United States v. Rivera-Berrios

United States Court of Appeals
For the First Circuit
No. 17-1212
UNITED STATES OF AMERICA,
Appellee,
v.
EZEQUIEL RIVERA-BERRÍOS,
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 Barron,
Circuit Judges.
Andrew S. Crouch for appellant.
Thomas F. Klumper, Assistant United States Attorney, Senior
Appellate Counsel, with whom Rosa Emilia Rodríguez-Vélez, United
States Attorney, and Mariana E. Bauzá-Almonte, Assistant United
States Attorney, Chief, Appellate Division, were on brief, for
appellee.
August 24, 2018
SELYA, Circuit Judge. This appeal presents a question
of first impression in this circuit: may a sentencing court assess
criminal history points for a prison sentence imposed following
revocation of probation when the revocation-triggering conduct
also constitutes the gravamen of the federal offense of conviction?
Concluding, as we do, that the court below correctly factored the
revocation sentence into the appellant's criminal history score
and proceeded to fashion a substantively reasonable sentence for
the offense of conviction, we affirm.
I. BACKGROUND
Because this appeal follows in the wake of a guilty plea,
we take the facts from the change-of-plea colloquy, the uncontested
portions of the presentence investigation report (PSI Report), and
the transcript of the sentencing hearing. See United States v.
Rentas-Muñiz, 887 F.3d 1, 2 (1st Cir. 2018); United States v.
Blodgett, 872 F.3d 66, 68 (1st Cir. 2017).
In December of 2013, defendant-appellant Ezequiel
Rivera-Berríos was convicted in a Puerto Rico court on one count
of aggravated illegal appropriation and one count of illegal
possession of a firearm. The court sentenced him to two
consecutive three-year terms of probation. We fast-forward to May
of 2016, when local police officers conducted a search of the
appellant's residence in Cataño, Puerto Rico. They found a massive
cache of weapons, including an AK-47-type rifle loaded with 74
- 2 -
rounds of ammunition. They also discovered a ziplock bag
containing three face masks, a black ski hat, and other
paraphernalia often associated with criminal activity.
A federal grand jury sitting in the district of Puerto
Rico subsequently charged the appellant with being a felon in
possession of firearms and ammunition. See 18 U.S.C. § 922(g)(1).
After initially maintaining his innocence, the appellant pleaded
guilty on September 27, 2016. About five weeks later — subsequent
to the appellant's guilty plea but before his federal sentencing
— a Puerto Rico court revoked the appellant's terms of probation
for the 2013 offenses and sentenced him instead to two consecutive
three-year prison terms (the revocation sentence). Although the
record contains very few details concerning the revocation
proceeding, the parties agree that the revocation was triggered,
at least in part, by the same unlawful weapons possession that
formed the basis of the appellant's federal conviction under
section 922(g)(1).
In the PSI Report, the probation office recommended that
the appellant be held responsible for a total offense level of 17
and slotted him into criminal history category (CHC) III,
generating a guideline sentencing range of 30 to 37 months. See
USSG Ch. 5, Pt. A (Sentencing Table). The appellant objected to
his placement in CHC III, but the district court overruled his
objection and adopted all of the recommended guideline
- 3 -
calculations. At the disposition hearing, the court weighed the
factors limned in 18 U.S.C. § 3553(a) and imposed an upwardly
variant sentence — 48 months' imprisonment — to be served
consecutively to the revocation sentence. This timely appeal
followed.
II. ANALYSIS
As a general matter, we review the imposition of a
sentence for abuse of discretion. See Gall v. United States, 552
U.S. 38, 51 (2007); United States v. Martin, 520 F.3d 87, 92 (1st
Cir. 2008). This process "is characterized by a frank recognition
of the substantial discretion vested in a sentencing court."
United States v. Flores-Machicote, 706 F.3d 16, 20 (1st Cir. 2013).
Judicial review of a challenged sentence typically
entails "a two-step pavane." Id. At the first step, we consider
claims of procedural error, which 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,
552 U.S. at 51. If this step is successfully navigated, we proceed
to the next step and appraise the sentence for substantive
reasonableness. See id. This latter inquiry necessitates an
evaluation of "the totality of the circumstances." Id.
- 4 -
A
We begin with the appellant's claim of procedural error.
Understanding the anatomy of a sentence helps to lend perspective.
