inter alia, to comply with
electronic monitoring strictures. In so doing, the court stated:
"[i]n addition to any telephone or cell phone that he may have,
[the defendant] shall maintain a telephone at his residence without
a modem, an answering machine or a cordless feature during the
term of electronic monitoring."
This timely appeal ensued.
II.
ANALYSIS
On appeal, the defendant raises three issues. We discuss
those issues sequentially.
A.
To begin, the defendant argues that the waiver-of-appeal
clause contained in the Agreement does not pretermit his appeal.
That argument, however, sets up a straw man.
In so many words, the waiver-of-appeal clause hinges the
defendant's waiver on the subsequent imposition of a sentence "in
accordance with the terms and conditions set forth in the Sentence
Recommendation provisions of [the Agreement]." Because the
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sentence imposed by the district court was beyond the bounds of
the Agreement's Sentence Recommendation provisions, the waiver-
of-appeal clause does not apply. See, e.g., Rivera-González, 776
F.3d at 49. And the government, to its credit, has conceded the
point all along.
B.
The centerpiece of this appeal is the defendant's
contention that the sentence imposed by the district court is
substantively unreasonable. Since the defendant did not object
below, the standard of review is open to question. We have
recently explained that most courts have held that an objection in
the district court is not necessary to preserve a claim that the
length of a sentence is substantively unreasonable. See United
States v. Vargas-García, ___ F.3d ___, ___ (1st Cir. 2015) [No.
14-1335, slip op. at 8]; United States v. Ruiz-Huertas, ___ F.3d
___, ___ (1st Cir. 2015) [No. 14-1038, slip op. at 10].
Nevertheless, "a pair of First Circuit cases have expressed a
contrary view (albeit without any analysis of the issue)." Vargas-
García, ___ F.3d at ___ [slip op. at 8] (citing Ruiz-Huertas, ___
F.3d at ___ n.4 [slip op. at 10 n.4]). Here, though, we can follow
the same path that we took in both Vargas-García and Ruiz-Huertas
and leave the issue for another day. Thus, we assume, favorably
to the defendant, that the abuse of discretion rubric applies.
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In appraising the substantive reasonableness of a
sentence, we first ask whether the district court has offered a
plausible rationale for the sentence and then ask whether the
sentence embodies a defensible result. See United States v.
Flores-Machicote, 706 F.3d 16, 25 (1st Cir. 2013); United States
v. Martin, 520 F.3d 87, 96 (1st Cir. 2008). Variant sentences are
subject to this two-part inquiry. See United States v. Santiago-
Rivera, 744 F.3d 229, 234 (1st Cir. 2014). Throughout, we remain
mindful that where (as here) a properly calculated GSR is in place,
"sentencing becomes a judgment call, and a variant sentence may be
constructed based on a complex of factors whose interplay and
precise weight cannot even be precisely described." Martin, 520
F.3d at 92 (internal quotation marks omitted).
In the case at hand, the defendant contests both parts
of the two-part inquiry. He begins by denigrating the district
court's rationale because (in his view) the court premised its
sentencing determination on two factors "beyond his control,"
namely, the crime rate in Puerto Rico and the charges against him
that were later dismissed. Although the defendant concedes that
each of these factors is a permissible consideration at sentencing,
he submits that the court below erred in relying on them in
combination.
We discern no abuse of the sentencing court's broad
discretion. As we repeatedly have explained, "[d]eterrence is
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widely recognized as an important factor in the sentencing
calculus." Flores-Machicote, 706 F.3d at 23; accord United States
v. Romero-Galindez, 782 F.3d 63, 73 (1st Cir. 2015). To this end,
a sentencing court may consider the pervasiveness of similar crimes
in the community in formulating its sentence. See, e.g., United
States v. Narváez-Soto, 773 F.3d 282, 286 (1st Cir. 2014); United
States v. Politano, 522 F.3d 69, 74 (1st Cir. 2008). So, too, the
fact that a defendant's CHC substantially underrepresents the
gravity of his prior criminal history because of previously
dismissed charges may shed light upon the need for specific
deterrence. See, e.g., Flores-Machicote, 706 F.3d at 21
(explaining that "[a] record of past arrests or dismissed charges
may indicate a pattern of unlawful behavior even in the absence of
any convictions" (internal quotation marks omitted)); United
States v. Lozada-Aponte, 689 F.3d 791, 792 (1st Cir. 2012)
(similar); United States v. Gallardo-Ortiz, 666 F.3d 808, 814-15
(1st Cir. 2012) (similar); cf. USSG §4A1.3(a)(2)(E) (authorizing
upward departures based on reliable information that defendant
committed "[p]rior similar adult criminal conduct not resulting in
a criminal conviction"). We know of no reason why these two
sentencing considerations, each of which is proper, cannot be used
synergistically in fashioning a sentencing rationale.
