United States v. Romero-Galindez , 782 F.3d 63 ( 2015 )

United States Court of Appeals
For the First Circuit
No. 13-2205
UNITED STATES,
Appellee,
v.
ANGEL ENRIQUE ROMERO-GALINDEZ,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Daniel R. Domínguez, U.S. District Judge]
Before
Lynch, Chief Judge,
Howard and Thompson, Circuit Judges.
Kendys Pimentel Soto on brief for appellant.
Rosa Emilia Rodríquez-Vélez, United States Attorney, and
Nelson Pérez-Sosa, Assistant United States Attorney, Chief,
Appellate Division, on brief for appellee.
April 3, 2015
THOMPSON, Circuit Judge. Following a guilty plea on a
weapons charge, Angel Romero-Galindez, who many years earlier had
four times over been convicted of murder, was sentenced as an armed
career criminal to twenty years imprisonment. Claiming an
assortment of errors permeated the proceedings below, Romero-
Galindez appeals, asking this court to vacate his guilty plea and
sentence. Having carefully considered the matter, we affirm.
BACKGROUND
Since 1997, Romero-Galindez, who was convicted of
committing four murders between the ages of sixteen and seventeen,
had been serving time in the Puerto Rico state correctional
system.1 In 2012, the then thirty-one year old, had been granted
parole and was staying at some type of rehabilitation center.
According to Romero-Galindez, he received a call at the center from
his sister, who expressed concern for her life following a gang
shoot-out at the housing project where Romero-Galindez had grown
up. Worried, Romero-Galindez left the center to speak with the
involved gang members and, once the issue was resolved, reportedly
contacted his probation officer to turn himself in.
On March 27, 2012, Puerto Rico police officers, having
learned that Romero-Galindez, a state fugitive because of his
1
Since this appeal follows a guilty plea, we gather the
facts from "the change-of-plea colloquy, the presentence
investigation report, and the transcript of the disposition
hearing." United States v. Jiminez, 498 F.3d 82, 84 (1st Cir.
2007).
-2-
departure from the rehabilitation facility, was residing at the
public housing project, went there and arrested him. Romero-
Galindez consented to a search of the apartment, which resulted in
the seizure of an AK-47 assault rifle and ammunition. He admitted
the rifle was his.
Federal authorities stepped in and Romero-Galindez was
charged with being a felon in possession of a firearm, in violation
of 18 U.S.C. § 922(g)(1), and the Armed Career Criminal Act, 18
U.S.C. § 924(e)(1). Following plea negotiations, Romero-Galindez,
who was represented by counsel throughout all court proceedings,
waived his right to a trial by jury and sought to plead guilty.
The plea agreement indicated that the minimum term of imprisonment
required by statute was "no less than fifteen years (15) and no
more than life in prison." It also reflected the parties'
agreement that should Romero-Galindez not be found an armed career
criminal, the government would recommend he be sentenced at the
higher end of that range, while the defense would advocate for the
lower end. The parties stipulated, however, that should Romero-
Galindez turn out to be an armed career criminal, the parties would
recommend a fifteen-year sentence.
The change of plea hearing took place on January 18, 2013
before a magistrate judge. Upon questioning, Romero-Galindez
informed the judge that the plea agreement had been explained to
him and that he understood what it said. The government reiterated
-3-
that, in the event Romero-Galindez was found to be an armed career
criminal (which defense counsel conceded was a near guarantee), the
parties were suggesting the fifteen-year mandatory minimum
sentence. The judge went on to explain the penalty faced by
Romero-Galindez. She indicated that the § 922(g)(1) charge carried
a maximum penalty of ten years imprisonment and three years
supervised release but, if Romero-Galindez was found to have
violated the Armed Career Criminal Act, "then you're considered a
career criminal, and then the statutory maximum does not apply."
After some more back and forth, Romero-Galindez pled guilty and the
judge found him qualified to do so.
The magistrate judge issued a report and recommendation.
In it, she indicated that Romero-Galindez expressed his
understanding of the maximum penalties, which the report stated was
not less than fifteen years imprisonment or more than life, with a
term of supervised release of not more than five years. The report
recommended the guilty plea be accepted, which the district court
judge then did.
The presentence investigation report (PSR) issued.
Romero-Galindez's base offense level was put at 26 but the
enhancement for his armed career criminal status brought him up to
33. With three points taken off for acceptance of responsibility,
the total offense level ended up at 30. The PSR noted the
statutory minimum penalty was fifteen years and the maximum was
-4-
life. The guideline range, given the total offense level of 30 and
criminal history category of VI, was 180 to 210 months imprisonment
(fifteen to seventeen and a half years). The report also noted
that the statutory term of release was not more than five years,
and the guideline range for supervised release was two to five
years.
Romero-Galindez's sentencing hearing took place over
three days, the important date for our purposes being August 19,
2013, when his sentence was handed down.2 Though the government
stood by its fifteen-year sentence recommendation, the district
judge was unconvinced. Emphasizing Romero-Galindez's four prior
murder convictions and the fact that an AK-47 is an offensive
weapon, the judge indicated the statutory minimum would not be a
sufficient deterrent. Though the judge went through the Guidelines
calculation delineated in the PSR, he was clear that "the court is
going to provide a statutory sentence, not a guideline sentence."
