United States v. Garay-Sierra

United States Court of Appeals
For the First Circuit
No. 16-2394
UNITED STATES OF AMERICA,
Appellee,
v.
WILFREDO GARAY-SIERRA,
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,
Lynch and Thompson, Circuit Judges.
Derege B. Demissie and Demissie & Church on brief for
appellant.
John P. Cronan, Acting Assistant Attorney General, Amanda B.
Harris, Attorney, Criminal Division, Appellate Section, United
States Department of Justice, Rosa E. Rodríguez–Vélez, United
States Attorney, and Thomas F. Klumper, Assistant United States
Attorney, Acting Chief, Appellate Division, on brief for appellee.
March 16, 2018
THOMPSON, Circuit Judge.
PREFACE
Wilfredo Garay-Sierra ("Garay") is back with us again,
this time contesting an 84-month prison term he received on a
firearm charge following a remand for resentencing. Stating our
conclusion up front: we affirm, for reasons we will come to, right
after we highlight those details (and only those details) needed
to understand the present appeal — interested readers can find
more info in our earlier opinion, reported at United States v.
Garay-Sierra, 832 F.3d 64 (1st Cir. 2016).
CASE TRAVEL
Indictment and Plea Agreement
Indicted for carrying and brandishing a shotgun during
a crime of violence, see 18 U.S.C. § 924(c)(1)(A)(ii), Garay pled
guilty — as part of a plea agreement with the government — only to
possessing the weapon. Garay-Sierra, 832 F.3d at 65-66.1 The
criminal code imposes a mandatory-minimum sentence of 60 months
and a maximum of life on anyone who "possesses a firearm" during
a crime of violence. See id. at 69 (citing 18 U.S.C.
1 Because this appeal follows a guilty plea, we draw the
background material (as we did before) from the plea agreement,
the transcripts of the pertinent court hearings, and the undisputed
portions of the pre-sentence investigation report ("PSR" — fyi,
Garay agreed in his sentencing memo that "the facts of the case"
in the PSR "are correct"). See id. at 66 n.1.
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§ 924(c)(1)(A)(i)). But it imposes a mandatory-minimum sentence
of 84 months and a maximum of life on anyone who "brandishe[s]" a
"firearm" during a crime of violence. See id. (citing 18 U.S.C.
§ 924(c)(1)(A)(ii)); see also United States v. Vargas-García, 794
F.3d 162, 164-65 (1st Cir. 2015). So by copping to "possession,"
Garay acknowledged that his admission of guilt exposed him to a
sentence of 60 months to "life."
Original Sentence
Unfortunately, the judge found at Garay's initial
sentencing that he had "brandished" the shotgun. The judge then
used that finding to boost the mandatory-minimum sentence from 60
months to 84 months. See Garay-Sierra, 832 F.3d at 69. And after
going over the relevant sentencing factors in 18 U.S.C. § 3553(a),
the judge hit Garay with an 84-month sentence for the firearm
offense.2 See id. at 66.
2 The § 3553(a) factors include:
(1) the nature and circumstances of the offense and the
history and characteristics of the defendant;
(2) the need for the sentence imposed —
(A) to reflect the seriousness of the offense, to
promote respect for the law, and to provide just
punishment for the offense;
(B) to afford adequate deterrence to criminal conduct;
(C) to protect the public from further crimes of the
defendant; and . . .
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We said "unfortunately" a second ago for a reason. You
see, caselaw holds that "[a]ny fact that, by law, increases the
penalty for a crime is an element that must be submitted to the
jury and found beyond a reasonable doubt." Alleyne v. United
States, 570 U.S. 99, 102 (2013) (quotation marks omitted). This
being so, and because the judge-found brandishing finding upped
the applicable mandatory-minimum term, we had no choice but to
vacate that sentence and remand for a sentencing do-over. See
Garay-Sierra, 832 F.3d at 69.
Resentence and Reappeal
Fast forward to the resentencing hearing. There, the
judge noted that Garay faced a mandatory minimum of at least 60
months' imprisonment "because the plea was possession of a
firearm," with the mandatory minimum also serving as the guideline
sentence for his offense. See United States v. Rivera-González,
776 F.3d 45, 49 (1st Cir. 2015) (explaining that the "mandatory
minimum sentence under section 924(c) . . . is deemed to be the
guideline sentence"). Consistent with the plea agreement, Garay
and the government recommended a 60-month sentence.
