United States v. Diaz-Rivera

United States Court of Appeals
For the First Circuit
No. 18-1461
UNITED STATES OF AMERICA,
Appellee,
v.
HENRY DÍAZ-RIVERA,
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, Dyk,* and Thompson,
Circuit Judges.
Alex Omar Rosa-Ambert, on brief for appellant.
Antonio L. Pérez-Alonso, Assistant United States Attorney,
with whom W. Stephen Muldrow, United States Attorney, and
Mariana E. Bauzá-Almonte, Assistant United States Attorney, Chief,
Appellate Division, on brief for appellee.
April 20, 2020
* Of the Federal Circuit, sitting by designation.
TORRUELLA, Circuit Judge. Defendant-Appellant Henry
Díaz-Rivera ("Díaz") pled guilty to one count of possession with
intent to distribute cocaine, in violation of 21 U.S.C. § 841(a)(1)
and (b)(1)(C), and one count of using a firearm during and in
relation to a drug-trafficking crime, in violation of 18 U.S.C.
§ 924(c)(1)(A)(i). Díaz now challenges the procedural and
substantive reasonableness of his upwardly variant sentence.
After careful review, we affirm.
I. Background
Because Díaz pled guilty, we draw the relevant facts
from the change-of-plea colloquy, the unchallenged portions of the
Presentence Investigation Report ("PSR"), and the sentencing
hearing transcript. See United States v. Fernández-Santos, 856
F.3d 10, 14 n.1 (1st Cir. 2017).
A. Facts Surrounding the Offense
On March 24, 2017, Puerto Rico police officers who were
patrolling an area in Toa Alta, Puerto Rico observed a vehicle
parked on the side of the road. Upon approaching the vehicle, the
officers asked the driver -- later identified as Díaz -- for his
driver's license and car registration, which he refused to provide.
Díaz then attempted to drive away twice but was eventually stopped.
During the intervention, an officer noticed that Díaz was holding
a small, red-colored zip-lock baggie containing aluminum foil
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wrapping, which was later determined to contain heroin. When Díaz
exited the car, the responding officers saw that he was carrying
a firearm, and they arrested him. While searching Díaz incident
to the arrest, officers seized from his person a .40-caliber Glock
pistol and a magazine containing a total of ten rounds of
ammunition. Agents also seized: eighty-six small plastic bags
containing less than fifty grams of cocaine; five cellular phones;
$572 in cash; a ledger containing names and numbers; a selector
switch "chip" used to modify the Glock pistol to fire
automatically; forty-one rounds of .40-caliber ammunition; eight
rounds of 7.62-caliber ammunition; a part of a firearm and other
accessories described as a slide-back plate; 100 empty plastic
vials; four red empty aluminum wrappings; and two small empty
plastic zip-lock baggies.
B. Procedural History
On March 30, 2017, a federal grand jury sitting in the
District of Puerto Rico returned a six-count indictment charging
Díaz with possession with intent to distribute cocaine, in
violation of 21 U.S.C. § 841(a)(1) and (b)(1)(C) (Count One);
possession with intent to distribute heroin, in violation of
21 U.S.C. § 841(a)(1) and (b)(1)(C) (Count Two); carrying and
using a firearm during and in relation to a drug-trafficking crime,
in violation of 18 U.S.C. § 924(c)(1)(A)(i) (Count Three);
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carrying and using a machinegun during and in relation to a
drug-trafficking crime, in violation of 18 U.S.C. § 924(c)(1)
(B)(ii) (Count Four); possession of a machinegun, in violation of
18 U.S.C. § 922(o) (Count Five); and being a convicted felon in
possession of a firearm and ammunition, in violation of 18 U.S.C.
§ 922(g)(1) (Count Six). On July 11, 2017, Díaz pled guilty to
Counts One and Three.1 The plea agreement provided for a total
offense level of ten, but the parties did not stipulate as to
Díaz's criminal history category. The parties agreed to recommend
a sentence of imprisonment of one year for Count One to be served
consecutively to the sentence imposed for Count Three. With
respect to Count Three, which carries a statutory minimum term of
five years of imprisonment, see 18 U.S.C. § 924(c)(1)(A)(i), the
parties took into consideration that Counts Two, Four, Five, and
Six were going to be dismissed and thus agreed that Díaz would
recommend a sentence of no less than nine years of imprisonment
and the Government would recommend eleven years of imprisonment.