He then sentenced Romero-Galindez to 240 months (twenty years) in
prison, with five years of supervised release to follow.
Romero-Galindez timely appealed, challenging both the
validity of his plea and the reasonableness of his sentence.
2
On the first hearing day, July 19, 2013, the court heard
from two defense witnesses advocating for leniency, and on the
second day, July 23, 2013, arguments were heard on whether Romero-
Galindez was arrested or voluntarily surrendered.
-5-
VALIDITY OF PLEA
Romero-Galindez says his plea was not knowing and
voluntary because the judge failed to inform him of the statutory
minimum (fifteen years) and maximum (life) at the change of plea
hearing, and got the maximum term of supervised release wrong,
calling it three years instead of five. The government, for
unknown reasons, only addresses the second half of this argument.
While it does not dispute that the term of supervised release was
stated incorrectly, it claims it does not matter because it is
clear from the record that Romero-Galindez was aware of the correct
term and the difference between the stated and actual term of years
is not so great.
Since Romero-Galindez did not object or seek to set aside
his plea below, review is for plain error only. United States v.
Santiago, 775 F.3d 104, 106 (1st Cir. 2014). The rubric is
familiar; there must be (1) an error, (2) that was plain, (3) which
affected substantial rights, and (4) seriously impacted "the
fairness, integrity or public reputation of judicial proceedings."
Id.
The error here is plain. Rule 11 of the Federal Rules of
Criminal Procedure provides that at the change of plea hearing "the
court must inform the defendant of, and determine that the
defendant understands . . . any maximum possible penalty, including
imprisonment, fine, and term of supervised release." Fed. R. Crim.
-6-
P. 11(b)(1)(H). The court must do the same for "any mandatory
minimum penalty." Fed. R. Crim. P. 11(b)(1)(I). None of this was
done here. While the magistrate judge explained that the §
922(g)(1) maximum penalty of ten years imprisonment would not apply
if Romero-Galindez was found to be an armed career criminal (as he
had been charged), she never went on to say what the mandatory
minimum and maximum penalty would be in that event. And, as the
government concedes, the judge also misstated the maximum term of
supervised release as being three years rather than five.
Nonetheless, even though the judge clearly erred, Romero-
Galindez's claim falters under the plain error requirement that his
substantial rights be affected, which requires that Romero-Galindez
"show a reasonable probability that, but for the error, he would
not have entered the plea." United States v. Dominguez Benitez,
542 U.S. 74, 83 (2004); see also Santiago, 775 F.3d at 107. This
he cannot do.
In support of his claim of error, Romero-Galindez relies
on United States v. Rivera-Maldonado, 560 F.3d 16 (1st Cir. 2009)
and United States v. Santo, 225 F.3d 92 (1st Cir. 2000).
In Rivera-Maldonado, the defendant was erroneously
informed in both the plea agreement and the change of plea colloquy
that he faced, at most, three years of supervised release, when in
fact the maximum was life. 560 F.3d at 17-18. The correct term of
supervised release was contained in the later-issued PSR, and
-7-
relied upon at sentencing by the judge who sentenced the defendant
to supervised release for life. Id. at 19. As in this case, all
were in agreement that the error was plain. Id. Emphasizing the
"dramatically altered . . . sentencing stakes for the defendant,"
this court went on to find a reasonable probability that the
defendant would not have entered the plea had he understood his
exposure. Id. at 21.
Similarly, in Santo, we found that the defendant having
been informed in the plea agreement, and at the change of plea
hearing, that the mandatory minimum was five years imprisonment
instead of the correct ten years (which he was ultimately sentenced
to) was an error that reasonably could have affected his decision
to change his plea to guilty.3 225 F.3d at 101. As in Rivera-
Maldonado, the correct information was provided to the defendant in
the PSR and at sentencing. Santo, 225 F.3d at 96.
There are some important differences between the above
cases and the one at hand. We start with Romero-Galindez's minimum
and maximum term of imprisonment.
3
Santo was decided before the Supreme Court held in United
States v. Vonn, 535 U.S. 55, 58 (2002) and United States v.
Dominguez Benitez, 542 U.S. 74, 76 (2004) that plain error was the
apropos standard in unpreserved Rule 11 claims. United States v.
Ortiz-García, 665 F.3d 279, 288 n.8 (1st Cir. 2011). In effect
though, the review employed in Santo was similar. In it, we noted
the high hurdle faced by the defendant, questioned whether there
was a substantial defect in the proceedings, and considered the
impact on the defendant's substantial rights. Santo, 225 F.3d at
97.
-8-
Significantly, unlike in Rivera-Maldonado and Santo, the
mandatory minimum and maximum term of imprisonment was stated
correctly in the plea agreement, a document that Romero-Galindez
acknowledged at the plea hearing that he understood. At the plea
hearing, the magistrate judge never contradicted the information
contained in the plea agreement, rather she neglected to mention
it. Further, at the hearing, the government attorney twice
accurately stated that the statutory minimum was fifteen years
(though did not reference the mandatory maximum of life) while
explaining the parties' agreement to recommend the minimum
sentence. That makes this case more akin to United States v.
