United States v. Merced-Garcia ( 2022 )

United States Court of Appeals
For the First Circuit
No. 19-2033
UNITED STATES OF AMERICA,
Appellee,
v.
LUIS MERCED-GARCÍA,
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,
Selya and Gelpí, Circuit Judges.
David Ramos Pagan on brief for appellant.
W. Stephen Muldrow, United States Attorney, Mariana E. Bauzá-
Almonte, Assistant United States Attorney, Chief, Appellate
Division, and Robert P. Coleman III, Assistant United States
Attorney, on brief for appellee.
January 25, 2022
SELYA, Circuit Judge. Defendant-appellant Luis Merced-
García was found in possession of a trove of guns, ammunition, and
drugs. The district court sentenced him to serve an eighteen-
month term of immurement on a drug-trafficking count and a
consecutive 144-month term of immurement on a firearms count. The
defendant appeals, arguing that his guilty plea is invalid because
the plea agreement lacked a particular signature and that his
sentence on the firearms count is both procedurally infirm and
substantively unreasonable. Concluding, as we do, that the
defendant's asseverational array lacks force, we affirm.
I
We briefly set the stage. Because this appeal "follows
a guilty plea, 'we glean the relevant facts from the change-of-
plea colloquy, the unchallenged portions of the presentence
investigation report (PSI Report), and the record of the
disposition hearing.'" United States v. Dávila-González, 595 F.3d
42, 45 (1st Cir. 2010) (quoting United States v. Vargas, 560 F.3d
45, 47 (1st Cir. 2009)).
On the heels of a search of a residence in which he was
staying and the discovery of a trove of guns, ammunition, and
drugs,1 a federal grand jury returned an indictment charging the
There is some indication in the record that one of the guns
1
was found in the defendant's automobile rather than in the
dwelling. Given the way in which the defendant has framed his
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defendant and a confederate with, inter alia, aiding and abetting
the possession of a firearm in furtherance of a drug-trafficking
crime, see 18 U.S.C. § 924(c)(1)(A), and aiding and abetting the
possession of cocaine with intent to distribute, see 21 U.S.C.
§ 841(a)(1). In due season, the defendant entered into a plea
agreement (the Agreement) and pleaded guilty to both of these
counts. The district court accepted his guilty plea and ordered
the preparation of a PSI Report.
The district court convened the disposition hearing on
September 19, 2019. Both sides had filed sentencing memoranda,
and the court acknowledged its familiarity with those memoranda
and with the contents of the PSI Report. The guideline sentencing
ranges for the two counts were separate, and neither range is
seriously disputed here.2 For the drug-trafficking count, the
range was eighteen to twenty-four months; for the firearms count,
the range was the statutory mandatory minimum — sixty months.
The defendant asked the court to impose sentences on
both counts at the "lower end" of the guidelines. The government
arguments, nothing turns on this disparity and, thus, we do not
pursue the point.
2 The guideline ranges were laid out in the PSI Report. At
sentencing, neither side objected to these ranges, and the district
court adopted them. Although the defendant claims in his brief —
in conclusory fashion — that the district court failed to follow
proper procedure in formulating the guideline ranges, that claim
is totally undeveloped. Consequently, we deem it waived. See
United States v. Zannino, 895 F.2d 1, 17 (1st Cir. 1990).
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recommended a twenty-four-month sentence on the drug-trafficking
count, to be followed by a 120-month sentence on the firearms
count. The district court sentenced the defendant to serve
eighteen months in prison on the drug-trafficking count, to be
followed by 144 months in prison on the firearms count. This
timely appeal ensued.
II
In this venue, the defendant assigns error in three main
respects. First, he claims that the lack of a particular signature
invalidated the Agreement and, thus, invalidated his guilty plea.
Second, he claims that his sentence on the firearms count is
procedurally flawed because, among other things, the district
court failed adequately to explain the sharp upward variance.
Third, he claims that his sentence on that count is substantively
unreasonable. We address these claims of error one by one.
A
To begin, the defendant argues that the Agreement — which
he signed — is nonetheless unenforceable because one section of
the Agreement, entitled "Stipulation of Facts," lacked his
signature (even though a signature line appeared at that point).
Because the defendant did not advance this argument below, our
review is for plain error. See United States v. Casiano-Santana,
1 F.4th 100, 101 (1st Cir. 2021); United States v. Duarte, 246
F.3d 56, 60 (1st Cir. 2001).
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We have made it clear that "[t]he plain error hurdle is
high." United States v. Hunnewell, 891 F.2d 955, 956 (1st Cir.