(6) the need to avoid unwarranted sentence disparities
among defendants with similar records who have been
found guilty of similar conduct . . . .
Section 3553(a) also requires judges to "impose a sentence
sufficient, but not greater than necessary, to comply with the
purposes" of sentencing listed in factor (2).
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Reminding everyone that he had discussed and applied
many of the § 3553(a) factors at Garay's original sentencing, the
judge thought he should say a few more words on two of them. First
the judge talked about the heightened need for deterrence given
"Puerto Rico's high firearms and violent crime rate." Then the
judge spoke about the seriousness of Garay's offense. Relying (at
least implicitly) on the unobjected-to facts in the PSR, the judge
commented that while Garay had pled guilty to possessing the
shotgun, he had "carried" the firearm during a carjacking, which
the judge said meant he had "brandished" the firearm as defined by
the pertinent statute and sentencing guideline.3 In other words,
from these references we take it the judge ruled that these facts
showed Garay had displayed the gun (Garay had carried a shotgun as
he and his fellow carjackers ordered the two victims into the
3 18 U.S.C. § 924(c)(4) says "the term 'brandish' means, with
respect to a firearm, to display all or part of the firearm, or
otherwise make the presence of the firearm known to another person,
in order to intimidate that person, regardless of whether the
firearm is directly visible to that person." And U.S.S.G. § 1B1.1,
commentary (note 1(C)), similarly says
"[b]randished" with reference to a dangerous weapon
(including a firearm) means that all or part of the
weapon was displayed, or the presence of the weapon was
otherwise made known to another person, in order to
intimidate that person, regardless of whether the weapon
was directly visible to that person. Accordingly,
although the dangerous weapon does not have to be
directly visible, the weapon must be present.
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vehicle — as reported in the PSR, without contradiction), thus
meeting the brandishing definitions in the statute and guideline.
The judge also noted that one of Garay's carjacking cohorts,
referred to in the PSR as "Minor 1," had brutalized the carjackees,
(a) hitting the male victim on the head with a silver handgun and
threatening to kill him, and (b) sexually assaulting the female
victim.
Again repeating that he knew the plea agreement
"exposed" Garay "to a statutory minimum" term of 60 months behind
bars, the judge concluded that, based on the reasons he had given,
an 84-month term was "sufficient but not greater than necessary"
to accomplish the goals of sentencing set out in § 3553(a).
Garay's counsel objected, calling the sentence procedurally
unsound and substantively unreasonable because, to his way of
thinking, the judge spent too much time dwelling on Minor 1's
conduct in sifting through the facts — facts, by the way, that
counsel conceded "did occur." Quoting from our earlier opinion,
the prosecutor insisted that Garay was hardly "an innocent
bystander" and clarified that Minor 1's silver handgun turned out
to be "a fake." Garay's counsel's objection did not cause the
judge to rethink the sentence.
An unhappy Garay now appeals his resentencing.
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ARGUMENTS AND ANALYSIS
Rather than repeat the arguments the district judge gave
a thumbs down to, Garay raises two entirely new claims in the hopes
of scoring a reversal. The first is a claim that the judge wrongly
rejected the parties' plea agreement. The second is a multipart
claim that the judge procedurally erred in sentencing him to 84
months of imprisonment (Garay doesn't come right out and call each
part a procedural error, but that's the gist of his argument, given
how he pitches the claim to us). For those unfamiliar with the
intricacies of federal-sentencing law, a judge procedurally errs
by, among other things, "selecting a sentence based on erroneous
facts." Gall v. United States, 552 U.S. 38, 51 (2007).4 Using
language strikingly similar to the Gall passage, Garay starts off
this facet of his procedural-reasonableness claim by blasting the
judge for "relying upon an erroneous finding of brandishing a
firearm in resentencing [him] to the same term as the vacated and
remanded original sentence." To hear him tell it, the judge-found
brandishing finding does not jibe with Alleyne's teachings;
4 See generally United States v. McCall, 649 Fed. App'x 945,
947 (11th Cir. 2016) (considering an alleged Alleyne error under
the procedural-reasonableness rubric); United States v. Cassius,
777 F.3d 1093, 1096-97 (10th Cir. 2015) (finding no "procedural
error" under Alleyne because the "court only used its own . . .
finding as a mere sentencing factor to help choose a sentence
within the proper statutory range").