A sentencing court's first task is to establish the
proper guideline sentencing range. See id. at 49; Martin, 520
F.3d at 91. Two factors combine to produce this range in a
particular case: the defendant's total offense level and his CHC.
See United States v. Pinkham, 896 F.3d 133, 139 (1st Cir. 2018).
The appellant does not quarrel with the district court's
calculation of his total offense level but, rather, trains his
fire on the court's CHC determination.
A defendant's CHC is derived from his criminal history
score. See id.; United States v. Sanchez, 354 F.3d 70, 81 (1st
Cir. 2004). By way of example, a defendant who has a criminal
history score of four to six is placed in CHC III, whereas a
defendant who has a score of two or three is placed in CHC II.
See USSG Ch. 5, Pt. A (Sentencing Table). The lower a defendant's
CHC, the lower his guideline sentencing range is apt to be. See
Pinkham, 896 F.3d at 139.
To arrive at a defendant's criminal history score, the
sentencing court must first review any sentences previously
imposed on the defendant and determine whether to add zero, one,
two, or three points for each such sentence. See USSG §§4A1.1,
4A1.2. A prior sentence of imprisonment exceeding one year and
- 5 -
one month ordinarily requires the assessment of three points. See
id. §4A1.1(a). By contrast, a sentence of probation or of fewer
than sixty days' imprisonment ordinarily adds one point to the
defendant's score. See id. §4A1.1(c). Relatedly, the guidelines
require that two more points be added if the defendant committed
the offense of conviction (that is, the offense for which he is
being sentenced) "while under any criminal justice sentence,
including probation, parole, supervised release, imprisonment,
work release, or escape status." Id. §4A1.1(d).
Here, the district court assessed three points for the
revocation sentence of six years. See id. §4A1.1(a). It added
two more points because the appellant committed the offense of
conviction while on probation. See id. §4A1.1(d). The appellant
challenges the first of these assessments, insisting that only one
point should have been awarded since the Puerto Rico court
originally imposed a straight probationary sentence. Because this
preserved claim of error implicates the interpretation and
application of the guidelines, it engenders de novo review. See
United States v. McCormick, 773 F.3d 357, 359 (1st Cir. 2014).
Despite its superficial appeal, the appellant's
challenge lacks force. When imposing a sentence in a subsequent
case, the sentencing court must "add the original term of
imprisonment to any term of imprisonment imposed upon revocation
[of probation]" in tabulating the defendant's criminal history
- 6 -
score. USSG §4A1.2(k)(1). Where, as here, "the language of the
[applicable] guideline is plain and unambiguous, that is the end
of the matter." United States v. Suárez-González, 760 F.3d 96, 99
(1st Cir. 2014). Under the luminously clear language of section
4A1.2(k)(1), any term of imprisonment imposed upon revocation of
probation must be added to the original probationary term for the
purpose of determining the defendant's criminal history score.
See United States v. Van Anh, 523 F.3d 43, 61 (1st Cir. 2008).
The Sentencing Commission's commentary fully supports
this construction. It admonishes a sentencing court not to "count
the original sentence and the resentence after revocation as
separate sentences." USSG §4A1.2, cmt. n.11. Instead, the court
is directed to add "the sentence given upon revocation . . . to
the original sentence of imprisonment, if any," so that "the total
should be counted as if it were one sentence." Id. We treat such
commentary as authoritative unless it conflicts with federal law,
see Stinson v. United States, 508 U.S. 36, 38 (1993); United States
v. Cates, 897 F.3d 349, __ (1st Cir. 2018) [No. 17-1423, slip op.
at 7], and the appellant has not identified any such conflict with
respect to the quoted commentary.
Given the explicit language of the applicable sentencing
guideline and the reinforcement supplied by the commentary, we
conclude that the court below was correct in looking to the term
of imprisonment imposed upon revocation of probation when
- 7 -
computing the appellant's criminal history score for the offense
of conviction. Because that sentence exceeded one year and one
month — indeed, it aggregated six years — the court appropriately
attributed three criminal history points to it. See USSG
§4A1.1(a).
The appellant resists this straightforward conclusion.
He argues that the district court should not have factored the
revocation sentence into his criminal history score because the
conduct that triggered the revocation was essentially the same
conduct that formed the basis for the offense of conviction. He
predicates this argument on the theory that a court may not count
a prior sentence toward a defendant's criminal history score if
that prior sentence was imposed for conduct that is "part of the
instant offense." USSG §4A1.2(a)(1); see United States v. Cyr,
337 F.3d 96, 99 n.1 (1st Cir. 2003). In the appellant's view, the
district court impermissibly double-counted the conduct underlying
his 2016 felon-in-possession offense by factoring that conduct
into both his total offense level and his criminal history score.
