United States v. Suarez-Gonzalez , 760 F.3d 96 ( 2014 )

United States Court of Appeals
For the First Circuit
Nos. 13-1594
13-1597
UNITED STATES OF AMERICA,
Appellee,
v.
JOE L. SUÁREZ-GONZÁLEZ, a/k/a JOEY,
Defendant, Appellant.
APPEALS FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Francisco A. Besosa, U.S. District Judge]
Before
Torruella, Selya and Lipez,
Circuit Judges.
Guillermo A. Macari-Grillo on brief for appellant.
Rosa Emilia Rodríguez-Vélez, United States Attorney, Nelson
Pérez-Sosa, Assistant United States Attorney, Chief, Appellate
Division, and Thomas F. Klumper, Assistant United States Attorney,
on brief for appellee.
July 23, 2014
SELYA, Circuit Judge. Defendant-appellant Joe L. Suárez-
González pleaded guilty to an array of counts, spread over two
separate indictments, involving the theft and/or conversion of
postal money orders from the United States Postal Service (USPS).
The district court sentenced him to serve twenty-one months in
prison. The appellant challenges the procedural and substantive
reasonableness of his sentence. The first of these challenges
presents a question of first impression with respect to the
interpretation of a guideline enhancement provision, USSG
§2B5.1(b)(2)(A). Finding both his procedural and substantive
challenges unavailing, we affirm.
I. BACKGROUND
Because these appeals trail in the wake of guilty pleas,
we glean the facts from the plea agreements, the change-of-plea
colloquy, the uncontested portions of the presentence investigation
report (PSI Report), and the transcript of the disposition hearing.
See United States v. Nguyen, 618 F.3d 72, 73 (1st Cir. 2010).
In the fall of 2011, the appellant was employed as a
construction worker in connection with the remodeling of a postal
station in San Juan, Puerto Rico (the Facility). While toiling
there, he stole and cashed four USPS money orders. He then filched
a key to the Facility and gave it to a confederate (Santiago Peña).
Using this key, Peña surreptitiously entered the Facility and,
acting on the appellant's instructions, printed 126 bogus USPS
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money orders. The pair later arranged for others to go to post
offices in the area and cash the money orders.
This scheme unraveled after postal inspectors received a
tip about an attempt to redeem a suspicious money order. The
ensuing investigation produced two indictments. After initially
maintaining his innocence, the appellant elected to plead guilty to
126 counts, spread over both indictments, of aiding and abetting
others in stealing or knowingly converting postal money orders.
See 18 U.S.C. §§ 2, 500.
The plea agreement referable to the first of the two
indictments suggested some preliminary guideline calculations: a
base offense level of nine, see USSG §2B5.1(a); a four-level
enhancement for loss in excess of $10,000 but not more than
$30,000, see id. §2B5.1(b)(1)(B); and a two-level reduction for
acceptance of responsibility, see id. §3E1.1(a). If the
appellant's criminal history score placed him in criminal history
category (CHC) I, the guideline sentencing range (GSR) was
estimated to be eight to fourteen months.
The plea agreement referable to the second indictment
also suggested a series of preliminary guideline calculations: a
base offense level of nine, see id. §2B5.1(a); a six-level
enhancement for loss in excess of $30,000 but not more than
$70,000, see id. §2B5.1(b)(1)(B); and a two-level reduction for
acceptance of responsibility, see id. §3E1.1(a). If the
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appellant's criminal history score placed him in CHC I, the GSR was
estimated to be twelve to eighteen months.
Both plea agreements permitted the appellant to request,
without opposition from the government, a split sentence (that is,
a sentence to be served partly in prison and partly in home
confinement). Moreover, the government stipulated that it would
not oppose concurrent sentences.
The district court accepted the appellant's guilty pleas
at an omnibus change-of-plea hearing. At the conclusion of this
hearing, the court ordered the preparation of a PSI Report. When
received, the PSI Report treated the two indictments as a unit and
grouped all of the counts of conviction for a combined offense
level of nine. See id. §3D1.2(d). It then recommended an eight-
level enhancement for an aggregate monetary loss above $70,000 but
not more than $120,000, see id. §2B5.1(b)(1)(B), and a three-level
reduction for acceptance of responsibility, see id. §3E1.1(b). It
likewise recommended a two-level enhancement under USSG
§2B5.1(b)(2)(A) because the appellant "possessed or had custody of
or control over a counterfeiting device or materials used for
counterfeiting." Finally, it tabulated the appellant's criminal
history score and recommended that he be placed in CHC II.