We add, moreover, that the district court's sentencing
rationale was altogether plausible. The court gave several reasons
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for imposing a sentence above the GSR, including the need for
deterrence in view of the defendant's demonstrated proclivity for
committing firearms offenses (as shown in part by his many prior
weapons-related brushes with the law).2 The court then voiced its
concern that no sentence within the GSR would appropriately
"address the issues of deterrence and punishment." Given the
amalgam of convicted and dismissed firearms-related charges
reflected in the record — which show "a pattern of unlawful
behavior even in the absence of [corresponding] convictions,"
Lozada-Aponte, 689 F.3d at 792 (quoting United States v. Zapete-
Garcia, 447 F.3d 57, 61 (1st Cir. 2006)) — we find no lack of
plausibility in the district court's sentencing rationale.3
2 In this regard, the court emphasized the need for the
sentence imposed both to deter the defendant and to serve the
purpose of general deterrence in the population at large.
3 We note that the sentencing court was entitled to take into
account the prosecutor's representations at the disposition
hearing regarding the circumstances surrounding the 2014
murder/attempted murder charges to shed light on the reason for
the dismissal of those charges. The prosecutor stated that the
victim of the attempted murder (who was the sole eyewitness) fled
the jurisdiction because he "was threatened." Defense counsel did
not directly challenge the prosecutor's account of the
circumstances surrounding the dismissal of the charges. At
sentencing, a court is not bound by the rules of evidence but,
rather, may take into account any information that has sufficient
indicia of reliability. See United States v. Tardiff, 969 F.2d
1283, 1287 (1st Cir. 1992); USSG §6A1.3(a). For sentencing
purposes, a prosecutor's statement, not adequately challenged by
defense counsel who has a full opportunity to respond, may
constitute reliable information.
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Nor do we find that the sentence embodies an indefensible
result. We recognize, of course, that the district court's duty
is to impose a sentence that is "sufficient, but not greater than
necessary" to accomplish the manifold goals of sentencing. 18
U.S.C. § 3553(a). Still, "[i]n most cases, there is not a single
appropriate sentence but, rather, a universe of reasonable
sentences." Rivera-González, 776 F.3d at 52. We conclude that
the upwardly variant sentence here falls near the outer margin of,
but within, that universe.
To be sure, the sentence is severe — but not unreasonably
so. The offense of conviction was serious; it involved a stolen
firearm; and it was aggravated both by the defendant's possession
of an additional (loaded) magazine and by his flight. Moreover,
the defendant committed the offense while on probation for an
earlier weapons charge. When the facts of this case are viewed
against the backdrop of the defendant's checkered criminal history
and the community's burgeoning problems with violent crime linked
to the illegal possession and use of firearms, we cannot say that
the sentence was outside the wide universe of permissible
sentences.
C.
The district court imposed, inter alia, a special
condition of supervised release designed to ensure the efficacy of
electronic monitoring: it required that the defendant maintain a
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"clean" telephone line, sans modem, in his home. The defendant's
final claim of error posits that this condition, as phrased in the
written judgment, fails to make clear that the condition was not
intended to prohibit him from accessing the internet.4
We start our appraisal of this claim by noting that such
a supervised release condition normally should not be construed to
bar internet access. In reviewing a substantially similar
supervised release condition in an earlier case, we explained that
such a condition "affirmatively commands one particular action
(i.e., the maintenance of a certain type of phone line), but does
not expressly prohibit any other, including that of accessing the
internet from home." United States v. Rivera-López, 736 F.3d 633,
634 n.1 (1st Cir. 2013). Here, however, there is a problem with
the wording of the written supervised release condition.
In Rivera-López, we cautioned district courts to take
care in the use of language so as to make clear that the condition
of maintaining a telephone line sans modem is not a prohibition on
all internet usage. See id. The court below complied in part
with this admonition: when it announced the condition from the
bench at the disposition hearing, it began with the qualifying
phrase, "[i]n addition to any telephone or cell phone that he may
4The condition in the written judgment provided: "[The
defendant] shall maintain a telephone at his place of residence
without any special features, modems, answering machines, or
cordless telephones during the term of electronic monitoring."
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have. . . ." But in the written judgment, this qualifying language
was inexplicably omitted, and the written condition was
substantially similar to, if not less clear than, the condition
that we found suspect in Rivera-López. The result is that the
written judgment contains the very ambiguity against which the
Rivera-López court warned.
This oversight is easily corrected. We direct the
district court, on remand, to correct the judgment so that the
language of the challenged supervised release condition makes
clear that there is no prohibition on the defendant's access to
the internet.
III.
CONCLUSION
We need go no further. For the reasons elucidated above,
we affirm the sentence but remand the case with directions to
correct the challenged supervised release condition.
So ordered.
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