United States v. Torres-Nevarez

Not For Publication in West's Federal Reporter
United States Court of Appeals
For the First Circuit
No. 13-2396
UNITED STATES OF AMERICA,
Appellee,
v.
ROLANDO TORRES-NEVÁREZ,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. José Antonio Fusté, U.S. District Judge]
Before
Howard, Chief Judge,
Torruella and Selya, Circuit Judges.
Francisco J. Adams-Quesada, on brief for appellant.
Tiffany V. Monrose, Assistant United States Attorney, Rosa
Emilia Rodríguez-Vélez, United States Attorney, and Nelson Pérez-
Sosa, Assistant United States Attorney, Chief, Appellate Division,
on brief for appellee.
September 11, 2015
TORRUELLA, Circuit Judge. Defendant-Appellant Rolando
Torres-Nevárez ("Torres") contends that the district court erred
when it sentenced him to the higher end of the applicable
sentencing guidelines range. Torres pleaded guilty to possessing
a firearm in furtherance of drug trafficking in violation of 18
U.S.C. § 924(c)(1)(A) ("Count Three") and to a drug offense in
violation of 21 U.S.C. § 841(a)(1),(b)(1)(D) ("Count Two"). He was
sentenced to seventy-eight months in prison for Count Three and six
months in prison for Count Two. Torres argues that these sentences
are procedurally flawed because the district court did not take
into account some factors enumerated in 18 U.S.C. § 3553(a) during
sentencing. He also argues that his sentence is procedurally
unreasonable because the district court improperly considered his
prior arrests in sentencing. After careful consideration of both
claims, we affirm.
I. Background
Because Torres pleaded guilty, the facts and procedural
history are taken from the Presentence Investigation Report
("PSR"), the plea agreement, and the sentencing hearing. United
States v. King, 741 F.3d 305, 306 (1st Cir. 2014). On May 28,
2013, Puerto Rico Police Agents assigned to the Corozal Police
Station received an anonymous tip, which led them to conduct a
traffic stop of a Mazda pick-up truck. While approaching the
driver's side of the vehicle, the officers observed a firearm,
-2-
specifically a Glock pistol, model 23, caliber .40, with an
obliterated serial number. The firearm was loaded with 14 rounds
of ammunition. The police officers arrested the driver, Torres.
During a search of the vehicle, police seized 153 baggies of
marijuana and $2,115 in cash. Torres admitted to possessing the
"firearm in furtherance of a drug trafficking offense."
Pursuant to a plea agreement, Torres pleaded guilty on
July 22, 2013, to violating 21 U.S.C. § 841(a)(1), (b)(1)(D),
knowingly and intentionally possessing marijuana with intent to
distribute, and one count of violating 18 U.S.C. § 924(c)(1)(A),
possession of a firearm in furtherance of a drug trafficking crime.
Pursuant to § 2D1.1 of the Sentencing Guidelines, Torres's Base
Offense Level was calculated to be 6. Because Torres accepted
responsibility, a two-level decrease was applied, pursuant to
§ 3E1.1(a). This brought Torres's Total Offense Level to 4 for
Count Two. The PSR also stated that Torres had a total criminal
history score of 3, which, under USSG Chapter 5, Part A, placed
Torres in Criminal History Category II. The Plea Agreement stated
that "[f]or Count Two the parties agree to recommend a sentence of
imprisonment at the lower end of the applicable range . . . . [And]
for Count Three the parties agree to recommend a sentence of sixty
months."
A sentencing hearing was held on October 21, 2013, and
Torres was sentenced to six-months imprisonment on Count Two
-3-
(though the Plea Agreement recommended no prison sentence) and
seventy-eight months imprisonment on Count Three (though the Plea
Agreement recommended only sixty months). The sentences were to be
served consecutively to each other and to a pending state court
sentence.1 Torres was to be placed on supervised release for three
years as to Count Two and five years as to Count Three, to be
served concurrently with each other. Lastly, Torres was ordered to
pay a special monetary assessment of two hundred dollars. This
timely appeal followed.
II. Discussion
Torres presents two arguments on appeal. First, he
argues that the district court erred when it failed to take into
account some § 3553(a) factors at sentencing. Second, he argues
that the court erred in factoring his prior arrests into his
sentence.
