United States v. Cruz-Olavarria , 919 F.3d 661 ( 2019 )

United States Court of Appeals
For the First Circuit
Nos. 17-1761, 17-1762
UNITED STATES OF AMERICA,
Appellee,
v.
ROBERTO CRUZ-OLAVARRIA,
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, Lipez, and Kayatta,
Circuit Judges.
Alejandra Bird López on brief for appellant.
Rosa Emilia Rodríguez-Vélez, United States Attorney,
Mariana E. Bauzá-Almonte, Assistant United States Attorney, Chief,
Appellate Division, and Thomas F. Klumper, Assistant United States
Attorney, Senior Appellate Counsel, on brief for appellee.
March 27, 2019
LIPEZ, Circuit Judge. Roberto Cruz-Olavarria challenges
two separate terms of imprisonment: his 120-month sentence for
possessing a machine gun, and a consecutive 24-month sentence for
violating conditions of supervised release related to an earlier
conviction for possessing a machine gun. Because an appellate
waiver provision in Cruz-Olavarria's plea agreement bars us from
reviewing the sentence imposed on the new charges, we address the
merits only of his revocation sentence. As to that sentence, we
find no error and therefore affirm.
I.
In June 2012, Cruz-Olavarria pled guilty to unlawfully
possessing a firearm that was modified to shoot automatically --
i.e., a machine gun, as defined by federal law. See 18 U.S.C.
§ 922(o) (criminalizing unlawful possession of a machine gun);
26 U.S.C. § 5845(b) (defining "machinegun"). He received a
sentence of 36 months' imprisonment and three years of supervised
release. More than halfway through his supervised release term,
in September 2016, Puerto Rico police officers assigned to the San
Juan Drug Unit arrested Cruz-Olavarria at a housing project after
seeing him drop a plastic bag and finding in his waistband a
modified pistol that federal law classifies as a machine gun. A
fully loaded, fifteen-round capacity magazine was attached to the
pistol. In his back pocket, Cruz-Olavarria had two thirteen-round
capacity magazines, one fully loaded and one with twelve rounds.
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Officers also recovered the plastic bag, which contained
twenty-three hand-rolled marijuana cigarettes.1
In a five-count superseding indictment issued in October
2016, Cruz-Olavarria was charged with (1) being a
felon-in-possession of a firearm and ammunition (Count One), (2)
illegal possession of a machine gun (Count Two), (3) possession
with intent to distribute drugs (Count Three), and (4) possession
of firearms in furtherance of a drug trafficking crime (Counts
Four and Five). Cruz-Olavarria agreed to plead guilty to Counts
One and Two, and the government agreed in return to dismiss the
remaining counts.
The Sentence Recommendation provision of the plea
agreement stated:
After due consideration of the relevant
factors enumerated in 18 U.S.C. §3553(a) and
after considering that the parties have agreed
that Counts Three through Five will be
dismissed ([one of] which carried a minimum
sentence of 30 years of imprisonment), the
parties agree that as to Counts One and Two,
the defendant will request a sentence of no
less than ninety-six (96) months and the
United States may request a sentence of up to
one hundred twenty (120) months of
imprisonment.
1 The relevant facts in this case are largely undisputed,
although Cruz-Olavarria questions on appeal the statement -- drawn
from the summary of offense conduct in his Presentence
Investigation Report ("PSR") -- that he had been in possession of
the plastic bag retrieved by the officers. However, Cruz-Olavarria
did not object to the PSR's account, and we therefore rely on it
in setting out the background. See United States v. De la Cruz-
Gutiérrez, 881 F.3d 221, 223 (1st Cir. 2018).
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The plea agreement also contained a Waiver of Appeal provision:
"The defendant knowingly and voluntarily waives the right to appeal
the judgment and sentence in this case, provided that the Defendant
is sentenced in accordance with the terms and conditions set forth
in the Sentence Recommendation provisions of this Plea Agreement."