At sentencing, the district court embraced the grouping
concept and the offense level adjustments. However, the court
calculated the appellant's criminal history score more charitably
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and placed him in CHC I. These determinations yielded a GSR of
twenty-one to twenty-seven months, and the court imposed a bottom-
of-the-range incarcerative sentence. These timely appeals ensued.
II. ANALYSIS
In this venue, the appellant claims that his sentence is
both procedurally and substantively unreasonable. We proceed
directly to these arguments, bypassing the government's problematic
contention that these appeals are barred by the waiver-of-appeal
provision contained in each of the appellant's plea agreements.
See United States v. Pérez-Crespo, 557 F. App'x 6, 7 n.1 (1st Cir.
2014) (adopting a similar approach).
A. The Procedural Claims.
The appellant argues that his sentence is procedurally
flawed for two reasons. We address these arguments separately.
1. USSG §2B5.1(b)(2)(A). The appellant concedes the
correctness of all but one of the district court's guideline
calculations. He challenges only the two-level enhancement under
USSG §2B5.1(b)(2)(A).
By its terms, this enhancement applies to a defendant who
has "manufactured or produced any counterfeit obligation . . . of
the United States, or possessed or had custody of or control over
a counterfeiting device or materials used for counterfeiting."
USSG §2B5.1(b)(2)(A). The appellant says that he did not use a
"counterfeiting device." Rather, the postal money orders at issue
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here were genuine (that is, printed with conventional USPS
equipment on authentic postal money order blanks). Therefore, the
enhancement does not pertain.
We review the district court's interpretation of the
sentencing guidelines de novo. See United States v. Clark, 685
F.3d 72, 79 (1st Cir. 2012). Here, the appellant's argument turns
on the meaning of "counterfeiting device." As is true of the
interpretation of statutes, the language of a guideline provision
furnishes the most reliable guide to its interpretation. See
United States v. Dixon, 449 F.3d 194, 202 (1st Cir. 2006). When
the language of the guideline is plain and unambiguous, that is the
end of the matter. See id. at 203. If, however, the language of
the guideline leaves legitimate room for doubt, an inquiring court
may look to other interpretive aids, including context and
background. See United States v. Alvarez-Cuevas, 415 F.3d 121, 125
(1st Cir. 2005).
We think that the term "counterfeiting device" has a
plain, ordinary, and unambiguous meaning: a device used for
counterfeiting. While the guidelines do not define this term, the
Sentencing Commission has explicitly defined a "counterfeit" as "an
instrument that has been falsely made, manufactured, or altered."
USSG §2B5.1, comment. (n.1). In turn, "alter" means "[t]o make a
change in; to modify; to vary in some degree; to change some of the
elements or ingredients or details without substituting an entirely
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new thing or destroying the identity of the thing affected."
Black's Law Dictionary 77 (6th ed. 1990).
This definition of "counterfeit" informs the meaning of
the term "counterfeiting device." By arranging for the printing of
fake dollar amounts on otherwise worthless money order blanks, the
appellant "altered" those blanks — and this alteration was
accomplished through the use of a machine. Taken at face value,
the appellant's actions comprise alteration of postal money orders
through the use of a mechanical counterfeiting device. No more is
exigible to warrant application of the enhancement.
The appellant rejoins that the word "alter[]" in the
counterfeiting context is a term of art. He notes that the
definition of "counterfeit" was added to the sentencing guidelines
in 2009, see USSG App. C, Amend. 731 (2009), and that prior to that
time the term was undefined. He correctly points out that the
addition of the definition was intended to resolve differing
judicial treatment of so-called "bleached note" cases — cases in
which defendants chemically stripped genuine United States currency
and reprinted it with higher values. See id.; compare, e.g.,
United States v. Schreckengost, 384 F.3d 922, 923-25 (7th Cir.
