United States v. Rivera-Santiago , 919 F.3d 82 ( 2019 )

United States Court of Appeals
For the First Circuit
No. 17-1763
UNITED STATES OF AMERICA,
Appellee,
v.
ELVIN ANTONIO RIVERA-SANTIAGO,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Carmen Consuelo Cerezo, U.S. District Judge]
Before
Lynch, Selya, and Lipez,
Circuit Judges.
Kendys Pimentel-Soto and Kendys Pimentel-Soto Law Office on
brief for appellant.
Rosa Emilia Rodríguez-Vélez, United States Attorney, Mariana
E. Bauzá-Almonte, Assistant United States Attorney, Chief,
Appellate Division, and B. Kathryn Debrason, Assistant United
States Attorney, on brief for appellee.
March 22, 2019
LIPEZ, Circuit Judge. Claiming procedural
unreasonableness, Elvin Antonio Rivera-Santiago appeals his
48-month sentence for unlawfully possessing a firearm. He contends
that the district court failed to adequately explain its reasons
for imposing an above-guideline sentence, that a variant sentence
was not supported by the record, and that the district court
"relied on erroneous facts." After careful review, we affirm.
I.
Given that this appeal follows a guilty plea, "we draw
the relevant facts from the plea agreement, the change-of-plea
colloquy, the undisputed portions of the presentence investigation
report ("PSR"), and the transcript of the disposition hearing."
United States v. O'Brien, 870 F.3d 11, 14 (1st Cir. 2017).
Rivera-Santiago was charged with being a felon in possession of a
firearm after police officers found firearms, magazines, and
ammunition at the home he shared with his partner and his
seven-year-old daughter, which the officers searched pursuant to
a search warrant, and in his vehicle, which they obtained his
consent to search. Specifically, the officers found: two empty,
large-capacity .40-caliber magazines for a Glock pistol and forty-
two rounds of .40-caliber ammunition in the bedroom closet; a Glock
pistol loaded with twenty-one rounds of .40-caliber ammunition on
the driver's seat of Rivera-Santiago's vehicle; another Glock
pistol loaded with forty-eight rounds of .40-caliber ammunition
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underneath the driver's seat; and three Glock .40-caliber
magazines, containing a total of sixteen rounds of ammunition, in
the driver's-side door pocket. The officers also found a "chip"
used to convert semi-automatic Glocks into fully automatic
firearms on top of a gun cleaning kit on the kitchen counter.
Rivera-Santiago admitted to possessing all the firearms,
magazines, and ammunition. He had previously been convicted of
illegal possession of a firearm as a prohibited person and was
serving a 36-month term of federal supervised release for the prior
conviction at the time of his arrest.
Pursuant to the plea agreement, Rivera-Santiago pleaded
guilty to count one of a two-count indictment, illegal possession
of a firearm by a convicted felon, in violation of 18 U.S.C.
§§ 922(g)(1) and 924(a)(2).1 The parties agreed to recommend
sentences within the applicable guideline range, with
Rivera-Santiago permitted to "request a sentence at the lower end
of the applicable guideline range while the United States may
request a sentence at the upper end."
The PSR calculated Rivera-Santiago's total offense level
at 17 and his criminal history category at III, for a guideline
1As part of the plea agreement, the government moved at
sentencing to dismiss count two, which charged him with illegal
possession of a machine gun, 18 U.S.C. §§ 922(o) and 924(a)(2),
based on his possession of the "chip." The district court granted
the motion.
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range of 30 to 37 months. The calculation took into account
Rivera-Santiago's prior conviction for possession of a stolen
semi-automatic firearm with an extended magazine and additional
loaded magazines, and his commission of the current offense while
on supervised release. Neither side objected to the PSR.
At the sentencing hearing, defense counsel requested a
low-end guideline sentence of 30 months while the government
requested an upper-end guideline sentence of 37 months. Defense
counsel highlighted, inter alia, Rivera-Santiago's difficult
upbringing and the fact that he faced a sentence of incarceration
in the pending revocation matter. The government noted that (1)
the offense involved two weapons and several extended magazines;
(2) the conduct was essentially the same as that underlying Rivera-
Santiago's prior conviction; (3) he committed the present offense
while less than a year out of prison and still on supervised
release; and (4) he had committed several rules violations while
incarcerated awaiting sentencing. As noted in the PSR, Rivera-
Santiago's incarceration infractions included circulating money
illegally inside the prison, "refusing to obey an order," and
"being insolent [to] staff." The government argued that his
behavior, in general, exhibited a "serious disrespect for the law
and authority."
The district court agreed with the guideline range
specified by the PSR, i.e., 30 to 37 months. The court then
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addressed the sentencing factors prescribed by 18 U.S.C. § 3553(a).
It noted Rivera-Santiago's personal characteristics, including his
parenthood, and pointed out that he had committed the present
offense while on supervised release for his prior conviction. The
court also catalogued the two semi-automatic weapons, multiple
extended magazines, and multiple rounds of ammunition that were in
his possession. After stating that it had considered the § 3553(a)
factors, "the serious nature of the offense of conviction, the
type of weapon and the [amount] of ammunition involved, [and] the
defendant's criminal history," the court imposed a 48-month
variant sentence. Defense counsel immediately "object[ed] to the
varian[t] sentence as procedurally unreasonable," without further
elaboration. In response, the court replied, "I believe the
circumstances of this defendant fully justifies the [c]ourt's
sentence. He's putting at risk his own safety and that of the
community. He's not protecting himself, his child or the
community. It's a very serious offense and circumstances that he
was involved with." This timely appeal followed.2
2 The government properly concedes that the appeal waiver in
the plea agreement does not apply. See United States v.