The district court sentenced Cruz-Olavarria to 120
months' imprisonment -- the statutory maximum -- for the new
criminal conduct.2 The Guidelines range for those crimes, based
on his acceptance of responsibility and Criminal History Category
("CHC") of III, was 30 to 37 months' imprisonment. In explaining
the sentence, the court emphasized the special danger posed by
machine guns, referenced Cruz-Olavarria's possession of marijuana,
and noted that "he possessed the machine gun in further[ance] of
a drug trafficking crime." The court observed that it would have
imposed a sentence greater than 120 months but for the statutory
limit, having concluded that the statutory maximum was
insufficient to reflect, inter alia, the seriousness of the offense
and the need to deter and punish Cruz-Olavarria.
Immediately after Cruz-Olavarria's sentencing on the new
criminal charges, in the same proceeding, the district court
2 At the government's request, pursuant to the plea agreement,
the court dismissed Counts Three, Four, and Five of the superseding
indictment.
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separately considered the revocation sentence.3 Because
Cruz-Olavarria's violation of his supervised release conditions
included possession of a machine gun, the violation was classified
as Grade A, the most serious type. See U.S.S.G. § 7B1.1(a); United
States v. Tanco-Pizarro, 892 F.3d 472, 475 (1st Cir. 2018)
(describing the three violation grades). His Guidelines range
(based on his CHC of I) was therefore 12 to 18 months'
imprisonment, see U.S.S.G. § 7B1.4(a),4 and he was subject to a
statutory maximum term of two years, see 18 U.S.C. § 3583(e)(3).
Defense counsel urged the court to run the revocation
sentence concurrently with the sentence for the new crimes. She
emphasized that Cruz-Olavarria had "complied with most of his
supervision conditions," and she further noted that his difficult
childhood and learning disabilities had limited his education and
employment opportunities. The government requested "a guideline
3 The district court is authorized by statute to impose a term
of imprisonment upon revocation of a term of supervised release.
See 18 U.S.C. § 3583(e)(3). When doing so, the court is directed
to consider some, but not all, of the sentencing factors listed in
18 U.S.C. § 3553(a), including the nature and circumstances of the
offense, the defendant's history and characteristics, and the need
to deter future crime and protect the public. Id.; see also, e.g.,
United States v. Soto-Soto, 855 F.3d 445, 450 (1st Cir. 2017).
4 Although Cruz-Olavarria's CHC for the 2016 crimes was III,
the CHC of I for the supervised release violation was based on
"the category determined at the time the defendant originally was
sentenced to the term of supervision." U.S.S.G. § 7B1.4 cmt. n.1.
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sentence . . . to run consecutively" and suggested 12 months as
"adequate" for "the breach of trust."
The court rejected both recommendations and again varied
from the Guidelines to impose the statutory maximum 24-month
sentence to run consecutively to the just-imposed 120-month term.
The court observed, inter alia, that Cruz-Olavarria "has shown
that he is unable to comply with the law," "demonstrates a blunt
disregard for the conditions imposed by the [c]ourt and has no
concern for public safety." The court referenced the sentencing
factors set forth in 18 U.S.C. § 3553(a) and stated that a sentence
at the statutory maximum was appropriate "[t]o reflect the
seriousness of the offense, promote respect for law, provide just
punishment for the offense, . . . afford adequate deterrence[,]
and to protect the public from further crimes" by Cruz-Olavarria.
On appeal, Cruz-Olavarria contests both sentences,
arguing that he is entitled to resentencing because the district
court failed to adequately support either upward variance from the
Guidelines.
II.
A. Waiver of Appeal
In challenging his 120-month sentence for the crimes
charged in the 2016 indictment, Cruz-Olavarria confronts the
threshold barrier of the waiver of appeal in his plea agreement.
He maintains that the waiver does not apply because he acquiesced
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only to a term of 96 months. He points out that the plea agreement
did not contain a joint recommendation accepted by both parties,
and he asserts that the waiver provision "in no way represents a
concession by the defense that the 120 month sentence that the
government reserved the right to advocate [for] . . . would be
reasonable or acceptable." This attempt to avoid the waiver is
unavailing.
Under First Circuit precedent, a sentencing
recommendation provision such as the one in Cruz-Olavarria's plea
agreement establishes a range for an appellate waiver that
incorporates both parties' proposals. See, e.g., United States v.