2004), with, e.g., United States v. Dison, No. 07-50072-04, 2008 WL
351935, at *1-2 (W.D. La. Feb. 8, 2008). The new definition made
pellucid that "bleached note" schemes would qualify as
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counterfeiting because such schemes involved the false alteration
of genuine monetary instruments.
Building on this foundation, the appellant insists that
the word "alter" is meant to apply exclusively to the "bleached
note" context. But this reading is far too crabbed. Although part
of the impetus for the 2009 amendment was to clarify that "bleached
note" cases are subject to the enhancement under §2B5.1(b)(2)(A),
the language of the amendment was in no way limited to such cases.
To the contrary, the Sentencing Commission stated unreservedly that
the new definition was meant to insure that "altered instruments
are treated as counterfeit and sentenced under §2B5.1." USSG App.
C, Amend. 731 (2009). The appellant's offenses plainly involved
altered instruments.
To cinch matters, in crafting the amendment the
Sentencing Commission expressly recognized that new technologies
had "rendered obsolete the previous distinction in the guidelines
between an instrument falsely made or manufactured in its entirety
and a genuine instrument that is altered." Id.1 Based on this
language, we find it hard to accept the appellant's interpretation
that bleached notes are the only "altered" instruments to which
this enhancement is meant to apply.
1
The reference to the "previous distinction" reflects an
earlier application note, which had indicated that "counterfeit"
was not meant to apply to "genuine instruments that have been
altered." USSG §2B5.1, comment. (n.3) (Nov. 2008). The 2009
amendment deleted this application note.
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The appellant next argues that the "device" that Peña
used at the appellant's direction to create bogus money orders was
an authentic money order printer. This fact, he says, insulates
him from any claim that the printer was a counterfeiting device
and, thus, insulates him from the enhancement. That argument is
hopeless. The authenticity of the printer in no way diminishes the
counterfeit nature of the ersatz money orders printed at the
appellant's direction. This enhancement has routinely been applied
to counterfeits created through the use of legitimate devices, see,
e.g., United States v. Taylor, 991 F.2d 533, 535-36 (9th Cir. 1993)
(photocopy machine); United States v. Castillo, 928 F.2d 1106, 1108
(11th Cir. 1991) (counterfeit money detector); United States v.
Penson, 893 F.2d 996, 998 (8th Cir. 1989) (paper cutter), and we
have no difficulty in approving the district court's application of
it here.
As a last resort, the appellant seeks to find sanctuary
in the rule of lenity. The rule of lenity generally applies to
criminal statutes that are subject to more than one plausible
interpretation and demands that the interpretation more favorable
to the defendant prevail. See Jones v. United States, 529 U.S.
848, 858 (2000); United States v. Aponte-Guzmán, 696 F.3d 157, 160
(1st Cir. 2012). We have looked with favor on the application of
this rule to a sentencing guideline when "substantial ambiguity as
to the guideline's meaning persists even after a court looks to its
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text, structure, context, and purposes." United States v. Damon,
595 F.3d 395, 401 (1st Cir. 2010).
Here, however, the rule of lenity is purely a makeweight.
There is simply nothing ambiguous either about the meaning of the
guideline provision or about its applicability to the appellant's
conduct. The unvarnished text of the guideline, reinforced by the
commentary, leaves no doubt but that it reaches the conduct to
which the appellant pleaded guilty. It follows inexorably that the
rule of lenity has no bearing.
That ends this aspect of the matter. The two-level
enhancement under §2B5.1(b)(2)(A) is meant to reflect the increased
culpability of the producer of counterfeit obligations as compared
to the culpability of one who merely possesses or passes
counterfeit obligations. See United States v. Webb, 616 F.3d 605,
609 (6th Cir. 2010); USSG §2B5.1, comment. (backg'd). The
Sentencing Commission was obviously concerned about the planning
and degree of sophistication incident to the production of
counterfeit government obligations and, thus, understandably
treated production as an aggravating factor. See USSG §2B5.1,
comment. (backg'd). Seen in this light, the appellant's conduct
comes within the heartland of the enhancement. Consequently, we
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hold that the sentencing court did not err in applying the two-
level enhancement under §2B5.1(b)(2)(A).2
2. 18 U.S.C. § 3553(a). The appellant's second claim of
procedural error posits that the lower court did not give fair and
balanced consideration to the sentencing factors limned in 18
U.S.C. § 3553(a). Assaying this claim of error under a deferential
abuse-of-discretion standard, see United States v. Vargas, 560 F.3d
45, 51 (1st Cir. 2001), we find it meritless.