Díaz also agreed to waive his right of appeal if the district court
imposed a sentence of twelve years of imprisonment or less,2 and
1 The remaining counts were dismissed pursuant to the plea
agreement.
2 The parties agree that the waiver of appeal provision in the
plea agreement does not bar this appeal because the sentence
imposed was longer than the range to which they had agreed. See
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he acknowledged that the district court could, in its discretion,
impose any sentence within the statutory maximum for each offense.
For Count One, the final PSR, like the plea agreement,
calculated a total offense level of ten, which resulted from a
base offense level of twelve and a two-level decrease for
acceptance of responsibility. Díaz had two prior Puerto Rico
convictions: possession of an unlicensed firearm and illegal
possession of a firearm (a machinegun). Accordingly, the PSR
determined that he had a criminal history category of III, which
coupled with the total offense level of ten, yielded a guidelines
sentencing range ("GSR") of ten to sixteen months of imprisonment.
For Count Three, the PSR found that the guideline sentence was the
minimum term of imprisonment required by statute, which was five
years pursuant to 18 U.S.C. § 924(c)(1)(A)(i), and that the term
had to run consecutively to any other term imposed.
The PSR also listed ten arrests -- all in Puerto Rico -
- which did not lead to convictions.3 Two of those arrests related
to illegal drug possession, and two others related to the use
United States v. Fernández–Cabrera, 625 F.3d 48, 51 (1st Cir.
2010).
3 In fact, two of the arrests led to acquittals.
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and/or possession of a firearm.4 Additionally, the PSR described
Díaz's history of substance abuse, which spanned approximately
fourteen years and consisted of the use of marijuana, Percocet,
Xanax, and cocaine. Díaz filed several objections to the PSR,
most of which are not relevant to this appeal. Díaz initially
objected to the inclusion of some arrests for which there were no
available or translated documents that verified them, and he also
objected to some arrests as too "remote to the instant offense."
Díaz ultimately withdrew the objections at the sentencing hearing.
In his sentencing memorandum, Díaz acknowledged that he
"ha[d] been living for several years, including the day of the
arrest in the instant case, with the illness of addiction to
controlled substances, including heroin and cocaine, among
others." He similarly acknowledged that he had "previous
convictions at state level and arrests at state level." Díaz
4 The ten arrests were, in chronological order: a 2004 "threats"
arrest; a 2004 first-degree murder, firearm brandishing or firing,
and unlicensed firearm possession arrest (acquitted); a 2004
controlled substances possession arrest; a 2005 unlicensed firearm
possession and attempted first-degree murder arrest; a 2006
firearm brandishing or firing, unlawful ammunition possession,
unlicensed firearm possession, and attempted first-degree murder
arrest; a 2007 unlicensed firearm possession, attempted
first-degree murder, and first-degree murder arrest (acquitted);
a 2009 controlled substances arrest; a 2010 criminal contempt
arrest; a 2015 "conjugal threats" arrest; and a 2015 resistance or
obstruction of a public authority and mandatory auto insurance
violation arrest.
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requested a sentence of no more than 120 months of imprisonment,
which, in his view, was "sufficient and not more than necessary."
C. Sentencing
At the sentencing hearing, defense counsel re-emphasized
Díaz's battle with drug addiction and requested a total sentence
of 120 months of imprisonment. In accordance with the plea
agreement, the Government urged the district court to sentence
Díaz to a total of twelve years of imprisonment.
As to Count One, the district court adopted the PSR's
calculations of the total offense level, the criminal history
category, and the GSR (ten to sixteen months of imprisonment). As
to Count Three, the court noted that the guideline sentence was
the statutory minimum term of imprisonment of sixty months, to be
served consecutively to the term of imprisonment for Count One.
The court also pointed out that the firearm involved in the offense
had been modified to shoot automatically. It then listed Díaz's
prior arrests, reciting the PSR's explanation of their
disposition.
The court then stated that it had considered the
sentencing factors set forth in 18 U.S.C. § 3553(a) and referred
to Díaz's age, unemployment, and history of drug use. Afterwards,
it proceeded to list the items that were seized from Díaz.
