United States v. Fuentes-Echevarria , 856 F.3d 22 ( 2017 )

United States Court of Appeals
For the First Circuit
No. 16-1176
UNITED STATES OF AMERICA,
Appellee,
v.
RAYMOND FUENTES-ECHEVARRIA,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. José Antonio Fusté, U.S. District Judge]
Before
Howard, Chief Judge,
Lipez and Thompson, Circuit Judges.
Derege B. Demissie and Demissie & Church on brief for
appellant.
Rosa Emilia Rodríguez-Vélez, United States Attorney, Mariana
E. Bauzá Almonte, Assistant United States Attorney, Chief,
Appellate Division, and John A. Mathews II, Assistant United States
Attorney, on brief for appellee.
May 1, 2017
HOWARD, Chief Judge. Raymond Fuentes-Echevarria
challenges the procedural reasonableness of a forty-eight-month
sentence imposed following his guilty plea for illegal possession
of a machine gun. He also brings an ineffective assistance of
counsel claim. After careful consideration, we affirm his sentence
and dismiss his ineffective assistance claim without prejudice.
I.
On September 15, 2014, police officers stopped Fuentes,
who was driving his Honda Accord in reverse in the middle of a
street, near a known drug trafficking point in San Juan, Puerto
Rico.1 While one officer issued a ticket to Fuentes, a canine
trained to detect narcotics, accompanied by another officer,
marked two separate locations on Fuentes's vehicle. Fuentes fled
the scene and was not arrested.
Officers subsequently sealed Fuentes's vehicle,
transported it to police headquarters, and obtained a search
warrant. A subsequent search of the vehicle revealed a secret
compartment near the center of the dashboard. From the
compartment, officers seized a .40 Glock pistol modified to fire
automatically, several gun magazines, and 108 rounds of
ammunition. On September 18, 2014, a grand jury returned a sealed
1 We draw these facts -- to which Fuentes did not object --
from the change-of-plea colloquy and transcript of the sentencing
hearing.
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indictment charging Fuentes with illegal possession of a machine
gun, in violation of 18 U.S.C. § 922(o) and § 924(a)(2).
Fuentes was arrested about a year later, in July 2015.
He initially pled not guilty, and a trial was scheduled. But he
ultimately moved to change his plea mere days before the trial was
set to begin, and entered a straight plea -- that is, without a
plea agreement -- to the sole charge in the indictment.
Fuentes's Presentence Report ("PSR"), to which he did
not object, indicated that his criminal history category was I,
and that his Base Offense Level ("BOL") was eighteen, pursuant to
U.S.S.G. §2K2.1(a)(5). However, because Fuentes accepted
responsibility, his total offense level ("TOL") was reduced to
sixteen, see U.S.S.G. §3.E1.1(a), thus setting the applicable
Guidelines Sentencing Range ("GSR") at twenty-one to twenty-seven
months. At the sentencing hearing, Fuentes recommended a bottom-
of-the-GSR sentence of twenty-one months, while the government
asked for sixty. After reviewing the facts of this case and
expressing a heightened need for community deterrence, the judge
sentenced Fuentes to forty-eight months' imprisonment, followed by
thirty-six months of supervised release.
On appeal, Fuentes challenges the reasonableness of his
sentence on two grounds. He contends that the district court erred
by failing to apply an additional one-level reduction to his TOL
for acceptance of responsibility under §3E1.1(b). He also argues
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that the district court's reliance on certain community factors
did not justify the upward variance. Finally, Fuentes brings an
ineffective assistance of counsel claim. We address each in turn.
II.
A. Sentencing Challenges
We review criminal sentences "under a deferential abuse-
of-discretion standard." United States v. Martin, 520 F.3d 87, 92
(1st Cir. 2008) (quoting Gall v. United States, 552 U.S. 38, 56
(2007)). In applying this standard, we examine a sentence's
procedural and substantive reasonableness. United States v.
