United States v. Ayala-Lugo ( 2021 )

United States Court of Appeals
For the First Circuit
Nos. 18-2107, 18-2207
UNITED STATES OF AMERICA,
Appellee,
v.
JOSHUA AYALA-LUGO,
Defendant, Appellant.
APPEALS FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Francisco A. Besosa, U.S. District Judge]
Before
Lynch and Barron,
Circuit Judges.*
Marie L. Cortés-Cortés on brief for appellant.
W. Stephen Muldrow, United States Attorney, Mariana E. Bauzá-
Almonte, Assistant United States Attorney, and Antonio L. Perez-
Alonso, Assistant United States Attorney, on brief for appellee.
April 29, 2021
* While this case was submitted to a panel that included Judge
Torruella, he did not participate in the issuance of the panel's
opinion. The remaining two panelists therefore issued the opinion
pursuant to 28 U.S.C. § 46(d).
LYNCH, Circuit Judge. On March 22, 2018, Joshua
Ayala-Lugo, a convicted felon on supervised release, pleaded
guilty to one count of illegally possessing a firearm in violation
of 18 U.S.C. § 922(g)(1). The district court sentenced him to a
within-guidelines sentence of forty-six months in prison for
violating § 922(g)(1) to be served consecutively with an eighteen-
month sentence for violating the terms of his supervised release.
Ayala-Lugo, arguing that both of these sentences were
substantively and procedurally unreasonable, appeals. We affirm.
I. Facts and Procedural History
In 2008, Ayala-Lugo pleaded guilty to conspiring to
possess various controlled substances with intent to distribute
them in violation of 21 U.S.C. §§ 846, 841(a)(1), (b)(1)(C),
(b)(2), and 860. On December 9, 2008, he was sentenced to ten
years' imprisonment to be followed by six years of supervised
release. He began his supervised release on July 19, 2017.
About four months after his supervised release began, on
November 15, 2017, Ayala-Lugo was arrested at a known drug point
in Cataño, Puerto Rico while possessing a firearm and seventy-five
rounds of ammunition. Two days later, on November 17, 2017,
Ayala-Lugo's probation officer notified the court that Ayala-Lugo
had violated the terms of his supervised release. On November 20,
2017, Ayala-Lugo was indicted by a grand jury for being a felon in
possession of a firearm in violation of § 922(g)(l).
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On March 22, 2018, Ayala-Lugo pleaded guilty to
violating § 922(g)(l) and the district court accepted his plea.
There was no plea agreement.
The court held a sentencing hearing on October 17, 2018.
It reviewed the probation officer's sentencing guidelines
calculations, which reflected a total offense level of nineteen
and a criminal history category of III, and stated that the officer
had correctly applied the guidelines. Based on these calculations,
the guidelines imprisonment range for Ayala-Lugo's § 922(g)(l)
violation was thirty-seven to forty-six months. Ayala-Lugo did
not object to this calculation.
At sentencing, Ayala-Lugo's counsel requested a below-
guidelines sentence of eighteen months. The government requested
a low-end guidelines sentence of thirty-seven months. In support
of his requested sentence, Ayala-Lugo's counsel presented a report
produced by Dr. Alexandra Ramos (the "Ramos Report") saying that
Ayala-Lugo has an intellectual disability. The Ramos Report was
produced shortly before sentencing and was not included in the
presentence investigation report ("PSR"), but at the sentencing
hearing the court ordered the probation officer to amend the PSR
to include it.1 Based on the report, Ayala-Lugo asked the court
1 The Ramos Report was created after Ayala-Lugo had
requested that his sentencing be delayed "in order to allow for
[a] psychological examination and submission of [a] defense
sentencing memorandum." The court granted this request, and the
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to consider, under U.S.S.G. § 5K2.13, a downward departure from
the guidelines range because of Ayala-Lugo's alleged diminished
capacity. The government contested this departure, arguing that
Ayala-Lugo had a consensual relationship with the same partner for
at least 15 years and had worked for over a year as a barber,
showing that he had "been operating and living a more or less
normal life." It also told the court that, in connection with his
2008 conviction, Ayala-Lugo had been "in charge of maintaining and
distributing narcotics at the drug point to the sellers" and "would
also collect the proceeds," showing that he had higher-level
responsibilities and "was the person that someone at a higher
position trusted." Ayala-Lugo also argued for a lower sentence
because "there is a sentencing disparity when you compare Puerto
Rico sentences with national sentences" and because other courts
are "disavow[ing] the guidelines and are pinning down sentences
that are lower than the guidelines." The court said that the
defense's sentencing memorandum "was very well written, very
thorough, and [that it was] certainly considering it."