Finally, after considering the nature of the charges that were
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dismissed pursuant to the plea agreement, the court sentenced Díaz
to an upwardly variant sentence of 180 months of imprisonment
(sixteen months for Count One and 164 months for Count Three).
The court explained that "[b]ecause of the seriousness of the
charges that ha[d] been dismissed against Mr. Díaz [under the plea
agreement],5 his extensive prior criminal record, and the need for
deterrence in Puerto Rico," the sentences the parties had requested
did not "reflect the seriousness of Mr. Díaz's offenses, d[id] not
promote respect for the law, d[id] not protect the public from
further crimes by Mr. Díaz, and d[id] not address the issues of
deterrence and punishment."
After the court pronounced the sentence, defense counsel
objected to it as procedurally and substantively unreasonable. He
elaborated that he objected to the "findings" and "analysis" of
United States v. Flores-Machicote, 706 F.3d 16 (1st Cir. 2013),
and asserted that "certainty of punishment ha[s] a deterrent
effect, but not the amount of time." He further asked the court
to reconsider its sentence, specifically requesting that it impose
the Government's requested sentence instead. He acknowledged that
Díaz had "a criminal history," referring to the Puerto Rico
5 The dismissed charges the district court referred to were Counts
Two, Four, Five, and Six of the indictment.
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arrests, and asserted that the fact that some of those cases had
not been re-filed after having been dismissed on probable cause or
speedy trial grounds "should not be taken against [Díaz]." The
court denied Díaz's request and confirmed that "one of the things
that [it] took into consideration" was the fact that the crimes
charged during Díaz's arrests were either dismissed or no probable
cause was found. Defense counsel again generally objected to the
sentence as both procedurally and substantively unreasonable.
This timely appeal followed.
II. Discussion
Díaz challenges both the procedural and substantive
reasonableness of his sentence. In sentencing appeals, appellate
review is bifurcated. United States v. Ruiz-Huertas, 792 F.3d
223, 226 (1st Cir. 2015). We must first examine claims of
procedural error, such as "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." United States v.
Bermúdez-Meléndez, 827 F.3d 160, 163 (1st Cir. 2016) (quoting Gall
v. United States, 552 U.S. 38, 51 (2007)). "If the sentence passes
procedural muster, we then examine any challenge to its substantive
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reasonableness." United States v. Miranda-Díaz, 942 F.3d 33, 39
(1st Cir. 2019). In making our determination, we "tak[e] account
of the totality of the circumstances," Ruiz-Huertas, 792 F.3d at
226, and keep in mind that "there is no single reasonable sentence
'but, rather, a universe of reasonable sentencing outcomes,'"
Miranda-Díaz, 942 F.3d at 42 (quoting United States v.
Vargas-García, 794 F.3d 162, 167 (1st Cir. 2015)). We also
"proceed on the understanding that it is not our task simply to
second-guess a sentencing court's considered decisions about
matters squarely within its discretion." Id. A sentence is
substantively reasonable if it has a "plausible sentencing
rationale" and it reaches a "defensible result." Id. (quoting
United States v. Martin, 520 F.3d 87, 96 (1st Cir. 2008)).
A. Procedural Reasonableness
Díaz first challenges the procedural reasonableness of
his sentence, arguing that, in fashioning the sentence, the
district court erroneously relied on his unadjudicated prior
arrests. He asserts that his upwardly variant sentence was based
on the court's "impression of the nonaction of the state court in
prosecuting [Díaz]" and on it "equating arrests quantity with
possibility of reci[divism]." In that sense, he posits, this
appeal is "no different" from that which led to our recent decision
in United States v. Marrero-Pérez, 914 F.3d 20 (1st Cir. 2019).
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According to Díaz, Marrero-Pérez stands for the proposition that
sentencing courts "may not factor unproven charges in their
Sentencing and Judgment without finding, by a preponderance of the
evidence, that the conduct underlying those charges took place."