Morales-Arroyo, 854 F.3d 118, 119-20 (1st Cir. 2017) (noting
defendant's recommendation of 96 months and government's
recommendation of 144 months, and observing that defendant "waived
his right to appeal as long as he received a sentence between 96
and 144 months"); United States v. Betancourt-Pérez, 833 F.3d 18,
22 (1st Cir. 2016) (referencing "the 60-to-120-month range" where
plea agreement permitted defendant to request 60-month sentence
and government to request up to 120 months). Employing that
approach, the sentencing provision in Cruz-Olavarria's plea
agreement created a recommended range of 96 to 120 months'
imprisonment, and his sentence of 120 months thus falls within the
scope of the waiver. We therefore dismiss the portion of
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Cruz-Olavarria's appeal challenging his sentence for the 2016
crimes.
B. Revocation Sentence
Cruz-Olavarria asserts that his variant sentence for
violating his conditions of supervised release is unlawful because
the district court failed to identify how his circumstances
"differ[ed] from the ordinary situation covered by the guidelines
calculation." United States v. Zapete-Garcia, 447 F.3d 57, 60
(1st Cir. 2006). Although a complaint about the adequacy of the
court's explanation for a variance is often construed as a claim
of procedural unreasonableness, see Gall v. United States, 552
U.S. 38, 51 (2007); United States v. Contreras-Delgado, 913 F.3d
232, 238 (1st Cir. 2019), Cruz-Olavarria frames his challenge in
substantive terms. In effect, he argues that the "large variance
from the guidelines range" is unjustifiable and, hence,
substantively unreasonable. Accordingly, we follow his lead and
focus solely on the substantive issue.
In evaluating the substantive reasonableness of a
sentence, "we proceed under the abuse of discretion rubric, taking
account of the totality of the circumstances," United States v.
Ruiz-Huertas, 792 F.3d 223, 226 (1st Cir. 2015), "including the
extent of any variance from the Guidelines range,"
Contreras-Delgado, 913 F.3d at 239 (quoting United States v.
Bermúdez-Meléndez, 827 F.3d 160, 163 (1st Cir. 2016)); see also
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id. (noting that, "[i]n determining substantive reasonableness,
substantial respect is due to the sentencing court's discretion"
(quoting Bermúdez-Meléndez, 827 F.3d at 163)).5 The central
inquiry is whether the sentence "reflect[s] both a plausible
sentencing rationale and a defensible result." United States v.
Nuñez, 840 F.3d 1, 7 (1st Cir. 2016). Both criteria are met here.
The district court did not expound at length on its
reasons for deviating from the Guidelines during the revocation
portion of the sentencing hearing. Nonetheless, its explanation
in context was more than sufficient to satisfy the plausibility
requirement. Only minutes earlier, in sentencing Cruz-Olavarria
for the new criminal conduct, the court had emphasized the severity
of the new crimes -- which also constituted the violations of
supervised release. The court not only made clear its view that
machine guns are distinctively dangerous,6 but it also highlighted
5 We bypass the government's contention that Cruz-Olavarria's
challenge to his sentence deserves only plain error review. The
proper standard of review for unpreserved substantive
reasonableness claims remains an open question in our circuit, see
Contreras-Delgado, 913 F.3d at 239, and the outcome here does not
depend on the standard.
6 The district court read aloud the following language from a
Ninth Circuit case, United States v. Henry:
A modern machine gun can fire more than 1,000
rounds per minute, allowing a shooter to kill
dozens of people within a matter of seconds.
Short of bombs, missiles, and biochemical
agents, we can conceive of few weapons that
are more dangerous than machine guns.
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that the new crimes included unlawful possession of a machine gun
-- i.e., the same crime for which Cruz-Olavarria was serving the
term of supervised release. See, e.g., Tanco-Pizarro, 892 F.3d at
482 (affirming 500% upwardly variant revocation sentence where,
inter alia, defendant was charged as a felon in possession "while
on supervised release for an earlier gun-related offense"). The
court's comments about Cruz-Olavarria's repetitive dangerous
conduct carried over to the court's explanation for finding that
the Guidelines range of 12 to 18 months did not fully account for
the seriousness of his supervised release violations.