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alternatively, he argues, the record facts hardly constitute
brandishing as that term is understood in the relevant statute and
sentencing guideline; and alternatively still, he insists, the
judge relied on nonrecord facts in his sentencing assessment.
Garay wraps up his procedural-reasonableness claim by faulting the
judge for premising the sentence on Puerto Rico's violent-crime
rate rather than on an individualized assessment of his
circumstances and for creating a disparity between his sentence
and the sentences of other defendants across the country. The
government, unsurprisingly, thinks Garay's analysis is wrong from
start to finish. We, for our part, think the government is more
right than Garay.
Standard of Review
The parties sort of talk past each other over which
standard of review applies. Garay believes he properly preserved
each issue, thus triggering "abuse of discretion" and "harmless
error" review. The government believes he preserved nothing, thus
triggering "plain error" review. We agree with the government
that because his arguments here are different from the ones he
made below, Garay must show plain error — an excruciatingly
difficult task, requiring him to prove "error, plainness,
prejudice to [him], and the threat of a miscarriage of justice."
See United States v. Torres–Rosario, 658 F.3d 110, 116 (1st Cir.
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2011); see also United States v. Harakaly, 734 F.3d 88, 94 (1st
Cir. 2013).
Plea-Agreement Claim
On to Garay's first batch of arguments, which focuses on
how the judge (supposedly) botched matters by rejecting the
parties' plea agreement. Regrettably for Garay, though, plain
error is plainly absent here.
Contrary to what Garay thinks, the judge did accept the
plea agreement — the judge simply rejected the parties' joint
sentencing recommendation, as he had every right to do. The reason
for this is straightforward. The parties executed a plea agreement
under a rule of criminal procedure that says the government agrees
to "recommend, or agree[s] not to oppose the defendant's request,
that a particular sentence or sentencing range is appropriate" —
but (and it is a very big "but") the rule then says "such a
recommendation or request does not bind" the judge. See Fed. R.
Crim. P. 11(c)(1)(B) (emphasis added).5 And all signs point to
Garay's knowing about the plea agreement's terms, despite his
assertions otherwise. We say this because the judge asked him
point-blank if he knew that (a) "the plea agreement is just a
5The plea agreement is emblazoned with "Pursuant to Rule
11(c)(1)(B) FRCP" under the case caption — which definitively shows
what type of plea agreement the parties signed on to.
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recommendation to me," that (b) "I can reject those recommendations
without permitting you to withdraw your plea of guilty," and that
(c) "I can impose a sentence on you that is either more severe or
less severe" than "the sentence being recommended" by the parties.
And Garay answered "[y]eah" to each question. So, because the
judge was "not bound by the parties' mutual embrace of a
recommended sentence," see Rivera-González, 776 F.3d at 51, Garay
has shown no error — much less plain error — on the plea-agreement
issue.
Garay talks up a couple of cases in an attempt to
persuade us differently. But neither is a difference-maker because
each relies on rules other than Rule 11(c)(1)(B). In re Morgan,
for example, is a Ninth Circuit case involving an agreement made
under Rule 11(c)(1)(C). See 506 F.3d 705, 707 (9th Cir. 2007).
That rule says a stipulated sentence "binds" the judge if the judge
"accepts the plea agreement," see Fed. R. Crim. P. 11(c)(1)(C)
(emphasis added) — and so is unlike the rule in play here. United
States v. Escobar Noble is a case by us involving a charge bargain.
See 653 F.2d 34, 35-36 (1st Cir. 1981); see generally United States
v. Carrozza, 807 F. Supp. 156, 158 (D. Mass. 1992) (explaining
that Escobar Noble involved a charge bargain). A charge bargain
is a plea agreement where the prosecutor agrees to drop certain
charges in exchange for the defendant's guilty plea on other
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charges. See Black's Law Dictionary 1338 (10th ed. 2014).6 A
judge may, as a matter of discretion, "accept . . . [or] reject [a
charge-bargain agreement], or may defer a decision until the
[judge] reviewed the [PSR]." See Fed. R. Crim. P. 11(c)(3)(A).