Generally, we review procedural reasonableness
challenges under "a multifaceted abuse-of-discretion standard
whereby 'we afford de novo review to the sentencing court's
interpretation and application of the sentencing guidelines, assay
the court's factfinding for clear error, and evaluate its judgment
calls for abuse of discretion.'" United States v. Arsenault, 833
F.3d 24, 28 (1st Cir. 2016) (quoting Ruiz-Huertas, 792 F.3d at
226). When a defendant does not raise a procedural objection at
sentencing, however, we review for plain error. United States v.
Sosa-González, 900 F.3d 1, 4 (1st Cir. 2018) (citing United States
v. Reyes-Rivera, 812 F.3d 79, 85 (1st Cir. 2016)).
Díaz urges us to apply the abuse of discretion standard
because he "adequately objected to the sentence's
unreasonableness" below. The Government counters that Díaz waived
his claim on appeal because the objections he made to the prior
arrests are different from the arguments he presents on appeal.
And even if the claim is not waived, the Government argues that we
should review it for plain error because Díaz's objection was too
general.
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At the sentencing hearing, after the court imposed the
sentence, Díaz objected to it as both procedurally and
substantively unreasonable. With regards to the arrest record,
Díaz argued that the court should not hold against him the fact
that most of his Puerto Rico arrests had been dismissed and the
State had chosen not to re-file the cases. Díaz did not mention
Marrero-Pérez in his request for reconsideration below or
explicitly claim that the court could not rely on those arrests
because they did not result in convictions. Nevertheless, his
argument at the sentencing hearing was sufficient to at least bring
to the Government's attention the substance of the error he now
asserts the court committed. Based upon Díaz's argument, the
Government attempted to confirm the court's reasoning, stating the
following: "Based on our interpretation of the Court's sentencing
explanation, we understand that Your Honor is not taking notice of
the Defendant actually committing the crimes that were charged
during his arrests. That is our impression." The court responded
that "the fact that those crimes were either dismissed or no
probable cause was found [was] one of the things that [it] took
into consideration." Based on the record, the court seems to have
had the opportunity to rectify Díaz's claimed error, such that we
could find his challenge to be preserved. See United States v.
Soto-Soto, 855 F.3d 445, 448 n.1 (1st Cir. 2017). However, we do
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not dwell on this too long because Díaz does not prevail even under
the more favorable abuse-of-discretion standard.
Díaz's primary quarrel with the procedural
reasonableness of his sentence is that the district court
improperly relied on his history of prior arrests, which had not
been adjudicated, to impose an upward variance. Such reliance, he
contends, is prohibited under Marrero-Pérez.
In Marrero-Pérez, we reviewed under plain error an
upward departure imposed largely on the basis of prior arrests
that did not result in convictions and most of which were not
supported by reliable information that the underlying conduct had
actually occurred. 914 F.3d at 22-24. We held that "an error
occurs when a district judge relies on an arrest report, without
some greater indicia of reliability that the conduct underlying
the arrest took place." Id. at 24. As we recently recognized in
United States v. Colón-Maldonado, No. 18-1388, 2020 WL 1081661, at
*6 n.8 (1st Cir. March 6, 2020), the analysis in Marrero-Pérez
also relied on U.S.S.G. § 4A1.3, which states that "[a] prior
arrest record itself shall not be considered for purposes of an
upward departure under this policy statement." Id. (alteration in
original) (quoting § 4A1.3(a)(3)). Because of Marrero-Pérez's
reference to § 4A1.3, some of our decisions have suggested, without
squarely deciding, that Marrero-Pérez does not make it plain error
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to rely on bare arrest reports to impose an upward variance. See
id. (citing Miranda-Díaz, 942 F.3d at 40 (finding a defendant's
reliance on Marrero-Pérez to be mislaid, in part, because the
defendant's sentence involved an upward variance and not a
departure as in Marrero-Pérez) and United States v.
Rodríguez-Reyes, 925 F.3d 558, 564–65 (1st Cir. 2019)). In
Colón-Maldonado, however, we questioned whether the "departure-
variance distinction" would hold up "[i]f some future case turned
on it" and recognized that Marrero-Pérez "rest[s] on [the] basic
principle" that "a bare arrest or charge does not prove the
defendant committed the crime." Id.
