United States v. Gonzalez-Andino ( 2023 )

United States Court of Appeals
For the First Circuit
No. 18-2155
UNITED STATES OF AMERICA,
Appellee,
v.
JOSHUA GONZÁLEZ-ANDINO,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Francisco A. Besosa, U.S. District Judge]
Before
Kayatta, Howard, and Gelpí,
Circuit Judges.
German A. Rieckehoff for appellant.
Julia M. Meconiates, Assistant United States Attorney, with
whom W. Stephen Muldrow, United States Attorney, and Mariana E.
Bauzá-Almonte, Assistant United States Attorney, were on brief,
for appellee.
January 26, 2023
HOWARD, Circuit Judge. Joshua González-Andino
challenges the district court's imposition of a 78-month term of
imprisonment after he pleaded guilty to possession with intent to
distribute marijuana, in violation of 21 U.S.C. § 841(a)(1), and
possession of firearms in furtherance of a drug trafficking crime,
in violation of 18 U.S.C. § 924(c). We affirm the sentence,
finding that González failed to preserve the arguments he presents
on appeal and that the district court committed no plain sentencing
error.
I.
We briefly summarize the factual background and
procedural history of González's case. "Because [González
pleaded] 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." United States v. Díaz-Rivera, 957 F.3d 20, 22 (1st
Cir. 2020). Puerto Rico police officers arrested González and
three other individuals in an apartment at a public housing complex
in Manatí after they found multiple types of drugs, guns,
ammunition, paraphernalia, and cash while executing a search
warrant. A federal grand jury indicted the codefendants on four
counts of possession with intent to distribute controlled
substances and one count of possession of firearms in furtherance
of a drug trafficking crime. As noted above, González later
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pleaded guilty to two of the five counts. Most relevantly to this
appeal, the plea agreement that González reached with the
government stipulated the sentence that each party would propose
to the district court. For the firearm possession in furtherance
of drug trafficking count, González and the government agreed to
recommend the statutory minimum sentence of 60 months of
imprisonment. For the possession with intent to distribute count,
González and the government agreed that they would separately
recommend sentences of zero and six months of imprisonment,
respectively. González also agreed to waive his appeal rights if
the district court sentenced him to no more than a total of 66
months of imprisonment for both counts.
The crux of this appeal lies in the discrepancy between
the drug quantities specified in the plea agreement and the PSR.
In his plea agreement, González acknowledged that he possessed
with the intent to distribute 87.23 grams of marijuana. However,
the PSR calculated his Sentencing Guidelines range based on a
converted quantity of 39.2 kilograms of marijuana, which was the
equivalent of all the various drugs seized from the apartment in
which González and his three codefendants were arrested. The
district court adopted the PSR's drug quantity in sentencing
González to a total of 78 months of imprisonment, including 18
months for the drug possession count. While this sentence fell
within the Guidelines range calculated in the PSR, it exceeded the
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sentencing cap provided in the plea agreement. Thus, the appeal-
waiver provision did not vest, and González's petition to us
followed.
II.
González argues that the sentence imposed by the
district court was procedurally unreasonable, and that the court
erred by (1) failing to explicitly tie his conduct to the amount
of drugs cited in the PSR and (2) relying on the PSR's drug quantity
figure when this figure was not supported by the evidence. But he
advanced neither of these arguments with sufficient particularity
before the district court so as to preserve them. It is well-
settled in this court that "[t]o preserve a claim of error for
appellate review, an objection must be sufficiently specific to
call the district court's attention to the asserted error." United
States v. Soto-Soto, 855 F.3d 445, 448 n.1 (1st Cir. 2017).
"[L]egal arguments cannot be interchanged at will" on appeal,
United States v. Ríos-Hernández, 645 F.3d 456, 462 (1st Cir. 2011)
(citing United States v. Lilly, 13 F.3d 15, 17-18 & n.6 (1st Cir.
1994)), and an objection that "d[oes] not allude to, or even
mention, the specific claim of error" that the defendant proffers
on appeal will not suffice, United States v. Matos-de-Jesús, 856
F.3d 174, 177 (1st Cir. 2017).