We do not agree.
We acknowledge, of course, that the rule forbidding a
court from counting a prior sentence toward a defendant's criminal
history score if that prior sentence was imposed for conduct that
is part of the offense of conviction is designed to avoid double-
- 8 -
counting.1 See United States v. Nance, 611 F.3d 409, 413 (7th Cir.
2010); see also USSG §4A1.2, cmt. n.1 (excluding sentences imposed
for conduct qualifying as relevant conduct under USSG §1B1.3 from
criminal history score). But that is not what happened here. The
salient distinction arises out of "the relation-back aspect of the
law." United States v. Dozier, 555 F.3d 1136, 1140 (10th Cir.
2009). As we explained in an analogous context, a post-revocation
sanction "is treated as part of the penalty for the initial
offense." United States v. McInnis, 429 F.3d 1, 5 (1st Cir. 2005)
(citing Johnson v. United States, 529 U.S. 694, 699-700 (2000)).
In other words, revocation of probation is "a modification of the
terms of the original sentence," which "implicates solely the
punishment initially imposed for the offense conduct underlying
that sentence." United States v. Coast, 602 F.3d 1222, 1223 (11th
Cir. 2010) (quoting United States v. Woods, 127 F.3d 990, 992-93
(11th Cir. 1997) (per curiam)). Even when — as in this case — the
revocation conduct itself constitutes a crime, "the sanction is
1
We hasten to add that double-counting is not entirely
forbidden in the sentencing context — a context in which "double
counting is a phenomenon that is less sinister than the name
implies." United States v. Zapata, 1 F.3d 46, 47 (1st Cir. 1993).
Such a conclusion flows logically from a recognition of the fact
that sentencing factors "do not come in hermetically sealed
packages, neatly wrapped and segregated one from another." United
States v. Lilly, 13 F.3d 15, 19 (1st Cir. 1994). Thus, multiple
sentencing factors may quite properly "draw upon the same nucleus
of operative facts while nonetheless responding to discrete
concerns." Id.
- 9 -
independent of — and potentially in addition to — regular criminal
prosecution for [that] crime." United States v. Brennick, 337
F.3d 107, 109 (1st Cir. 2003) (per curiam).
These principles are dispositive here. The revocation
of the appellant's probation was, at bottom, a penalty for the
conduct underlying the 2013 sentence (the local-law crimes of
aggravated illegal appropriation and illegal possession of a
firearm). The fact that Puerto Rico authorities revoked the
appellant's probation for the same firearms possession that
triggered his federal conviction under section 922(g)(1) "does
not, for criminal history purposes, sever the conduct from the
original . . . sentence attributable to his [2013 conviction]."
Dozier, 555 F.3d at 1140 (quoting United States v. Wheeler, 330
F.3d 407, 412 (6th Cir. 2003)). We hold, therefore, that a
sentencing court may assess criminal history points for a prison
sentence imposed following revocation of probation,
notwithstanding that the revocation-triggering conduct also
constitutes the gravamen of the federal offense of conviction.
Even though this is a matter of first impression in this
circuit, we do not write on a pristine page. No fewer than four
other courts of appeals have concluded — as do we — that post-
revocation penalties are "part of the sentence for the original
crime of conviction, even where the facts underlying the revocation
are precisely the same as those providing the basis for conviction
- 10 -
in the instant case." Wheeler, 330 F.3d at 412; accord United
States v. Heath, 624 F.3d 884, 888 (8th Cir. 2010); Dozier, 555
F.3d at 1140; United States v. Franklin, 148 F.3d 451, 461-62 (5th
Cir. 1998).
That ends this aspect of the matter. Because the
incarcerative terms imposed upon the revocation of the appellant's
probation are treated as part of his 2013 sentence, the court below
properly attributed three criminal history points to that
sentence. See USSG §4A1.1(a). And since it is undisputed that
the appellant was on probation at the time he committed the instant
offense, the district court's assessment of the two additional
points in computing his criminal history score was also correct.
See id. §4A1.1(d). It follows inexorably that neither the court's
assessment of a total of five criminal history points nor its
placement of the appellant in CHC III can seriously be questioned.