Dávila–González, 595 F.3d 42, 47 (1st Cir. 2010). Here, Fuentes
assigns only procedural errors to his sentence. See Martin, 520
F.3d at 92 (noting that "failing to calculate (or improperly
calculating) the Guidelines range" is procedural); United States
v. Narváez–Soto, 773 F.3d 282, 286-87 (1st Cir. 2014) (treating
a challenge about purportedly impermissible sentencing
considerations as procedural). Unpreserved procedural challenges
engender plain error review. Dávila–González, 595 F.3d at 47. In
these circumstances, we will reverse the district court only upon
a showing "(1) that an error occurred (2) which was clear or
obvious and which not only (3) affected the defendant's substantial
rights, but also (4) seriously impaired the fairness, integrity,
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or public reputation of judicial proceedings." United States v.
Duarte, 246 F.3d 56, 60 (1st Cir. 2001)
First, Fuentes argues that while the district court
appropriately reduced his TOL by two levels under U.S.S.G.
§3E1.1(a) for acceptance of responsibility, it erred by not
reducing the TOL by an additional level under §3E1.1(b). Section
3E1.1(b) provides, in relevant part: "If the defendant qualifies
for a decrease under subsection (a), the [BOL] determined prior to
the operation of subsection (a) is level 16 or greater, and upon
motion of the government . . . decrease the offense level by 1
additional level." U.S.S.G. §3E1.1(b) (emphasis added). The
government did not make such a motion, and Fuentes did not request
it either in opposition to the PSR or during sentencing.
We need not decide -- as the government suggests --
whether Fuentes waived or merely forfeited his challenge by failing
to raise it below, as his claim falters on plain error review.
See, e.g., United States v. Acevedo-Sueros, 826 F.3d 21, 24 (1st
Cir. 2016). The district court did not commit an error, plain or
otherwise, in not granting the additional reduction sua sponte.
As we have previously held in Acevedo-Sueros, 826 F.3d at 24, not
only does the plain text of §3E1.1(b) provide that the government
must first make a motion for the reduction,2 but the relevant
2 Although there are some exceptions to the government-motion
requirement, see United States v. Beatty, 538 F.3d 8, 14-15 (1st
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commentary for this section also emphasizes the government's
discretion to refuse to do so:
Because the Government is in the best position
to determine whether the defendant has
assisted authorities in a manner that avoids
preparing for trial, an adjustment under
subsection (b) may only be granted upon a
formal motion by the Government at the time of
sentencing.
Acevedo-Sueros, 826 F.3d at 24 (quoting §3E.1.1(b) cmt. n.6).
Accordingly, the district court did not err in not awarding the
additional reduction.
Discerning no error on this front, we proceed to
Fuentes's next challenge, which he preserved below. Fuentes
maintains that the court's decision to impose a forty-eight-month
variant sentence "lacked factual support,"3 because it was heavily
premised on the court's concern with "general violence" in the
community. For instance, he points to the sentencing court's
statement that it was "sick and tired of violent crimes and guns."
He posits that the court went "too far" in "speculat[ing] about
Cir. 2008), Fuentes does not assert that they apply here, nor does
the record suggest that they would.
3 Fuentes also makes a cursory reference to the court's
"incorrect finding" about his "drug abuse," which was considered
in connection with his supervised release conditions. However, he
only develops a challenge to his incarcerative sentence on appeal,
so any argument to this effect is waived. See United States v.
Zannino, 895 F.2d 1, 17 (1st Cir. 1990).
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the lives of violent criminals," at the expense of failing to
consider facts specific to his case.4
When a court imposes a variant sentence, "its reasons
for doing so 'should typically be rooted either in the nature and
circumstances of the offense or the characteristics of the
offender.'" United States v. Flores-Machicote, 706 F.3d 16, 21
(1st Cir. 2013) (quoting Martin, 520 F.3d at 91). While Fuentes
is correct that the court had an eye towards community deterrence
in fashioning his sentence, we have "repeatedly" explained that
"[d]eterrence is widely recognized as an important factor in the
sentencing calculus." United States v. Díaz–Arroyo, 797 F.3d 125,
129 (1st Cir. 2015) (quoting Flores-Machicote, 706 F.3d at 23)
(alteration in original); see also 18 U.S.C. § 3553(a)(2)(B).
