United States v. Medina-Flores ( 2022 )

Not for Publication in West's Federal Reporter
United States Court of Appeals
For the First Circuit
No. 19-1814
UNITED STATES OF AMERICA,
Appellee,
v.
JEAN CARLOS MEDINA-FLORES, a/k/a Yankee,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Pedro A. Delgado-Hernández, U.S. District Judge]
Before
Lynch and Barron,
Circuit Judges.
Rafael F. Castro Lang on brief for appellant.
W. Stephen Muldrow, United States Attorney, Mariana E. Bauzá-
Almonte, Assistant United States Attorney, Chief, Appellate
Division, Francisco A. Besosa-Martinez, Assistant United States
Attorney, on brief for appellee.
February 9, 2022
 While this case was submitted to a panel that included
Judge Boudin, he did not participate in the issuance of the panel's
decision. The remaining two panelists therefore issued the
decision pursuant to 28 U.S.C. § 46(d).
Per Curiam. On March 20, 2017, Jean Carlos Medina-
Flores walked into a gas station with a loaded firearm. A
security guard, noticing the weapon, asked if Medina-Flores had a
license to carry the gun. Medina-Flores said no. After a brief
struggle, he was arrested and the gun was seized. He also tested
positive for marijuana. At the time of his arrest, Medina-Flores
was less than one year into a ten-year term of supervised release,
and his probation officer notified the court of three violations
to his supervised release conditions: committing the crime of
possessing a firearm as a felon and violating two controlled-
substance-related provisions.
Medina-Flores admitted to the violations and separately
pleaded guilty to a felon in possession charge. The United States
Sentencing Guidelines yielded a recommendation that the court
should revoke Medina-Flores' release and impose an 8-14 month
prison term for his violations, U.S.S.G. §7B1.4(a), but the
sentencing judge revoked his release and sentenced him to 28 months
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in prison and a term of supervised release.1 Medina-Flores appeals
that sentence.2
A sentencing court's decision to modify or revoke a term
of supervised release "should focus on punishing the 'breach of
trust' that the violation represents, 'while taking into account,
to a limited degree, the seriousness of the underlying violation
and the criminal history of the violator.'" United States v.
Vixamar, 679 F.3d 22, 32 (1st Cir. 2012) (quoting U.S.S.G. ch. 7,
pt. A, intro. cmt. 3(b)). 18 U.S.C. § 3583(e) instructs a
sentencing court to modify or revoke a term of supervised release
according to enumerated factors, including:
the nature and circumstances of the offense; the history
and characteristics of the offender; the need for
adequate deterrence; the need to protect the public; and
the penological needs of the offender, such as the need
for special care or treatment. While the court must
consider all of the incorporated section 3553(a)factors,
it need not do so mechanically.
1 The appellant asserts in his briefing to us that he
received a supervised release term of 5 months at his revocation
hearing. To support that assertion, he cites to the entry on the
"Judgment in a Criminal Case" which provides for a supervised
release term of "Five (5) months." The government's briefing in
this case does not mention the term of supervised release.
However, the transcript of the revocation hearing indicates that
the sentencing court imposed a supervised release term of five
years and the entry on the docket that links to the document titled
"Judgment in a Criminal Case" states that the term of supervised
release is five years.
2 This is an appeal after remand. See United States v.
Medina-Flores, No. 17-1820 (unpub. judgment 4/24/19).
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United States v. Vargas-Davila, 649 F.3d 129, 131 (1st Cir. 2011)
(internal citations omitted).
Medina-Flores argues the court improperly considered the
seriousness of the offense, a § 3553(a) factor that is not
incorporated into § 3583(e). In this circuit, however, courts may
consider non-incorporated § 3553(a) factors if pertinent. Id. at
132; see also United States v. Tanco-Pizarro, 892 F.3d 472, 480-
81 (1st Cir. 2018).
Next, Medina-Flores contends that the sentencing court
failed to take into account that he was already being punished for
the felon-in-possession charge through a separate case and that
that failure amounts to reversible error. But the judge
explicitly recognized that Medina-Flores had pleaded guilty to
possessing a weapon as a felon and was awaiting a sentence on that
count from a different court.
Similarly, Medina-Flores argues that his sentence was
not aimed at punishing his breach of trust but rather penalizing
him for the underlying conduct.3 "We glean the sentencing court's
rationale from the transcript of the sentencing hearing, see 18
U.S.C. § 3553(c), the court's written statement of reasons, id. §
3553(c)(2), and an examination of the points argued by the parties
3Medina-Flores relies on Dean v. United States, 137 S.Ct.
1170, 1175 (2017) to argue that his sentence should be no greater
than necessary to punish his breach of trust. Although Dean is
inapposite, we address his broader argument.
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(including those memorialized in the presentence investigation
report)[,]" Vargas-Davila, 649 F.3d at 130, and those sources
belie Medina-Flores' claim. The court specifically noted that the
violations represented Medina-Flores' third gun-related
conviction, that the firearm in question had been reported stolen,
and that he also had tested positive for a controlled substance.
Additionally, prior to pronouncing its sentence, the court heard
a substantial discussion regarding Medina-Flores' two previous
arrests while on bond. The nature of Medina-Flores' breach and
his history, see Vixamar, 679 F.3d at 32 n.7, shows that the court
imposed a sentence that was not greater than necessary to address
Medina-Flores' violations.
Although Medina-Flores disagrees, the sentencing court's
explanation, which considered the factors required by § 3583(e)
and weighed them appropriately, also served to justify the court's
upward variance from the guideline sentencing range. See United
States v. Sayer, 916 F.3d 32, 38 (1st Cir. 2019). And to the
extent Medina-Flores argues that the sentence was substantively
unreasonable, that contention also fails: given Medina-Flores'
history of weapons-related crimes, the court fashioned a sentence
that was "well within the universe of reasonable sentences."
Vargas-Davila, 649 F.3d at 131.
Finally, Medina-Flores takes issue with the court's
treatment of his positive drug test, asserting that the court
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impermissibly relied on it to increase his sentence when the terms
of his supervised release only permitted the judge to direct him
to complete a drug treatment program after his first positive drug
test. However, nothing in the supervised release terms indicates
the drug treatment was an exclusive punishment. Even if Medina-
Flores' reading of the special condition were correct, the
sentencing court still had the obligation to measure the "extent
of the breach of trust" committed in evaluating whether to modify
or revoke a term of supervised release, United States v. Bohan,
496 F. App'x 95, 96-97 (1st Cir. 2012) (quoting U.S.S.G. ch. 7,
pt. A, intro. cmt. 3(b)), rather than weighing each violation
piecemeal. Therefore, even assuming Medina-Flores' special
condition states that a sole positive marijuana test should be
handled only by drug treatment, that violation in combination with
others represents a wider breach that falls outside the condition's
instruction.
Medina-Flores' sentence is affirmed, but because Medina-
Flores' counsel complains that the statement of reasons was not
provided, the case is remanded to provide counsel with access to
the statement of reasons. See generally United States v. Morales-
Negron, 974 F.3d 63 (1st Cir. 2020).
It is so ordered.
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