1989). To prevail on plain-error review, an appellant must
demonstrate "(1) that an error occurred (2) which was clear or
obvious and which not only (3) affected [his] substantial rights,
but also (4) seriously impaired the fairness, integrity, or public
reputation of judicial proceedings." Duarte, 246 F.3d at 60. As
the party claiming plain error, the appellant "must carry the
devoir of persuasion as to all four of these elements." United
States v. Pinkham, 896 F.3d 133, 136-37 (1st Cir. 2018).
Here, plain error is plainly absent. Although the
stipulation of facts contained a line for the defendant's
signature, there is no reason to believe that such a signature was
essential to the validity of the Agreement. After all, the
defendant signed the Agreement itself, and he identifies no
statute, rule, or case law requiring that a stipulation of facts,
incorporated in a plea agreement, must be separately signed. We
have left no doubt that to qualify as plain error, an "error must
be 'indisputable' in light of controlling law." United States v.
Rabb, 5 F.4th 95, 101 (1st Cir. 2021) (quoting United States v.
Jones, 748 F.3d 64, 70 (1st Cir. 2014)). Bereft of supporting
authority, the error claimed in this case cannot surmount that
high bar. See United States v. Griffin, 524 F.3d 71, 79 (1st Cir.
2008) (explaining that when an appellant "cites no case remotely
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suggesting that the rule is otherwise . . . there cannot be plain
error").
In all events, the defendant — in order to show plain
error — bore the burden of demonstrating that the alleged error
affected his substantial rights. See Rabb, 5 F.4th at 103. Here,
however, he has not made even a glimmer of a showing that the
unsigned stipulation of facts somehow prejudiced his case. For
one thing, both the defendant and his counsel signed the Agreement
itself, and the Agreement includes a clause indicating that the
stipulation of facts is incorporated into the Agreement. For
another thing, even though the defendant left blank the signature
line below the stipulation of facts, he nonetheless initialed both
pages of the Agreement on which the stipulation appears. In
addition, the defendant's counsel signed the stipulation of facts
on a separately provided signature line. And to cinch the matter,
the defendant — during the change-of-plea hearing — confirmed his
agreement with the government's oral presentation of the
stipulated facts. Any error attaching to the missing signature
could not, therefore, have affected the defendant's substantial
rights.
That ends this aspect of the matter. On the facts of
this case, the missing signature was a harmless oversight, and we
reject the defendant's belated claim that its absence invalidated
his guilty plea.
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B
This brings us to the defendant's claim that his upwardly
variant 144-month sentence on the firearms count is procedurally
unreasonable. This claim makes its debut in this court and, thus,
engenders only plain-error review. See Casiano-Santana, 1 F.4th
at 101; Duarte, 246 F.3d at 60.
As we have said, the guideline sentence for the firearms
count was sixty months. See United States v. Vargas-García, 794
F.3d 162, 166 (1st Cir. 2015) (explaining that "the statutory
mandatory minimum sentence is the guideline sentence"); see also
USSG §2K2.4(b). Refined to bare essence, the principal thrust of
the defendant's claim is that the district court did not adequately
explain the sharp upward variance. We disagree.
When imposing a variant sentence, a sentencing court
must "state in open court . . . the specific reason for the
imposition of a [variant] sentence." 18 U.S.C. § 3553(c)(2). That
explanation, though, need not "be precise to the point of
pedantry." United States v. Del Valle-Rodríguez, 761 F.3d 171,
177 (1st Cir. 2014). We have repeatedly stated "that the
sentencing court need only identify the main factors behind its
decision." Vargas-García, 794 F.3d at 166; see United States v.
González, 857 F.3d 46, 62 (1st Cir. 2017); United States v. Rivera-
Clemente, 813 F.3d 43, 52 (1st Cir. 2016).
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In the case at hand, the sentencing court explained that
an upwardly variant sentence was necessary to "reflect[] the
seriousness of the offense, promote[] respect for the law,
protect[] the public from further crimes by [the defendant], and
address[] the issues of deterrence and punishment." The court
noted that the defendant possessed what amounted to a small
arsenal: seven firearms and 1,616 rounds of ammunition. It
emphasized, moreover, that two of the firearms were machineguns
and vouchsafed that it "c[ould] conceive of few weapons that are
more dangerous than a machine gun."