Montalvo-Cruz, 745 F.3d 583, 584 n.1 (1st Cir. 2014) ("Because the
district court did not follow [the parties' sentencing]
recommendation, the waiver of appeal does not apply."). The
government also generally acknowledges that the district court
imposed an above-guideline sentence despite the government's
occasional, erroneous references in its appellate brief to a "mid-
range" or a "lower-end, within-guidelines sentence."
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II.
Rivera-Santiago contends that the 48-month sentence
imposed by the district court is procedurally unreasonable because
(1) the court failed to adequately explain its variant sentence,
which he claims was not supported by the record; and (2) the court
"relied on erroneous facts."3 The parties dispute whether he
adequately preserved his objections and thus disagree as to the
standards of review. Because we would affirm the sentence
regardless of the standard, we assume, favorably to Rivera-
Santiago, that he preserved his objections. We therefore review
the district court's imposition of a variant sentence for abuse of
discretion and its factfinding for clear error. See United States
v. Ruiz-Huertas, 792 F.3d 223, 226 (1st Cir. 2015).
A. Justification for Variant Sentence
Rivera-Santiago argues that his sentence is procedurally
unreasonable because there is no basis for distinguishing his case
from the "run-of-the-mill" felon-in-possession case contemplated
by the guideline sentencing range, and because "[n]o particular
circumstance was pointed out by the district court to adequately
3 To the extent Rivera-Santiago intended to bring a
substantive unreasonableness claim, he has waived such a claim by
failing to develop it beyond a few passing references in his brief.
See United States v. Zannino, 895 F.2d 1, 17 (1st Cir. 1990). Such
a claim is, in any event, unavailing because the district court
offered a plausible rationale for the sentence and arrived at a
defensible result, as further explained below. See United States
v. Mangual-Rosado, 907 F.3d 107, 111 (1st Cir. 2018).
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support a varian[t] sentence."
It is well established that a district court may vary
above or below a guideline range so long as it "offer[s] a
'plausible and coherent rationale' for its variance." United
States v. Alejandro-Rosado, 878 F.3d 435, 439 (1st Cir. 2017)
(quoting United States v. Guzman-Fernandez, 824 F.3d 173, 178 (1st
Cir. 2016)). When a § 3553(a) consideration is already accounted
for in the guideline range, a sentencing court "must articulate
specifically the reasons that this particular defendant's
situation is different from the ordinary situation covered by the
guidelines calculation." Guzman-Fernandez, 824 F.3d at 177
(quoting United States v. Zapete-Garcia, 447 F.3d 57, 60 (1st Cir.
2006)).
Here, the district court offered "a plausible and
coherent rationale" for its eleven-month variance. See
Alejandro-Rosado, 878 F.3d at 440. The court highlighted that
Rivera-Santiago had committed the offense while on supervised
release for essentially the same offense, and that he possessed
two semi-automatic weapons and a stash of large-capacity magazines
and ammunition in his family home and in his vehicle. The
sentencing range calculated by the district court would apply to
a defendant who possessed a single firearm, see U.S.S.G. §
2K2.1(a)(4)(B), who had been convicted of any crime punishable by
imprisonment for a term exceeding one year, see id. § 2K2.1 cmt.
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3 (citing 18 U.S.C. § 922(g)), and who had committed the present
offense while on supervised release for any prior offense, see id.§ 4A1.1(d). Thus, the district court noted precisely those factors
that differentiate Rivera-Santiago's offense from the
"run-of-the-mill" felon-in-possession offense contemplated by the
guidelines.
B. Reliance on Erroneous Facts
Rivera-Santiago also contends that the district court's
comments after defense counsel objected to the sentence
demonstrate that the court relied on erroneous facts, namely (1)
that Rivera-Santiago had put the safety of his family and the
community at risk, and (2) that his offense was "very serious."
We disagree.
The district court's comments invoked only undisputed
facts supported by the record. It is a foundational principle of
the felon-in-possession statute that a felon's unlawful possession
of firearms presents a danger to society. See United States v.
Doe, 960 F.2d 221, 225 (1st Cir. 1992) ("[L]egislators, when
enacting the felon-in-possession statute, repeatedly referred to
the danger that a gun, in the hands of a previously convicted
felon, poses for the public."). Further, Rivera-Santiago's
possession of multiple semi-automatic weapons, large-capacity
magazines, and ammunition unsecured and accessible in his vehicle
and in the home he shared with his partner and minor daughter
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presented a danger to his family and society above and beyond a
generic felon-in-possession case. It was also reasonable for the
court to conclude that the offense was "very serious" given that
Rivera-Santiago's possession of semi-automatic firearms while
still on supervised release for unlawfully possessing a semi-
automatic weapon demonstrated a lack of respect for the law and
the absence of rehabilitation. For these reasons, the court did
not rely on erroneous facts in imposing Rivera-Santiago's
sentence.
III.
Concluding for the foregoing reasons that
Rivera-Santiago's 48-month variant sentence was not procedurally
unreasonable, we affirm.
So ordered.
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