Ramos Report was produced two weeks before sentencing occurred on
October 17, 2018. The PSR did not include it because the PSR was
prepared in April 2018. The court told Ayala-Lugo's counsel that
it was "going to include [the Ramos Report] in the [PSR]" and that
he had given "a very good explanation of what's in that report."
The government did not object to including the Ramos Report in the
PSR.
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After hearing both sentencing requests, the court
explained the factors leading to the calculation of Ayala-Lugo's
guidelines sentence. When discussing Ayala-Lugo's criminal
history, in addition to mentioning his past convictions, the court
stated without further comment that Ayala-Lugo had been
adjudicated as a juvenile and had been arrested in connection with
certain incidents that did not result in convictions. It then
stated that "a guideline sentence in this case is appropriate" and
sentenced Ayala-Lugo to forty-six months' imprisonment, the high
end of the guidelines range, to be followed by a three-year term
of supervised release. It said that in reaching its conclusion it
had considered the "sentencing factors set forth in [18 U.S.C.
§ 3553(a)], defense counsel's thorough argument, the government's
argument," and "the report from Dr. Ramos."
Ayala-Lugo's counsel objected to the sentence "on
substantive and procedural grounds, specifically the Court's
unwillingness to . . . give us the departure or variance based on
the diminished capacity." In response, the court stated that it
"spoke with the probation officer, and his original recommendation
[before seeing the Ramos Report] was above the guidelines. And it
was because of Dr. Ramos' report that he convinced me to give a
guideline sentence."
Immediately after the hearing described above, the court
sentenced Ayala-Lugo for violating the terms of his supervised
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release. Ayala-Lugo's counsel argued that the court should
consider that the § 922(g)(l) sentence "represents and includes an
enhancement for being on supervision" and requested that any
sentence based on the supervised release violation be served
concurrently with Ayala-Lugo's earlier sentence. The government
requested a midlevel guidelines sentence. The court stated that
the guidelines imprisonment range for this offense was four to ten
months, which Ayala-Lugo did not challenge, but that the "guideline
sentence does not reflect the seriousness of Mr. Ayala's breach of
trust and does not promote respect for the law." The court
explained that Ayala-Lugo "has demonstrated an inability to live
a law-abiding lifestyle, as evidenced by becoming involved in new
criminal conduct just four months after his supervised release
term commenced" and that "a guideline sentence does not protect
the public." It stated that pursuant to 18 U.S.C. § 3583(e)(3),
because Ayala-Lugo was on supervised release for a class A felony,
it could impose a sentence of not more than five years. It then
sentenced Ayala-Lugo to eighteen months' imprisonment for
violating the terms of his supervised release to be served
consecutively to the forty-six month sentence the court had imposed
earlier. Ayala-Lugo's attorney stated that "[t]he defense objects
to the Court's sentence on the violation of supervision as
procedurally and substantively unreasonable" but made no further
argument on this point.
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Ayala-Lugo timely appealed his sentence for violating 18
U.S.C. § 922(g)(l). He timely appealed his revocation sentence
after the district court granted his motion for an extension of
time to do so.