In addition, although the drug-related counts were
dropped as part of the plea deal, the district court could properly
. . . Outside of a few government-related
uses, machine guns largely exist on the black
market.
In short, machine guns are highly "dangerous
and unusual weapons" that are not "typically
possessed by law-abiding citizens for lawful
purposes."
688 F.3d 637, 640 (9th Cir. 2012) (quoting Dist. of Columbia v.
Heller, 554 U.S. 570, 625, 627 (2008)) (other citation omitted).
All of the firearms and devices triggering a Grade A supervised
release violation under the Guidelines are considered "inherently
dangerous." United States v. Bishop, 453 F.3d 30, 31 (1st Cir.
2006) (quoting U.S.S.G. supp. app. C, amend. 674, at 134 (2004));
see U.S.S.G. § 7B1.1(a). However, the district court could
reasonably view machine guns as more problematic than other, non-
automatic weapons covered by the same Guidelines provision. See
26 U.S.C. § 5845(a) (including among such firearms short-barreled
shotguns and rifles, and silencers).
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consider the unchallenged facts surrounding Cruz-Olavarria's
arrest contained in the Presentence Investigation Report ("PSR").
See United States v. Severino-Pacheco, 911 F.3d 14, 20 (1st Cir.
2018) (noting that, absent objections from the defendant, "a PSR
bears sufficient indicia of reliability to permit the district
court to rely on it at sentencing" (quoting United States v. Cyr,
337 F.3d 96, 100 (1st Cir. 2003))). Cruz-Olavarria's possession
of drugs also was cited as an additional supervised release
violation in the Probation Office's motion seeking an arrest
warrant.
We have observed that a court's reasons for imposing a
variant sentence "should typically be rooted either in the nature
and circumstances of the offense or the characteristics of the
offender." United States v. Fuentes-Echevarria, 856 F.3d 22, 26
(1st Cir. 2017) (quoting United States v. Flores-Machicote, 706
F.3d 16, 21 (1st Cir. 2013)). In this case, the district court
relied on both: the highly dangerous, repeated possession of a
machine gun and Cruz-Olavarria's seeming lack of concern for public
safety.7 Given those factors, the variant sentence imposed -- six
7 Although the district court did not expressly link its
concerns about machine guns and Cruz-Olavarria's disregard for
public safety to the prevalence of firearms and violent crime in
Puerto Rico, Cruz-Olavarria's PSR noted that the court "may
consider Puerto Rico's high firearms and violent crime rate to
impose the sentence." See, e.g., United States v. Hernández-
Ramos, 906 F.3d 213, 214 (1st Cir. 2018) (noting that "Puerto
Rico's continuing experience with gun violence" is "a permissible
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months above the 18-month high end of the Guidelines range -- was
not "outside the 'expansive boundaries' of the entire range of
reasonable sentences." United States v. Vargas-Dávila, 649 F.3d
129, 130 (1st Cir. 2011) (quoting United States v. Martin, 520
F.3d 87, 92 (1st Cir. 2008)); see Contreras-Delgado, 913 F.3d at
239 ("[E]ven when the district court imposes a variant sentence,
this court affords 'due deference to the district court's decision
that the § 3553(a) factors, on a whole, justify the extent of the
variance.'" (quoting Gall, 552 U.S. at 51)). Put another way, the
district court "articulated 'a plausible sentencing rationale' and
reached 'a defensible result.'" United States v. Matos-de-Jesús,
856 F.3d 174, 179 (1st Cir. 2017) (quoting Martin, 520 F.3d at
96). Detecting no abuse of discretion, we affirm the court's
imposition of a 24-month revocation term of imprisonment.
For the foregoing reasons, Appeal No. 17-1762 is
dismissed. The sentencing judgment underlying Appeal No. 17-1761
is affirmed.
sentencing consideration[,] provided the court does not 'ignore [a
defendant's] individual circumstances'" (second alteration in
original) (quoting United States v. Laureano-Pérez, 892 F.3d 50,
52 (1st Cir. 2018))).
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