Even if we assume that Marrero-Pérez applies both in the
upward variance and departure contexts, we find that Díaz's
reliance on that case is still inapposite. We merely decided there
that an error occurs when a sentencing court "equate[s] arrest
with guilt," Marrero-Pérez, 914 F.3d at 23, or when it "relies on
an arrest report, without some greater indicia of reliability that
the conduct underlying the arrest took place," id. at 24 (emphasis
added). The Court in Marrero-Pérez was more concerned with a
sentencing court's reliance on arrests alone and "other dubious
inferences" that may arise from that reliance. See id. at 23.
On the other hand, Marrero-Pérez does recognize that in
some cases "a reasonable person might . . . assign some weight to
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a collection of arrests," id. at 22, and that "serious prior crimes
and recidivist behavior" are "proper considerations at
sentencing," id. at 23 (citing 18 U.S.C. § 3553(a)(1)-(2)(C)).
Indeed, sentencing courts have the discretion to impose upward
variances where appropriate, as long as the courts do not incur in
one of the types of procedural error. "No limitation shall be
placed on the information concerning the background, character,
and conduct of a person convicted of an offense which a court of
the United States may receive and consider for the purpose of
imposing an appropriate sentence." 18 U.S.C. § 3661. That said,
a sentencing court "must take pains to base [its] sentencing
judgments upon reliable and accurate information." United States
v. Tavano, 12 F.3d 301, 305 (1st Cir. 1993). Thus, it may take
into account "any information that has sufficient indicia of
reliability." United States v. Díaz-Arroyo, 797 F.3d 125, 130 n.3
(1st Cir. 2015). In doing so, it has "wide discretion to decide
whether particular evidence is sufficiently reliable to be used at
sentencing." United States v. Cintrón-Echautegui, 604 F.3d 1, 6
(1st Cir. 2010).
Contrary to Díaz's contention, the record does not
suggest that the district court "equate[d] [his] arrest[s] with
guilt." Marrero-Pérez, 914 F.3d at 23. Nor does the record
reflect that the court relied solely on Díaz's arrests or placed
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undue weight on either the arrests themselves or their underlying
conduct. See id. at 24. The court simply recited the offenses
with which Díaz had been charged and the disposition of those
charges as that information appeared in the PSR. We have not
assigned error "in the district court's brief recitation of
procedural facts . . . adumbrated in the unchallenged [PSR],
notwithstanding that those facts related to a dismissed charge."
Miranda-Díaz, 942 F.3d at 41; see also Rodríguez-Reyes, 925 F.3d
at 563 ("To the extent [the defendant] is arguing that the court
errs in merely reciting an arrest record, he is flatly wrong."
(citing United States v. Mercer, 834 F.3d 39, 49-50 (1st Cir.
2016))). A sentencing court can indeed rely on the undisputed
information contained in the PSR at sentencing as "generally, a
PSR bears sufficient indicia of reliability."6 United States v.
Rondón-García, 886 F.3d 14, 25 (1st Cir. 2018) (quoting United
States v. Olivero, 552 F.3d 34, 40 (1st Cir. 2009)). "[N]othing
in our precedent forbids a sentencing court's mere mention of the
undisputed facts surrounding a dismissed charge as part of a
broader assessment of the defendant's troubling trajectory
6 While Díaz originally objected to the PSR's inclusion of arrests
when the documents verifying them were not available or translated
into English or because the arrests were too remote, he withdrew
the objections at sentencing.
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regarding his serial encounters with the criminal justice system."
Miranda-Díaz, 942 F.3d at 41.
Moreover, the court clarified that the disposition of
the crimes charged related to the arrests was "one of the things
that [it] took into consideration." It also considered Díaz's
personal characteristics -- that he was thirty-two years old, had
a seventh grade education, was unemployed, and had a history of
drug use; the nature of the instant offense, which included the
seizure of drugs, drug paraphernalia, cash, ammunition, and a
firearm modified to fire automatically; the counts being dismissed
as part of the plea agreement, which the court viewed as involving
serious charges; and his two prior convictions involving
violations similar to the instant offense of conviction
(unlicensed possession of a firearm and ammunition and illegal
possession of a firearm).7 Thus, we cannot discern from the record
that the court crafted an upwardly variant sentence based on its
reliance on, or by impermissibly assigning undue weight to, an
arrest record or the conduct that gave rise to it. Accordingly,
we find this part of Díaz's procedural unreasonableness challenge
unavailing.