II. Analysis
Our review of a district court's sentence for
reasonableness has a procedural and substantive component. See
United States v. Politano, 522 F.3d 69, 72 (1st Cir. 2008). The
procedural inquiry asks whether the district court made any errors
like "failing to calculate (or improperly calculating) the
Guidelines range, treating the Guidelines as mandatory, failing to
consider the [18 U.S.C.] § 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." Id. (alteration in original) (quoting
Gall v. United States, 552 U.S. 38, 51 (2007)). If the sentence
is procedurally sound, we then consider the totality of the
circumstances to review its substantive reasonableness. Id. "[W]e
will vacate a procedurally correct sentence as substantively
unreasonable only if it lies 'outside the expansive boundaries'
that surround the 'universe' of reasonable sentences." United
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States v. Coombs, 857 F.3d 439, 452 (1st Cir. 2017) (quoting United
States v. Matos-de-Jesús, 856 F.3d 174, 180 (1st Cir. 2017)).
Generally, we review sentencing decisions for abuse of
discretion. See United States v. Arroyo-Maldonado, 791 F.3d 193,
197 (1st Cir. 2015). However, if "a defendant fails to preserve
an objection below, the plain error standard supplants the
customary standard of review." Id. (quoting United States v.
Fernández–Hernández, 652 F.3d 56, 71 (1st Cir. 2011)). To prevail
on plain error review, 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." Id. (quoting United States v. Medina–
Villegas, 700 F.3d 580, 583 (1st Cir. 2012)).
A. Ayala-Lugo's 18 U.S.C. § 922(g)(l) Sentence
Ayala-Lugo argues the court made three procedural errors
related to his § 922(g)(l) sentence. First, he argues the court
erred because it "made no findings concerning arguments for a
variance based on [Ayala-Lugo's] cognitive impairment" and chose
to "automatically apply the guidelines and impose a sentence in
the higher end" of the guidelines sentencing range. Because Ayala-
Lugo objected to the district court's decision not to reduce his
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sentence due to his alleged diminished capacity, we review that
argument for abuse of discretion.
The court said on multiple occasions that it considered
Ayala-Lugo's argument on this point. It described his counsel's
memorandum as "very thorough and very informative." The court
said that it chose not to apply an upward variance to Ayala-Lugo's
sentence because of the Ramos report detailing his diminished
capacity. It also explained that its guidelines sentence "protects
the public from further crimes by Mr. Ayala." Cf. U.S.S.G.
§ 5K2.13 (stating that a downward departure for diminished
capacity is not appropriate if the defendant's offense or criminal
history "indicate a need to protect the public"). The court did
not automatically apply a guidelines sentence and there was no
procedural error in refusing to grant a downward departure.
Ayala-Lugo's next two arguments are that the court
procedurally erred when it failed to explain why it rejected his
§ 3553(a)(6) sentencing disparity argument and when it allegedly
relied on his past arrests (which did not result in convictions)
at sentencing. Because he did not preserve these issues, we review
for plain error. Arroyo-Maldonado, 791 F.3d at 197.
As to the court's alleged failure to address
Ayala-Lugo's sentencing disparity argument, the court stated that
it considered all of the § 3553(a) factors, a statement that is
"entitled to significant weight." United States v. Santiago-
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Rivera, 744 F.3d 229, 233 (1st Cir. 2014). It "need not verbalize
its evaluation of each and every [§] 3553(a) factor." United
States v. Hassan-Saleh-Mohamad, 930 F.3d 1, 7 (1st Cir. 2019)
(alteration in original) (quoting United States v. Reyes-Rivera,
812 F.3d 79, 89 (1st Cir. 2016)). Further, the district court did
explain its rejection of the sentencing disparity argument. It
stated that how other districts handle sentencing is "up to them,"
that "[t]hey just think that in many cases it's appropriate to
sentence someone below the guidelines," and that "[m]aybe they
should start sentencing within the guidelines range, and [their]
large amount of offenses may go down, like they are going down
here." There was no plain procedural error.