The defendant denigrates this explanation, contending
that the factors the court relied on were "already accounted for
in the Guidelines." This contention is wide of the mark: it
overlooks that a sentencing court may rely on a factor already
considered in formulating the guideline sentence as long as the
court "articulate[s] specifically the reasons that this particular
defendant's situation is different from the ordinary situation
covered by the guidelines calculation." United States v. Zapete-
Garcia, 447 F.3d 57, 60 (1st Cir. 2006). The court below did
precisely that: the applicable statute and the associated
guideline provision contemplate the possession of only a single
firearm, see 18 U.S.C. § 924(c)(1); USSG §2K2.4, yet the court
noted that the defendant possessed seven firearms, including two
machineguns, and a large cache of ammunition. Because the
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additional firearms (including the machineguns) and the large
quantity of ammunition were not accounted for in the guideline
calculations, the sentencing court did not plainly err by relying
on them to justify the upwardly variant sentence.
There is another dimension to the defendant's plaint
that his sentence was infected by procedural error. He suggests
that the district court weighed "community considerations" too
heavily, giving unduly short shrift to his personal circumstances.
This suggestion is not accompanied by any developed argumentation
and is, therefore, waived. See United States v. Zannino, 895 F.2d
1, 17 (1st Cir. 1990). And at any rate, the record reveals that
the district court paid due heed to the defendant's circumstances
and to the circumstances of the offense. The mere fact of the
defendant's disagreement with the district court's balancing of
the various aggravating and mitigating factors does not constitute
a valid ground for appeal. See United States v. Ruperto-Rivera,
16 F.4th 1, 6 (1st Cir. 2021).
C
The defendant's last claim of error posits that his
upwardly variant 144-month sentence on the firearms count is
substantively unreasonable. That claim is deemed to be preserved,
see Holguin-Hernandez v. United States, 140 S. Ct. 762, 767 (2020),
so our review is for abuse of discretion, see United States v.
Bruno-Campos, 978 F.3d 801, 808 (1st Cir. 2020). We discern none.
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"In the sentencing context, 'reasonableness is a protean
concept.'" United States v. Clogston, 662 F.3d 588, 592 (1st Cir.
2011) (quoting United States v. Martin, 520 F.3d 87, 92 (1st Cir.
2008)). In any given case, "there is not a single reasonable
sentence but, rather, a range of reasonable sentences." Martin,
520 F.3d at 92. When faced with a complaint of substantive
unreasonableness, our role is "to determine whether the
[challenged] sentence falls within this broad universe." United
States v. Rivera-Morales, 961 F.3d 1, 21 (1st Cir. 2020). In this
endeavor, "we cannot substitute our judgment of the appropriate
sentence for that of the sentencing court; to the contrary, we
must accord significant deference to the court's informed
determination that the section 3553(a) factors justify the
sentence imposed." Id."[T]he hallmarks of a substantively reasonable sentence
are a plausible sentencing rationale and a defensible result."
United States v. Rodríguez-Cruz, 997 F.3d 362, 366 (1st Cir. 2021).
This remains true even where, as here, the sentence is an upwardly
variant one. See Rivera-Morales, 961 F.3d at 21.
In this case, the sentencing court lucidly articulated
its sentencing rationale. The court addressed the defendant's
age, dependents, education level, personal habits, prior
employment, lack of a criminal record, and kindred considerations.
It described the firearms and ammunition found in the defendant's
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possession, including the two machineguns. The court noted that
"[s]hort of bombs, missiles, and biochemical agents, [it] c[ould]
conceive of few weapons that are more dangerous than a machine
gun." Weighing all the pertinent facts and circumstances, the
court determined that a 144-month prison sentence was appropriate.
We find this rationale plausible.3
So, too, the challenged sentence achieves a defensible
result. The offense of conviction was serious: the defendant
possessed seven firearms — two of which were machineguns — and
1,616 rounds of ammunition. This armamentarium was made all the
more sinister by the defendant's simultaneous possession of a
significant inventory of drugs. Given the gravity of the offense
and the extent of the firepower that the defendant had assembled,
we cannot say that a 144-month term of imprisonment represented an
indefensible result.
To say more would be supererogatory. The firearms
sentence, though upwardly variant, was within the "broad universe"
of reasonable sentences. Id. It follows that the defendant's
claim of substantive unreasonableness goes begging.
3 We recently explained that "an adequate explanation for an
upward variance and a plausible rationale for that variance are
almost always two sides of the same coin." United States v. Valle-
Colón, 21 F.4th 44, 50 (1st Cir. 2021). This is such a case.
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III
We need go no further. For the reasons elucidated above,
the judgment of the district court is
Affirmed.
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