7 Marrero-Pérez recognizes that a sentencing court can vary
upwardly on the basis of prior convictions. 914 F.3d at 24.
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Díaz also claims that the district court erred in failing
to consider "the correlation between [Díaz's] addiction and his
Criminal History" as a mitigating factor. Because Díaz did not
raise this argument below in objecting to the procedural
reasonableness of his sentence, we review his claim for plain
error. See Soto-Soto, 855 F.3d at 448. Under the plain error
standard, the defendant must show: "(1) that an error occurred
(2) which was clear or obvious and which not only (3) affected the
defendant's substantial rights, but also (4) seriously impaired
the fairness, integrity, or public reputation of judicial
proceedings." Rodríguez-Reyes, 925 F.3d at 563 (quoting United
States v. Duarte, 246 F.3d 56, 60 (1st Cir. 2001)). Díaz's claim
fails at the first step as his contention is belied by the record.
"Under § 3553(a)(1), a court determining a sentence is
required to consider 'the nature and circumstances of the offense
and the history and characteristics of the defendant,'" such as
drug addiction. United States v. Stile, 845 F.3d 425, 433 (1st
Cir. 2017) (quoting 18 U.S.C. § 3553(a)(1)). The district court
explicitly considered Díaz's history of drug abuse. It explained
at sentencing that it had considered, among other characteristics,
Díaz's "history of using marijuana and cocaine combined with Xanax
and Percocet." It then weighed those facts against the nature and
circumstances of the offense, which involved the seizure of drugs,
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drug paraphernalia, a modified firearm, and ammunition. The court
also considered the seriousness of the other charges in the
indictment, which the parties had agreed to dismiss pursuant to
the plea agreement, and the need to deter future crimes. The
court's decision to assign less weight to a mitigating factor than
Díaz thought it deserved is not an error, much less a plain error.
See United States v. Majeroni, 784 F.3d 72, 78 (1st Cir. 2015)
("That the sentencing court chose not to attach to certain of the
mitigating factors the significance that the appellant thinks they
deserved does not make the sentence unreasonable." (quoting United
States v. Clogston, 662 F.3d 588, 593 (1st Cir. 2011))). Indeed,
the district court had "the latitude to 'emphasize the nature of
the crime over the mitigating factors,' and such a 'choice of
emphasis . . . is not a basis for a founded claim of sentencing
error.'" United States v. Rivera-Clemente, 813 F.3d 43, 53 (1st
Cir. 2016) (alteration in original) (quoting United States v.
Ramos, 763 F.3d 45, 58 (1st Cir. 2014)). Finally, the fact that
the court recommended to Probation that Díaz "participate in the
500-hour drug treatment program that is offered by the Bureau of
Prisons" further refutes Díaz's allegation that the court ignored
his history of addiction. We discern no error by the district
court.
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B. Substantive Reasonableness
Finally, Díaz asserts that his 180-month sentence is
substantively unreasonable. We review this claim for abuse of
discretion as Díaz preserved it by objecting both after the court
pronounced the sentence and at the end of his sentencing hearing.
United States v. Vázquez-Martínez, 812 F.3d 18, 26 (1st Cir. 2016)
(citing United States v. Del Valle-Rodríguez, 761 F.3d 171, 176
(1st Cir. 2014)).
Díaz argues that the district court failed to consider
all mitigating circumstances and that it improperly weighed the
§ 3553(a) factors, specifically, his history of drug abuse. But
as we have already explained, the district court did consider
Díaz's substance abuse (and the § 3553(a) factors) in fashioning
his sentence and it recommended that he participate in a treatment
program during his incarceration. We have said before that "[t]he
relative weight of each [§ 3553(a)] factor will vary with the
idiosyncratic circumstances of each case." United States v. Dixon,
449 F.3d 194, 205 (1st Cir. 2006). We will not deem the sentence
unreasonable because Díaz disagrees with how the court weighed the
factors. See Clogston, 662 F.3d at 593; see also United States v.
Gibbons, 553 F.3d 40, 47 (1st Cir. 2009) ("We will not disturb a
well-reasoned decision to give greater weight to particular
sentencing factors over others.").