Once a sentencing court determines a defendant's GSR, it
is then required to consider the factors specified in 18 U.S.C.
§ 3553(a). See Vargas, 560 F.3d at 48. Withal, the court "is not
required to address those factors, one by one, in some sort of rote
incantation when explicating its sentencing decision." Dixon, 449
F.3d at 205. Nor is the court required to give every factor equal
weight. See id.Reviewing the sentencing proceedings as a whole, we are
satisfied that the court appropriately considered the section
3553(a) factors. The court, referring to a number of those factors
and elaborating upon the appellant's background and criminal past,
determined that the twelve-month sentence recommended by the
2
We note that the application notes provide that this
enhancement applies only to the counterfeiting of "bearer
obligations of the United States." See USSG §2B5.1, comment.
(n.2). The record is opaque as to whether USPS money orders fit
this description. Since the appellant has raised no issue in this
regard, we express no view on it here.
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government pursuant to the plea agreements did not reflect the
gravity of the offenses of conviction, did not promote respect for
the law, did not serve the end of deterrence, and did not
adequately address the need for condign punishment. Bearing in
mind that a sentencing court need not explicitly address every
consideration that enters into its decisional calculus, see United
States v. Fernández-Hernández, 652 F.3d 56, 72 (1st Cir. 2011), we
are satisfied that the court below sufficiently weighed the section
3553(a) factors.
We have seen this movie before. Stripped of rhetorical
flourishes, the appellant's real complaint is not that the district
court overlooked or misapprehended relevant sentencing factors but,
rather, that the court gave more weight to factors that the
appellant regarded as unimportant and less weight to factors that
the appellant regarded as salient. Although defendants often
complain about this sort of picking and choosing, such selective
triage is precisely the function that a sentencing court is
expected to perform.
B. The Substantive Claim.
Finally, the appellant contends that his twenty-one month
sentence is substantively unreasonable. We review the substantive
reasonableness of a sentence for abuse of discretion. See United
States v. Gall, 552 U.S. 38, 46 (2007); United States v. King, 741
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F.3d 305, 307 (1st Cir. 2014). Applying that standard of review,
we reject the appellant's contention.
There will rarely, if ever, be a single "perfect"
sentence in any given case. Rather, there will be a range of
reasonable sentences for a particular subset of criminal activity.
See United States v. Santiago-Rivera, 744 F.3d 229, 234 (1st Cir.
2014). Within this range, district courts have wide discretion to
fashion specific sentences. See United States v. Gallardo-Ortiz,
666 F.3d 808, 811 (1st Cir. 2012).
In this case, the appellant's sentence is at the nadir of
a properly calculated GSR. Consequently, demonstrating that the
sentence is substantively unreasonable requires an especially steep
uphill climb. See United States v. Deppe, 509 F.3d 54, 62 (1st
Cir. 2007). As long as the sentence imposed is grounded in a
plausible view of the circumstances and its duration is defensible,
the defendant cannot scale the required heights. See United States
v. Carrasco-De-Jesús, 589 F.3d 22, 30 (1st Cir. 2009); United
States v. Martin, 520 F.3d 87, 96 (1st Cir. 2008).
Here, the district court articulated a plausible
rationale and arrived at a defensible result. The appellant's
conduct was serious: it included using stolen materials to
orchestrate the production of a large number of bogus money orders,
valued at more than $100,000. It also included recruiting
accomplices to cash the bogus money orders. The duration of the
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sentence — twenty-one months — is commensurate with the seriousness
of the offenses. Because the punishment comfortably fits the
crime, there is no principled way to call this sentence
substantively unreasonable. See Santiago-Rivera, 744 F.3d at 234.
In other words, there was no abuse of discretion.
III. CONCLUSION
We need go no further. For the reasons elucidated above,
we uphold the appellant's sentence.
Affirmed.
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