Indeed, community context can "inform[] and contextualize[] the
relevant need for deterrence." Flores-Machicote, 706 F.3d at 23.
The district court did not abuse its discretion by allowing its
assessment that there was an "arsenal [of weapons] out there in
4 Fuentes's attempt to liken his case to United States v.
Ofray-Campos, 534 F.3d 1, 43 (1st Cir. 2008), falls short. In
that case, we vacated an above-Guidelines sentence that exceeded
the top of the recommended GSR by twenty-four years and was the
statutory maximum for that offense. Not only was the variance
here vastly more limited -- Fuentes's sentence was twenty-one
months above the GSR maximum of twenty-seven months and well under
the statutory maximum of ten years, see 18 U.S.C. § 924(a)(2) --
but the district court's explanation here was much more
particularized and persuasive than was the explanation in Ofray-
Campos. 534 F.3d at 43-44.
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the streets" to bear on its conclusion that a strong deterrent was
warranted in this case.
Although "[i]t is possible for a sentencing judge to
focus too much on the community and too little on the individual,"
id. at 24, that did not happen here. The sentencing court
identified several case-specific factors, beyond the need for
general deterrence, to support its view that Fuentes's offense was
"out of line with a heartland case" for which the calculated GSR
would have been appropriate. Among these were the fact that
Fuentes's modified firearm was housed in a secret compartment, and
that it was found with extended magazines and 108 rounds of
ammunition, some of which was suitable for an AK-47 rifle.
Moreover, the court found it significant that Fuentes's traffic
stop occurred near a known drug trafficking area, and that he fled
the scene. The sentencing judge's discussion of these case-
specific facts blunts Fuentes's claim that community factors
improperly shaded his variant sentence.5
5 To the extent that Fuentes advances a substantive
reasonableness challenge, it also fails. The district court
articulated a "plausible rationale" and "defensible result."
Martin, 520 F.3d at 98; see also, e.g., Flores-Machicote, 706 F.3d
at 22, 25 (affirming a five-year sentence that exceeded the GSR
maximum of forty-one months when the offense conduct involved a
"high-caliber weapon with a large-capacity magazine"); Díaz–
Arroyo, 797 F.3d at 130 (upholding a forty-eight-month variant
sentence as reasonable in light of "the defendant's checkered
criminal history and the community's burgeoning problems with
violent crime linked to the illegal possession and use of
firearms").
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B. Ineffective Assistance of Counsel Claim
Finally, we decline to address Fuentes's claims that his
counsel was ineffective for failing to ask for the additional one-
level reduction in Fuentes's TOL and for apparently "conce[ding]
that [Fuentes] had no other purpose than to use the weapon to
commit crimes." Unless counsel's prejudicially deficient
performance is "manifestly apparent from the record," we do not
entertain ineffective assistance claims on direct appeal. United
States v. Rivera-Gonzalez, 626 F.3d 639, 644 (1st Cir. 2010)
(quoting United States v. Wyatt, 561 F.3d 49, 52 (1st Cir. 2009)).
Such an "extraordinary circumstance[]" is not apparent in the
record before us. United States v. Hicks, 531 F.3d 49, 55 (1st
Cir. 2008) (quoting United States v. Martins, 413 F.3d 139, 155
(1st Cir. 2005)). Thus, we dismiss this claim without prejudice,
leaving Fuentes free to raise it in a collateral proceeding under
28 U.S.C. § 2255.
III.
For the foregoing reasons, we affirm Fuentes's sentence
and dismiss his ineffective-assistance claim without prejudice.
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