González did not present to the district court the
arguments that he now advances before us. He did not object to
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the PSR's findings, despite having had two opportunities to do so.
Cf. United States v. Orsini, 907 F.3d 115, 120 (1st Cir. 2018)
("[A] defendant who 'accepts the probation department's
configuration of the sentencing record . . . can scarcely be heard
to complain when the sentencing court uses those facts in making
its findings.'" (quoting United States v. Turbides-Leonardo, 468
F.3d 34, 38 (1st Cir. 2006))). And, while he did tell the district
court immediately after sentencing that he "must object to the
inclusion of the drugs," since he "only pled to the marijuana found
in the apartment," we are hard-pressed to conclude that this
general statement alone alerted the district court to specific
arguments about the PSR drug quantity's ostensible evidentiary
infirmity or that the court should have made an individualized
finding linking the drug amount to González's conduct.1 We have
routinely deemed arguments like González's forfeited when the
underlying record evinced only generalized objections or those
made on notably different bases than the defendant's subsequent
appellate arguments. See, e.g., Soto-Soto, 855 F.3d at 448, 448
1 During sentencing, the district court incorrectly stated
that González was "convicted of possession of at least 20 but less
than 40 kilograms of marijuana, after the other controlled
substances were converted into marijuana for sentencing purposes."
González's objection that he "only pled to the marijuana found in
the apartment" would have preserved a procedural challenge based
upon the court's misstatement. But González does not argue on
appeal that the district court erroneously relied upon the higher
drug quantity due to a mistaken belief that he had pleaded to that
quantity.
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n.1 (noting that the defendant's argument that his sentence was
"procedurally . . . unreasonable" did not preserve his argument on
appeal that the district court committed procedural error when it
allegedly mischaracterized the case history); Ríos-Hernández, 645
F.3d at 462 (concluding that the defendant's argument to the
district court was "sufficiently different" from his appellate
argument so as to be forfeited). González does not make any
attempt in his principal brief to persuade us that we should treat
his objections differently, and he did not file a reply brief in
response to the government's forfeiture argument.
III.
We review unpreserved arguments for plain error. "[T]he
plain error hurdle is high." United States v. Merced-García, 24
F.4th 76, 79 (1st Cir. 2022) (quoting United States v. Hunnewell,
891 F.2d 955, 956 (1st Cir. 1989)). Under this standard, González
must show "(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." Id. at 79-80 (alteration in
original) (quoting United States v. Duarte, 246 F.3d 56, 60 (1st
Cir. 2001)).
As an initial matter, González waived his arguments on
appeal by "not even attempt[ing] to meet his four-part burden for
forfeited claims" under the plain-error standard. United States
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v. Pabon, 819 F.3d 26, 33 (1st Cir. 2016). The district court, in
any event, committed no clear or obvious error with respect to
either one of González's claims. Both of his claims implicate the
district court's application of our case law interpreting
"relevant conduct" under U.S.S.G. §1B1.3 in the context of drug-
quantity attributions; or, more specifically, the contention that
"[i]f the sentencing court finds by a preponderance of the evidence
that a defendant engaged in the 'same course of conduct or common
scheme or plan' involving additional drugs, it can attribute the
amount of those drugs involved to the defendant." United States
v. McDonald, 804 F.3d 497, 502-503 (1st Cir. 2015) (citation
omitted) (quoting U.S.S.G. §1B1.3(a)(2)). A district court's
attribution of drugs to a defendant under §1B1.3 "is entitled to
considerable deference." Id. (quoting United States v. Wood, 924
F.2d 399, 403 (1st Cir. 1991)).
A.
González claims that the evidence does not support a
common scheme such that the district court could properly attribute
the larger PSR drug quantity to him because "[t]here was no
evidence that he was part of a larger drug enterprise" and "[t]here
was no evidence that the drugs were his or that they belonged to
anyone with whom he was in business." The plain-error bar for
challenging a district court's factual findings is especially
high: "[I]f an error pressed by the appellant turns on 'a factual
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finding [he] neglected to ask the district court to make, the error
cannot be clear or obvious unless' he shows that 'the desired
factual finding is the only one rationally supported by the record
below.'" United States v. Takesian, 945 F.3d 553, 563 (1st Cir.