As Garay notes, Escobar Noble says an abuse of discretion occurs
if a judge rejects a charge bargain when there is a "consideration
so compelling as to necessitate acceptance of the plea." 653 F.2d
at 36. But because Garay's agreement is not a charge bargain,
Escobar Noble is of no help to him. And no more need be said about
these cases.
Procedural-Reasonableness Claim
Garay fares no better with his multifaceted procedural-
reasonableness claim — here too we agree with the government that
6 See generally United States v. Vanderwerff, 788 F.3d 1266,
1271 (10th Cir. 2015) (explaining that "[p]lea bargains are
commonly either 'charge bargains,' where the prosecutor agrees to"
nix "some charges" if the defendant agrees to plead guilty "on
others, or 'sentence bargains,' where the prosecutor agrees to
support, or at least not oppose, a particular sentence" — and
adding that judges "enjoy considerable discretion in their
consideration of sentence bargains because 'the prosecution's role
. . . is strictly advisory,'" though "judicial discretion is more
limited with respect to charge bargains because such bargains 'are
primarily a matter of discretion for the prosecution' and the
[judges'] 'sentencing discretion is implicated only as an
incidental consequence of the prosecution's exercise of executive
discretion'" (quoting United States v. Robertson, 45 F.3d 1423,
1437-38 (10th Cir. 1995))).
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the judge's conduct does not come within shouting distance of plain
error.7
Brandishing Issue
Interestingly, Garay concedes that the district judge
"technically followed" Alleyne during resentencing because the
judge never suggested that the judge-found brandishing finding
triggered an 84-month mandatory minimum. He just basically thinks
the judge violated Alleyne's spirit by using the "erroneous"
finding to reimpose the same 84-month term as before. Though
artfully crafted, we believe his contention falls well short of
satisfying the exacting plain-error standard.
To protect an accused's Sixth Amendment rights, Alleyne
says any fact (other than the fact of a prior conviction) that
jacks up a compulsory minimum sentence must be found by a jury (or
by a judge in a bench trial) beyond a reasonable doubt, if the
7 Garay's brief makes no adequately developed claim that the
sentence is substantively unreasonable, thus waiving any argument
in this direction that he might have had. See, e.g., United States
v. Taylor, 848 F.3d 476, 496 n.9 (1st Cir. 2017); Rodríguez v.
Municipality of San Juan, 659 F.3d 168, 175 (1st Cir. 2011). And
even if not waived, any argument in the substantive-reasonableness
direction would fail: the judge reasonably considered how Garay's
displaying of the shotgun instilled fear in the victims and how
the shotgun helped the crime succeed — so the 84-month prison term
rests on "a plausible sentencing rationale" and reaches "a
defensible result," making the sentence "substantively
reasonable." See United States v. Martin, 520 F.3d 87, 96 (1st
Cir. 2008).
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defendant does not admit the fact. See 570 U.S. at 103. But while
a judge cannot make findings to establish a mandatory minimum, he
can make findings under a preponderance standard "to guide [his]
discretion in selecting a punishment within limits fixed by law."
See id. at 113 n.2 (quotation marks omitted). That is true even
if such findings cause the judge "to select sentences that are
more severe than the ones [he] would have selected without those
facts." See id. After all, to quote Alleyne again, "nothing" in
the whole history of sentencing suggests judges cannot "exercise
discretion — taking into consideration various factors relating
both to offense and offender — in imposing a judgment within the
range prescribed by statute." Id. at 116 (quotation marks
omitted).
Turning from generalities to specifics, we stress that
the judge's gun-brandishing finding did not set the statutory
minimum — Garay's gun-possessing plea did, leading to a sentence
of at least 60 months and up to life in prison, as the judge
himself essentially recognized.8 All the judge did was use his
brandishing finding to pick a sentence within that authorized range
8
This means Garay's case is quite different from the big
cases he hangs his hat on, Alleyne and United States v. Lewis, 802
F.3d 449 (3d Cir. 2015). A Sixth Amendment problem existed in
both Alleyne and Lewis because the judges' brandishing findings
fixed the mandatory minimums, see Alleyne, 570 U.S. at 104, 107-
18; Lewis, 802 F.3d at 453-54 — a problem that does not exist here.
