United States v. Vick

Not for Publication in West's Federal Reporter
United States Court of Appeals
For the First Circuit
No. 20-1132
UNITED STATES,
Appellee,
v.
CHARLIE D. VICK,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF RHODE ISLAND
[Hon. William E. Smith, U.S. District Judge]
Before
Thompson, Boudin, and Barron,
Circuit Judges.
Edward J. Romano, Esq., on brief for appellant.
Aaron L. Weisman, United States Attorney, and Lauren S.
Zurier, Assistant United States Attorney, on brief for appellee.
April 13, 2021
BOUDIN, Circuit Judge. Charlie Vick pled guilty to
possessing ammunition, being a convicted felon,1 18 U.S.C.
§ 922(g)(1), and now appeals his sentence. Vick's Guidelines
Sentencing Range ("GSR") was twenty-one to twenty-seven months,
and the district court varied upward to impose a sentence of
thirty-six months in prison followed by three years of supervised
release. Vick's unpreserved complaints are reviewed for plain
error, United States v. Ortíz-Mercado, 919 F.3d 686, 689 (1st Cir.
2019), and his preserved complaints for abuse of discretion, see
United States v. García-Mojica, 955 F.3d 187, 192, 194 (1st Cir.
2020).
Vick first argues the sentencing judge gave too much
weight to his previous arrests that did not result in convictions.
Although a sentencing court may not rely on a defendant's mere
arrest record, United States v. Santa-Soler, 985 F.3d 93, 96 (1st
Cir. 2021) (citing United States v. Marrero-Pérez, 914 F.3d 20, 22
(1st Cir. 2019)), "[i]n certain perhaps rare cases [not present
here], a reasonable person might in particular circumstances
assign some weight to a collection of arrests." Marrero, 914 F.3d
at 22. At bottom, a sentencing court must not "equate arrest with
1 Vick had prior adult convictions for forgery of a check and
related charges, carrying a dangerous weapon, attempting to commit
a crime (breaking and entering), threatening to commit a crime
(kill), unlicensed operation of a motor vehicle, possession of a
large capacity weapon, and knowingly receiving stolen property.
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guilt." Id. at 23; see also United States v. Díaz-Rivera, 957
F.3d 20, 26-27 (1st Cir. 2020).
The district court noted all "three parts" of Vick's
long criminal history: convictions, arrests, and civil abuse
prevention orders. As of sentencing, Vick had at least seven
convictions, had been arrested twenty-eight times, had three
pending criminal cases, and had eight civil abuse prevention orders
issued against him. When discussing Vick's prior arrests, the
district court properly emphasized that "a lot" of arrests resulted
in dismissals and, unlike convictions, the arrests "can't count .
. . as criminal history" and "don't get points." Thus, the
district court made clear it "can't treat [arrests] like
convictions." Instead, the district court properly compared
Vick's arrest record to other sections of his presentence report
("PSR"), such as his employment history and family situation,
noting that each such aspect of Vick's circumstances helped "paint
a picture of the defendant." The district court concluded that
while arrests "are worth paying some attention to," it did not
"put the same weight on those that [it] put[s] on to the criminal
history where you receive convictions" because convictions "get a
lot more weight and . . . certain criminal history points."
While the district court's last statement regarding the
relative weight afforded to arrests would have been better left
unsaid, the court's reference does not show that it equated arrests
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with guilt. In ultimately announcing the decision to vary upwards,
the court focused on two aspects of Vick's conduct: "threatening,
assaultive, violent behavior" and "an obsession of some sort, with
firearms," which, in turn, motivated concerns for public safety
and recidivism. These insights were properly gleaned from the
full complement of reliable information available to the court,
including Vick's previous convictions and the circumstances of the
instant arrest. See Díaz-Rivera, 957 F.3d at 27-28.
Vick says that the sentencing judge gave too much weight
to his alleged involvement in a shootout the morning of his arrest.
Initially, Vick's PSR included a sentencing enhancement based on
the government's argument that Vick had been involved in a shooting
the morning he bought the ammunition. Later, the government
requested a sentencing enhancement because Vick had gone to a
shooting range after purchasing the ammunition and used a gun
there.2 The judge refused to apply an enhancement but concluded
that Vick likely bought the ammunition for violent purposes, saying
that "[s]omething's going on, and we don't know exactly what it
2 Both possessing ammunition and possessing a firearm are
criminal offenses if the possessor is a convicted felon. See 18
U.S.C. § 922(g)(1). The government's argument under both theories
relied on U.S.S.G § 2K2.1(b)(6)(B), which requires a sentencing
enhancement if the ammunition Vick bought was possessed in
connection with another offense. As Vick was a convicted felon,
possessing a firearm would violate 18 U.S.C. § 922(g)(1) and thus
would constitute another offense.
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is, but it says to me that there's a serious public safety risk
here with what you're up to."
The judge's inference was that when Vick bought
ammunition, he planned to use it to shoot a gun. This was a
reasonable inference based on Vick's history. See United States
v. Montañez-Quiñones, 911 F.3d 59, 67-68 (1st Cir. 2018).
Vick next argues that the district court's mention of
his previous convictions during the explanation of his sentence
was error because the convictions were already accounted for in
his GSR. See United States v. Zapete-Garcia, 447 F.3d 57, 60 (1st
Cir. 2006). Vick's convictions were indeed accounted for in his
GSR through the criminal history calculation, but the criminal
history calculation did not account for the pattern of violent
behavior and the "obsession" with firearms revealed by his
convictions.
Vick also argues the criminal history calculation
overrepresented the seriousness of his previous convictions
because he believes he received too many points for minor offenses.
Vick cites no authority for this attack, nor could he; there is no
error in using a correctly calculated GSR in sentencing. To the
extent Vick argues his criminal history was incorrectly
calculated, he waived this argument by failing to present any
support for his assertion. See, e.g., United States v. Tanco-
Pizarro, 892 F.3d 472, 483 n.7 (1st Cir. 2018).
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Vick additionally argues his sentence was unreasonably
long, but the sentence rested on a "plausible rationale" and
produced a "defensible result." United States v. Flores-
Machicote, 706 F.3d 16, 25 (1st Cir. 2013) (quoting United States
v. Martin, 520 F.3d 87, 96 (1st Cir. 2008)); see also 18 U.S.C. §§
3553(a)(1), (a)(2)(A)-(C).
Finally, Vick argues the district court "gave short
shrift" to other relevant sentencing factors such as his age,
physical health, substance abuse, social and family history,
education, and employment. But the weighing of relevant sentencing
factors "is largely within the court's informed discretion."
United States v. Santiago-Rivera, 744 F.3d 229, 232 (1st Cir. 2014)
(internal quotation marks and citation omitted). The record shows
the district court properly considered all the relevant sentencing
factors. See 18 U.S.C. § 3553(a). It specifically emphasized the
nature and circumstances of the offense, Vick's history and
characteristics, deterrence, and public protection. The court's
decision to focus on these factors over others "does not undermine
the 'significant weight' we afford a court's statements regarding
the factors and information it considered at sentencing." United
States v. Frederickson, No. 20-1033, 2021 WL 567440, at *11 (1st
Cir. Feb. 16, 2021) (quoting United States v. Márquez-García, 862
F.3d 143, 145 (1st Cir. 2017)).
Affirmed.
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