B
This brings us to the appellant's plaint — voiced for
the first time on appeal — that his upwardly variant 48-month
sentence was substantively unreasonable. Our standard of review
for unpreserved claims of substantive unreasonableness is
"somewhat blurred." United States v. Ruiz-Huertas, 792 F.3d 223,
228 (1st Cir. 2015). No attempt at clarification is needed here;
whatever the standard, the appellant's plaint is unavailing.
- 11 -
Appellate review for substantive reasonableness "focuses
on the duration of the sentence in light of the totality of the
circumstances." United States v. Vega-Salgado, 769 F.3d 100, 105
(1st Cir. 2014) (quoting United States v. Del Valle-Rodríguez, 761
F.3d 171, 176 (1st Cir. 2014)). To pass muster, a sentence must
be "supported by a 'plausible sentencing rationale' and achieve[]
a 'defensible result.'" United States v. Daoust, 888 F.3d 571,
577 (1st Cir. 2018) (quoting Martin, 520 F.3d at 96). We have
emphasized that "there can be a wide universe of reasonable
sentences in any single case." Id.; see United States v. Walker,
665 F.3d 212, 234 (1st Cir. 2011). As long as the sentence is
"within the universe of acceptable outcomes," we must uphold it.
United States v. Vargas-Dávila, 649 F.3d 129, 132 (1st Cir. 2011).
The fact that a sentence exceeds the advisory guideline range is
not dispositive, but "the greater the extent of a variance, 'the
more compelling the sentencing court's justification must be.'"
United States v. de Jesús, 831 F.3d 39, 43 (1st Cir. 2016) (quoting
Del Valle-Rodríguez, 761 F.3d at 177).
When viewed against this backdrop, the appellant's
sentence withstands scrutiny. After stating that it had considered
the relevant section 3553(a) factors — a statement that is entitled
to "some weight," United States v. Rodríguez-Adorno, 852 F.3d 168,
176 (1st Cir.), cert. denied, 138 S. Ct. 163 (2017) — the district
court explained why the case at hand was not a run-of-the-mill
- 12 -
felon-in-possession case. The court noted that the appellant,
while serving a probationary term, possessed a massive cache of
weapons and ammunition, three face masks, a black ski hat, and
other paraphernalia indicative of an intent to commit other crimes.
Mindful of these striking facts, the court reasonably concluded,
consistent with section 3553(a), that an above-the-range sentence
was necessary to reflect the crime's "seriousness," "promote
respect for the law," safeguard the public from future mischief at
the hands of the appellant, and further the goals of "deterrence
and punishment." Weighing these considerations, the court
determined that a 48-month term of immurement was sufficient — but
not greater than necessary — to serve the ends of justice.
The appellant demurs — but his demurrer is weak. He
chiefly faults the court for undervaluing certain factors (such as
his history of gainful employment and his acknowledgment of
wrongdoing). But the appellant's argument overlooks that the
choice as to which sentencing factor or factors should be stressed
in any specific case is largely a matter for the sentencing court.
See id. After all, a sentencing court is not required to "afford
each of the section 3553(a) factors equal prominence." United
States v. Dixon, 449 F.3d 194, 205 (1st Cir. 2006). Rather, the
court has broad discretion in determining how best to weigh those
factors. See de Jesús, 831 F.3d at 44. In this instance, the
- 13 -
sentencing court acted well within the encincture of that
discretion.
The appellant also faults the district court for
ignoring the parties' joint recommendation that the court impose
a within-guidelines sentence — a sentence that would not have
exceeded 37 months. We agree that when the prosecution and the
defense agree upon a sentencing recommendation, the sentencing
court should pay careful attention to that recommendation. Careful
attention, though, is not to be confused with blind allegiance.
In the end, judicial review of a sentence focuses "on the sentence
actually imposed, not on the relative merit of that sentence as
contrasted with a different sentence mutually agreed to by the
parties." Id. at 43. Here, the decisive consideration is that
the 48-month sentence imposed by the court below falls within the
wide universe of reasonable sentences.
To say more would be to paint the lily. In this case,
the district court articulated an entirely plausible rationale for
the sentence imposed and achieved a readily defensible result.
The challenged sentence is, therefore, substantively reasonable.
III. CONCLUSION
We need go no further. For the reasons elucidated above,
the sentence is
Affirmed.
- 14 -