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Next, Díaz argues that the district court lacked a
plausible sentencing rationale for imposing the upward variance
because its reasoning was based, in part, on the incidence of crime
in Puerto Rico and not on Díaz's individual circumstances. He
avers that the district court imposed an upwardly variant sentence
because it found "the nonthreatening process at State level
. . . insufficient[ly] dissuasive." Díaz contends, consequently,
that the sentence was "a direct . . . critique on the Puerto Rico
Judicial system." We have held, however, that "the incidence of
particular crimes in the relevant community appropriately informs
and contextualizes the relevant need for deterrence" and, thus, a
sentencing court may consider "the incidence and trend lines of
particular types of crime in the affected community." United
States v. Flores-Machicote, 706 F.3d 16, 23 (1st Cir. 2013); see
also United States v. Rivera-González, 776 F.3d 45, 50–51
(1st Cir. 2015) (finding that the sentencing court appropriately
considered "the high incidence of violent crime in Puerto Rico").
Certainly, assessment of "community-based considerations" alone
does not relieve the sentencing court of its obligation to base
its sentencing determination on case- and offense-specific
factors. United States v. Ortiz-Rodríguez, 789 F.3d 15, 19–20
(1st Cir. 2015) (quoting Rivera-González, 776 F.3d at 50). And
indeed, the district court here did not base its sentence solely
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on Puerto Rico's crime rate. Rather, as we have explained, the
district court also made clear that it was taking into account all
of the § 3553(a) factors, Díaz's history and characteristics, the
mitigating factors Díaz proffered, the seriousness of the charges
against Díaz that were dismissed pursuant to the plea agreement,
Díaz's prior convictions and history of arrests, the "need for
deterrence," and the fact that the parties' proposed sentences did
not, in the court's view, "reflect the seriousness of Mr. Díaz's
offenses, . . . promote respect for the law, . . . protect the
public from further crimes by Mr. Díaz, and . . . address the
issues of deterrence and punishment." Moreover, Díaz's "repeated
return to criminal behavior despite earlier encounters with the
criminal justice system reflected an abject failure to renounce
criminality and amply justified an upwardly variant sentence."
Miranda-Díaz, 942 F.3d at 43. These considerations taken together
show that the rationale was tailored to the facts and circumstances
of the case and, thus, that the rationale was plausible.
To the extent Díaz argues that the sentence is
substantively unreasonable simply because the court varied
upwardly from the sentences the parties proposed in the plea
agreement and at sentencing, he is wrong. See United States v.
Ubiles-Rosario, 867 F.3d 277, 294 (1st Cir. 2017) (finding that
the district court is not bound by the parties' recommendations);
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Bermúdez-Meléndez, 827 F.3d at 165 (finding that the district court
does not need to explain why it rejected a parties' joint sentence
recommendation). The court's choice to impose a sentence other
than one recommended by the parties is not, in itself, error.
Finally, although Díaz seems to suggest that a lower
sentence would have been sufficient but not greater than necessary,
we have repeatedly held that, after the district court calculates
the GSR, "sentencing becomes a judgment call," United States v.
Politano, 522 F.3d 69, 73 (1st Cir. 2008) (quoting Martin, 520
F.3d at 92), and "[t]here is no one reasonable sentence in any
given case but, rather, a universe of reasonable sentencing
outcomes," Clogston, 662 F.3d at 592 (citing Martin, 520 F.3d at
92). In this case, where Díaz, who had been formerly convicted of
a felony, was found in possession of a dangerous weapon,
ammunition, and controlled substances, in only the latest
occurrence in a pattern of convictions involving firearms and
arrests involving both firearms and controlled substances, we
cannot say that the 180-month sentence imposed, though upwardly
variant, falls outside the "universe of sentencing outcomes," see
id. Our conclusion is strengthened by the fact that Díaz himself
initially agreed to (and requested) an upwardly variant sentence,
albeit of 120 months of imprisonment.
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In light of this and the sentencing court's explanation
of the sentence, we are satisfied that the court has articulated
a plausible sentencing rationale and arrived at a defensible
result, see Martin, 520 F.3d at 98. No more is required.
III. Conclusion
For the foregoing reasons, Díaz's sentence is affirmed.
Affirmed.
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