A. 18 U.S.C. § 3553(a) Factors
Torres argues that his sentence is procedurally flawed
because the district court failed to take into account mitigating
§ 3553(a) factors at sentencing. The PSR lists the following
mitigating factors: Torres is a father of two children. He
maintains close ties to his family and community. He went to
school, played sports, and began an associate degree, which he did
not complete because he was able to find employment. Torres also
1
Torres also has to serve a two-year sentence at the state level.
-4-
has an extensive work history, which includes working in
promotions, bartending, and running his own restaurant and sports
bar. Torres argues that the district court should have taken these
mitigating factors into account during sentencing and that the
failure to do so renders his sentence procedurally flawed.
Because Torres failed to preserve his objection, we
review for plain error. See United States v. Fernández-Hernández,
652 F.3d 56, 71 (1st Cir. 2011). Under plain error review,
[a]n appellate court may, in its discretion,
correct an error not raised at trial only
where the appellant demonstrates that (1)
there is an error; (2) the error is clear or
obvious, rather than subject to reasonable
dispute; (3) the error affected the
appellant's substantial rights, which in the
ordinary case means it affected the outcome of
the district court proceedings; and (4) the
error seriously affects the fairness,
integrity or public reputation of judicial
proceedings.
Id. at 64 (quoting United States v. Marcus, 560 U.S. 258, 261
(2010)). "[A] reversal under plain error review requires a
reasonable probability that, but for the error, the district court
would have imposed a different, more favorable sentence." United
States v. Medina-Villegas, 700 F.3d 580, 583 (1st Cir. 2012)
(quoting United States v. Mangual-García, 505 F.3d 1, 15 (1st Cir.
2007)).
This court has a two-fold process for reviewing
sentences: first, we "determine whether the sentence imposed is
procedurally reasonable and then determine whether it is
-5-
substantively reasonable." United States v. Clogston, 662 F.3d
588, 590 (1st Cir. 2011) (citing United States v. Martin, 520 F.3d
87, 93 (1st Cir. 2008)). Procedural errors include "failing to
calculate (or improperly calculating) the Guidelines range,
treating the Guidelines as mandatory, failing to consider the
§ 3553(a) factors, selecting a sentence based on clearly erroneous
facts, or failing to adequately explain the chosen sentence —
including an explanation for any deviation from the Guidelines
range." Gall v. United States, 552 U.S. 38, 51 (2007).
The district court is not obligated to articulate all the
factors it took into consideration at sentencing. See United
States v. Turbides-Leonardo, 468 F.3d 34, 40 (1st Cir. 2006). This
court has previously held that a sentencing judge does not have to
"go through each of the § 3553(a) factors one by one." United
States v. Aponte-Vellón, 754 F.3d 89, 94 (1st Cir. 2014) (citing
United States v. Marsh, 561 F.3d 81, 86 (1st Cir. 2009) ("[W]e do
not require the [district] court to address [the § 3553(a)]
factors, one by one, in some sort of rote incantation when
explicating its sentencing decision." (internal quotation marks
omitted))). "Even silence is not necessarily fatal; a court's
reasoning can often be inferred by comparing what was . . .
contained in the presentencing report . . . with what the judge
did." United States v. Gilman, 478 F.3d 440, 446 (1st Cir. 2007)
(quoting Turbides-Leonardo, 468 F.3d 34, 41) (internal quotation
-6-
marks omitted). "[A] judge's statement that he has considered all
of the § 3553(a) factors is entitled to significant weight."
United States v. Arroyo-Maldonado, 791 F.3d 193, 199 (1st Cir.
2015) (citing United States v. Santiago-Rivera, 744 F.3d 229, 233
(1st Cir. 2014)).
We are satisfied that the district court did not
procedurally err as alleged. The PSR in this case contained all of
the relevant mitigating information that Torres emphasizes. And,
critically, the record makes clear that the court reviewed the PSR
and considered it in formulating its sentence. Indeed, the Judge
explicitly said, "Let's take a look at the facts of this case for
a minute, because you know I'm going to look into this. And I
already did." Equally important, the district court made plain
that it took all of the applicable § 3553(a) factors into account
and explained why the court reached the sentence it did. That the
court focused on Torres's criminal history and the nature of the
crime, rather than the mitigating factors he emphasized, does not
suggest that the court simply failed to consider those factors.
Instead, the court made quite clear that it considered all of the
information it had before it. We are therefore satisfied that the
district court did not err, plainly or otherwise, in failing to
provide a detailed explanation respecting each mitigating factor.