As to Ayala-Lugo's arrests, the court merely recited
them at sentencing and noted that they did not result in
convictions. It did not rely on them in imposing its sentence, so
it did not err. See United States v. Rodríguez-Reyes, 925 F.3d
558, 563 (1st Cir. 2019); United States v. Mercer, 834 F.3d 39,
49–50 (1st Cir. 2016).
Ayala-Lugo's argument that his sentence was
substantively unreasonable also fails. His within-guidelines
sentence is presumptively reasonable and, to succeed, he "must
adduce fairly powerful mitigating reasons and persuade us that the
district court was unreasonable in balancing pros and cons."
United States v. Cortes-Medina, 819 F.3d 566, 572 (1st Cir. 2016)
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(quoting United States v. Clogston, 662 F.3d 588, 593 (1st Cir.
2011)). The district court explained that its guidelines sentence
was "appropriate taking into consideration everything the Court
has mentioned, Mr. Ayala's prior involvement with the criminal
justice system, the report from Dr. Ramos, [and] the information
contained in the pre-sentence investigation report." In
particular, it emphasized that Ayala-Lugo had committed a new crime
after being on supervised release for only four months. Because
the court gave a "plausible sentencing rationale and [reached] a
defensible result," its sentence is substantively reasonable.
United States v. Martin, 520 F.3d 87, 96 (1st Cir. 2008).
B. Ayala-Lugo's Supervised Release Violation Sentence
Next, Ayala-Lugo challenges the procedural and
substantive reasonableness of his supervised release violation
sentence.2 We apply plain error review, as Ayala-Lugo made only
"a general objection" to the reasonableness of his sentence, which
is "'not sufficient to give the district court notice of the
specific issue raised' on appeal." United States v. Hurley, 842
2 The government argues that Ayala-Lugo's appeal of this
sentence was untimely because he filed a notice of appeal forty-
one days after judgment was entered. See Fed. R. App. P.
4(b)(1)(A)(i); United States v. Gonzalez-Rodriguez, 777 F.3d 37,
40 (1st Cir. 2015). However, Ayala-Lugo sought and received an
extension of time from the district court to file a notice of
appeal, so his appeal was timely. See Fed. R. App. P. 4(b)(4).
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F.3d 170, 173 (1st Cir. 2016) (quoting United States v. Ríos–
Hernández, 645 F.3d 456, 462 (1st Cir. 2011)).
Ayala-Lugo argues that his revocation sentence was
procedurally unreasonable because the court did not consider his
argument "that the underlying offense was already accounted for in
the guidelines calculations" or his recommendation "that the
[revocation] sentence be concurrent with the sentence imposed for
the underlying offense" (emphasis omitted). But the court did
consider and reject that argument and recommendation at
sentencing. It said it was not persuaded because the fact that
his § 922(g)(l) guidelines sentence was enhanced because he was on
supervised release "happens in every case." See Coombs, 857 F.3d
at 451 ("[T]here is no legal impediment in sentencing the defendant
both as a criminal and as a supervised release violator.").
His sentence was also substantively reasonable. The
court explained that it had considered the factors in 18 U.S.C.
§ 3553(a) and the guidelines calculation. It emphasized that
Ayala-Lugo had committed a new crime only four months after his
supervised release term began, demonstrating "an inability to live
a law-abiding lifestyle." It reasoned that because a guidelines
sentence "does not reflect the seriousness of Mr. Ayala's breach
of trust[,] does not promote respect for the law," and "does not
protect the public from further crimes by Mr. Ayala," an 18-month
sentence was appropriate. That sentence was well below the five-
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year statutory maximum applicable here. See 18 U.S.C.
§ 3583(e)(3). The court's reasoning was plausible, and it reached
a defensible result. See Martin, 520 F.3d at 96.
III. Conclusion
Affirmed.
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