2019) (alterations in original) (quoting United States v. Olivier-
Diaz, 13 F.3d 1, 5 (1st Cir. 1993)).
That is far from being the case here, since González's
arguments are belied by his own statements to the district court.
In arguing that the district court should factor in his drug
addiction at sentencing, he stated that "[t]he record clearly
reflects that the apartment in which the search warrant was
executed was being used as a stash house" and -- by way of
explaining his presence in the apartment -- that "[g]oing to the
apartment would probably allow him to consume drugs if these were
available, in exchange for him acting as a lookout or guard while
the occupants rested in the adjacent rooms." It is difficult to
reconcile González's argument to us that there was no evidence
suggesting that he was involved in a larger criminal enterprise
with his explicit statement to the district court that he was
likely in the apartment in order to perform services for exactly
such an enterprise.
The existence of a common scheme is further underscored
by the fact that, according to the PSR -- to which, as noted above,
González did not object -- local police located two loaded guns,
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a brown bag filled with three types of drugs and associated
paraphernalia, and $820 in cash in the room in which police found
González. The police search of other rooms in the same apartment
yielded more drugs, paraphernalia, cash, and ammunition. All of
these items suggest the existence of a larger drug trafficking
enterprise. Cf. United States v. Marin, 523 F.3d 24, 28 (1st Cir.
2008) (noting that a weapon, ammunition, drugs, paraphernalia, and
cash all being stored in the same house was indicative of broader
drug trafficking activity). We therefore find that the district
court's imputation of all the drugs found in the apartment to
González did not constitute clear or obvious error.
B.
González also contends that the district court erred in
not making a specific finding at sentencing that linked the total
amount of drugs found in the apartment to either his personal
conduct or conduct that was foreseeable to him. But González
overlooks the fact that the court mentioned that he was "arrested
along with three other individuals" shortly before it described
the items found in González's vicinity, which clearly implies that
the court factored in both the individual items police found in
the apartment and the general context of his arrest in attributing
to him the total amount seized. While "it would have been a better
practice for the court to state its [drug-quantity attribution]
finding explicitly," our precedent does not mandate a more
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detailed, sua sponte statement of reasoning than what the district
court proffered in the context of a PSR replete with unobjected-
to details of a common enterprise. United States v. Millán-
Machuca, 991 F.3d 7, 30-31, 31 n.13 (1st Cir. 2021) (upholding a
district court's drug-attribution finding on plain-error review
when "[t]he district court did not state [its drug-attribution
finding] explicitly" but there was ample support for it in the
record and the "finding [was] unmistakable in the court's
explanation of its sentencing decision"); cf. United States v.
Díaz-Lugo, 963 F.3d 145, 156 (1st Cir. 2020) ("[W]here the record
permits a reviewing court to identify both a discrete aspect of an
offender's conduct and a connection between that behavior and the
aims of sentencing, the sentence is sufficiently explained to pass
muster." (quoting United States v. Sepúlveda-Hernández, 817 F.3d
30, 33 (1st Cir. 2016))).
González's case is also markedly different from those in
which we have found that a district court proffered an inadequate
explanation for its drug-quantity attribution: The court did more
than simply recite the "threshold quantities" under the Sentencing
Guidelines without further elaboration, United States v. Vázquez-
Larrauri, 778 F.3d 276, 291 (1st Cir. 2015), and it did not rely
on a years-long, conspiracy-wide amount untethered from González's
conduct, see United States v. González-Vélez, 466 F.3d 27, 31, 34,
38 (1st Cir. 2006), given that the PSR explicitly linked the amount
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to the quantity found in the apartment in which González was
arrested. We thus discern no clear or obvious error with respect
to the district court's drug-attribution finding.
Affirmed.
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