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— something that is perfectly permissible in a post-Alleyne world.
See United States v. Ramírez-Negrón, 751 F.3d 42, 48-51 (1st Cir.
2014) (emphasizing, among other things, that "no Alleyne error
occurs when there is no mandatory minimum sentence imposed which
is triggered by judicial factfinding"); see also United States v.
Moore, 634 F. App'x 483, 488 (6th Cir. 2015) (affirming an 8-year
sentence based on a judge's finding that the defendant "discharged"
a weapon, even though the jury convicted him "of using" the weapon,
because the finding "did not increase the applicable statutory
minimum" — the judge "acknowledged" that a 5-year mandatory minimum
applied and opted to add 3 years to the term; and while "[i]t may
seem anomalous" that a sentencing court cannot use "its own factual
findings to impose a higher mandatory sentence" but can "use its
own factual findings to increase the sentence over the mandatory
minimum[,] . . . Alleyne seems to contemplate and accept the
possibility"). So we see no error, say nothing of plain error.
Which brings us to Garay's claim that the facts do not
add up to brandishing, as defined by the applicable statute and
sentencing guideline — both of which (remember) say brandish means
"to display all or part of" a gun or make the gun's "presence known
. . . to another person, in order to intimidate the person,
regardless of whether the" gun is or was "directly visible to that
person." See 18 U.S.C. § 924(c)(4); U.S.S.G. § 1B1.1, comment.
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(n.1(C)). Noting that neither provision mentions "the word
'carry,'" Garay does admit that one can "carry a firearm and also
brandish it at the same time," provided he "make[s] it known to
the victim or witness that he . . . is in possession of a weapon
for the purpose of intimidation." He just thinks the facts here
do not meet either the statutory or the guideline definition.
The problem for Garay is that the unobjected-to facts
in the PSR reveal that he "entered" a "vehicle" during the
carjacking "and sat on the passenger's seat while carrying a black
shotgun" — facts we can and do take as true. See, e.g., United
States v. O'Brien, 870 F.3d 11, 19 (1st Cir. 2017). And he fails
to cite any caselaw — and we have found none — holding that such
conduct does not amount to "display[ing] all or part of the" gun
for statutory or guideline purposes. That spells trouble for
Garay: because "plain error" is "an indisputable error . . .,
given controlling precedent," his challenge here necessarily comes
up short. See United States v. Morosco, 822 F.3d 1, 21 (1st Cir.
2016) (quotation marks omitted); see also Cheshire Med. Ctr. v.
W.R. Grace & Co., 49 F.3d 26, 31 (1st Cir. 1995) (finding no plain
error because, among other reasons, "no decision cited to us, and
none of which we are aware," showed the obviousness of the alleged
error).
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As for Garay's argument that the judge relied on facts
not in the record, nothing he says comes close to establishing
plain error. In the section of his brief dealing with the
brandishing issue, Garay first says the judge, in discussing all
the relevant circumstances surrounding the crime's commission,
"repeatedly" mentioned Minor 1's use of a silver handgun without
stating the gun "was a toy" — Garay suggests the judge would have
made a better sentencing decision absent that "oversight."9 But
devastating to Garay's claim, the judge signaled no signs of
confusion about the gun's status — the judge relied on the PSR, a
document that called the handgun a "[t]oy," and the prosecutor
made sure the judge knew that fact at the end of the sentencing
hearing. Garay also complains how the judge mentioned the threat
to the male victim's life, a "fact," he writes, that appears "only
. . . in the 'Offense Conduct' section of the PSR," not in the
plea agreement or anywhere else — Garay again believes the judge
would have gone easier on him absent the threat stuff. But because
Garay did not object to the facts in the PSR, the judge "could
treat the [threat] fact as true for sentencing purposes," see
United States v. Ocasio–Cancel, 727 F.3d 85, 92 (1st Cir. 2013) —
9 Garay does not say the shotgun was fake.
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making this not the stuff of plain error (or error of any kind,
actually).