Nor, we briefly note, has Torres even attempted to meet
his burden of establishing prejudice. See Medina-Villegas, 700
-7-
F.3d at 583. That is, he has failed to argue that, assuming an
error had occurred, it impacted his sentence. Indeed, we doubt he
could satisfy this burden given the district court's thorough
explanation of why it chose the sentence it did. That is, the
court made clear that the sentence was warranted given the
defendant's background, the nature of the crime, and the relevant
§ 3553(a) factors. There is thus not a "reasonable probability
that, but for the error, the district court would have imposed a
different, more favorable sentence." Id.
B. Torres's Past Arrests
The crux of Torres's second argument is that the district
court erred in using his prior arrests to show that he is a "gun
lover" and "does not belong on [the] streets." Torres points to
various statements made by the district court as evidence that it
sentenced him "based on unsupported misapprehensions about the
legitimacy of the three dismissed cases, and erred in using those
cases as a basis" to mischaracterize him. The district court
described the defendant as a "lucky man" after his previous
encounters with the law. The court also referred to him as a
"gun-lover" and "a danger to the community" because "[a]ll these
charges got dismissed under Rule 64, which is a speedy trial
basically, without prejudice [and were] never refiled." Because
Torres did not preserve his objection, we review for plain error.
See Fernández-Hernández, 652 F.3d at 64.
-8-
As an initial matter, we must determine if the district
court erred in evaluating Torres's criminal history while
determining his sentence. Section 3553(a)(1) states the factors
that can be considered during sentencing, which include, "the
nature and circumstances of the offense and the history and
characteristics of the defendant." 18 U.S.C. § 3553(a)(1). We
have interpreted "history and characteristics of the defendant" to
include a defendant's criminal history. See, e.g., United States
v. Politano, 522 F.3d 69, 74-75 (1st Cir. 2008). Subsections
3553(a)(2)(B) and (C) establish that both deterrence and combating
recidivism are legitimate factors to be taken into account when
determining a sentence. See id. at 74 ("Sections 3553(a)(1) and
3553(a)(2)(c) invite the district court to consider, broadly, 'the
nature and circumstances of 'the offense and the history and
characteristics of the defendant' and the need for the sentence
imposed . . . to protect the public from further crimes of the
defendant.'"). Indeed, we have held that multiple arrests can be
indicative of a pattern. See United States v. Zapete-García, 447
F.3d 57, 61 (1st Cir. 2006) (finding that "a series of past arrests
might legitimately suggest a pattern of unlawful behavior even in
the absence of any convictions").
The district court did not plainly err by factoring in
Torres's arrest history. It is well established that a district
court may consider a wide range of circumstances relating to the
-9-
defendant's history in fashioning a sentence. See Pepper v. United
States, 562 U.S. 476, 487-88 (2011). Likewise, "[a] record of past
arrests or dismissed charges may indicate a pattern of unlawful
behavior even in the absence of any convictions." United States v.
Flores-Machicote, 706 F.3d 16, 21 (1st Cir. 2013) (quotation marks
omitted). In the present case, it is clear that Torres's arrest
record indicates a pattern of unlawful behavior as the charges were
related to drugs and firearms.
There was ample evidentiary support for the court's
account of Torres's past pattern of criminality. The PSR shows
that Torres was convicted of unlawfully possessing a firearm,
selling a firearm, and unlawfully possessing ammunition after
pleading guilty on July 17, 2013, in the Superior Court of Puerto
Rico. He also has three previous arrests for alleged violations of
Puerto Rico law. These facts drawn from the PSR may be taken as
established as this court has previously held that the
"unobjected-to facts contained in a PSR ordinarily are considered
reliable evidence for sentencing purposes." United States v.
Fernández-Cabrera, 625 F.3d 48, 54 (1st Cir. 2010) (quotation marks
omitted).
Torres has failed to establish that the district court's
use of his prior arrests and gun possession conviction constituted
plain error as he has failed to show that this reliance was
unreasonable or that not using the information would have led to a
-10-
lower sentence. Under the circumstances of this case, the district
court's sentence was not procedurally unreasonable because of the
court's reference to Torres's record of prior arrests.
III. Conclusion
Having found no plain error in the proceedings of the
district court, Torres's sentence is affirmed.
Affirmed.
-11-