Local-Crime-Rate Issue
After spending a couple of pages questioning whether
lengthy sentences actually deter persons from committing crimes,
Garay ends up arguing that his sentence is also procedurally
unreasonable because (to his mind) the judge placed too much
emphasis on the prevalence of gun violence in Puerto Rico and not
enough emphasis on his individual characteristics. We see it
differently.
Yes, as Garay argues, the judge did discuss community-
based factors, like the pervasiveness of gun-related crimes in
Puerto Rico. But the judge tied his discussion to the need for
deterrence — a legitimate sentencing goal, no ifs, ands, or buts
about that. See, e.g., United States v. Romero–Galindez, 782 F.3d
63, 73 (1st Cir. 2015); United States v. Flores–Machicote, 706
F.3d 16, 23 (1st Cir. 2013). True, as Garay also notes, a judge
can reversibly err by "focus[ing] too much on the community and
too little on the individual." Flores–Machicote, 706 F.3d at 24.
But nothing like that happened here.
Our review of the entire record (encompassing the
judge's original sentencing analysis, which he incorporated by
reference at resentencing) convinces us that the judge sentenced
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Garay after considering the totality of the circumstances, with
community-based concerns being just one part of the decisional
calculus. At the original sentencing, for example, the judge
touched on "Garay's characteristics and history (his youth, drug
addiction, limited intellectual capacity, bouts with depression,
etc.), the seriousness of the offense (noting [how] an accomplice
of Garay had sexually assaulted one of the carjacked victims in
Garay's presence)," as well as "the need to deter criminal conduct,
protect the public, promote respect for the law, and deliver just
punishment." See Garay-Sierra, 832 F.3d at 66. And at the
resentencing, the judge discussed again just how serious Garay's
crime was, in addition to discussing the need for deterrence. Our
take then is that the judge acted quite properly under prevailing
law. See United States v. Zapata-Vázquez, 778 F.3d 21, 23-24 (1st
Cir. 2015) (finding no procedural error where the sentencer
"underscored community characteristics, but not at the expense of
also weighing the specific circumstances of [defendant's] case").
The bottom line is that we detect no error here, plain or
otherwise.10
10
In a different part of his brief, Garay suggests in a single
sentence that the judge "focused" only "on one [sentencing] factor,
to provide adequate general deterrence." But what we just wrote
undercuts that claim. Hence we still see no error, let alone a
plain one. See generally Garay-Sierra, 832 F.3d at 68 (noting
that while "sentencers must consider the relevant § 3553(a)
factors[,] . . . they need not give each factor equal billing"
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Sentencing-Disparity Issue
We come then to the final facet of Garay's procedural-
reasonableness claim, which, like the others, is not a winner for
him.
After comparing sentences imposed by federal judges in
Puerto Rico with sentences imposed by their colleagues across the
country, Garay implies that his sentence implicates a national
sentencing disparity. As we mentioned in a footnote many pages
ago, § 3553(a)(6) tells courts "to avoid unwarranted sentence
disparities among defendants with similar records who have been
found guilty of similar conduct" — a provision, our caselaw says,
that is "aim[ed] primarily at the minimization of disparities among
defendants nationally." See United States v. Martin, 520 F.3d 87,
94 (1st Cir. 2008). Garay, though, never explains how his
situation is sufficiently similar to his proposed comparators —
(quotation marks omitted)); United States v. Denson, 689 F.3d 21,
28 (1st Cir. 2012) (declaring that judges "need not mention every
§ 3553(a) factor nor intone any particular magic words," and they
"certainly . . . need not give each factor equal billing"); see
also generally United States v. Suárez–González, 760 F.3d 96, 101–
02 (1st Cir. 2014) (emphasizing that balancing the relevant
§ 3553(a) factors "is precisely the function that a sentencing
court is expected to perform"); United States v. Carrasco–De–
Jesús, 589 F.3d 22, 29 (1st Cir. 2009) (stressing that "[a]
criminal defendant is entitled to a weighing" of pertinent factors,
"not to a particular result").
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proving yet again that he cannot succeed on plain-error review.
See Flores-Machicote, 706 F.3d at 24-25.
And that is that.
FINAL WORDS
Having worked through Garay's claims, we affirm his
sentence.
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