Sevilla-Oyola, 770 F.3d 1, 4-5 (1st Cir. 2014), in which the judge
failed to advise the defendant of a certain maximum penalty at the
plea hearing. Though we ultimately found the issue waived on
appeal, we concluded the defendant could not establish plain error
-- specifically, a reasonable probability that he would not have
plead guilty -- because the omitted maximum penalty was correctly
contained in the PSR, which the defendant confirmed he understood
during the plea colloquy. Id. at 14 n.24.
As far as post-plea, the minimum and maximum terms of
imprisonment were correctly stated in the magistrate judge's report
and recommendation regarding plea acceptance. The same goes for
the PSR. Three versions of the PSR issued before sentencing, each
of which accurately stated the statutory minimum and maximum term
-9-
of imprisonment. At the sentencing hearing, when the judge
explained what penalties Romero-Galindez faced, the information
provided was accurate as well.
No more is needed. All indications are that Romero-
Galindez was made aware of the mandatory minimum and maximum
imprisonment term during plea negotiations, as evidenced by the
plea agreement. That range was then correctly reiterated in the
report and recommendation, in three PSRs, and at sentencing.
Romero-Galindez never expressed surprise or hesitation at any of
these junctures.4 Given all this, Romero-Galindez cannot
demonstrate a reasonable probability that he would not have entered
the plea but for the statutory sentence range being omitted from
the plea hearing. See Dominguez Benitez, 542 U.S. at 83.
Misinforming the defendant of the applicable term of
supervised release also gives no ground for setting aside the plea
in this case. The relevant term of supervised release was not
referenced in the plea agreement and, as the government concedes,
was incorrectly stated at the change of plea hearing as being
three, as opposed to five, years. However, like the statutory
4
Notably, it is not as if Romero-Galindez's attorney was not
contemplating probation's PSR calculations. Rather, in between the
original PSR and version two issuing, Romero-Galindez's attorney
filed a "Motion for Exam" seeking to inspect the seized AK-47. He
noted that probation had classified the weapon as a machine gun, a
designation he disputed. An examination of the weapon was sought
because the "result of said examination could affect the guideline
calculations already submitted in the present case."
-10-
minimum and maximum imprisonment term, the applicable term of
release was accurately stated in the magistrate judge's report and
recommendation, in the three versions of the PSR, and at the
sentencing hearing by the judge while he explained the penalties on
the table. Again, Romero-Galindez did not balk at any of those
points in time.
United States v. Ortiz-García 665 F.3d 279 (1st Cir.
2011) is instructive. In that case, both the plea agreement and
the judge at the change of plea hearing failed to explain the
maximum penalty faced by the defendant; however, the information
was accurately stated in the PSR and by the judge at sentencing,
and the defendant lodged no objection. Id. at 285, 287. Based on
the defendant's failure to object, the government urged this court
to find no Rule 11 violation, but we were unmoved. Id. at 286.
The record revealed that the judge had not confirmed at sentencing
that the defendant had read and discussed the PSR with his attorney
(as required by Federal Rule of Criminal Procedure 32(i)(1)(A)).
Id. at 287. We explained that had the record shown that the
defendant had reviewed the PSR prior to sentencing, "that might
indeed negate Ortiz's claim that the Rule 11 error affected his
substantial rights, given Ortiz's failure to object to the PSR."
Id.; see also Santiago, 775 F.3d at 108 (finding that the district
court's confirming that the defendant had reviewed the PSR with his
attorney disproved his contention that he was caught by surprise).
-11-
Here, Romero-Galindez makes no allegation that he did not
read and discuss the thrice-issued PSR prior to sentencing, nor
does anything in the record compel that conclusion.5 On top of
this, the erroneous information regarding the pertinent term of
supervised release did not "dramatically alter[] the sentencing
stakes for the defendant," a factor we were concerned with in
Rivera-Maldonado. 560 F.3d at 21; see id. (emphasizing "the
dramatic difference between a three year period of supervised
release and a lifetime of supervised release"). Though we by no
means minimize the restraining nature of supervised release, the
two year difference between three and five years of supervised
release is but a small fraction of the life-imprisonment penalty
that Romero-Galindez was facing. See, e.g., United States v.
Munoz, 68 F.3d 465, 1995 WL 581435, *1 (5th Cir. 1995) (per curiam)
(unpublished) ("The court's understatement of the supervised
release term by two years was a relatively small fraction of the
maximum term of imprisonment (life) that [the defendants] faced.").
And the transcript of the sentencing hearing makes clear that the
primary concern for Romero-Galindez (and the court) was the length
of time that he would be imprisoned, specifically how old he would
5
The record includes the transcript for the final day of
Romero-Galindez's sentencing, August 19, 2013, during which the
judge did not ask whether Romero-Galindez reviewed the PSR. This
does not mean the judge never did; there are no transcripts
provided for the first two days of the sentencing hearing, July 19
and 23.
-12-
be when he got out. Defense counsel's expressed fear was that a
fifteen-year sentence, given Romero-Galindez's age, would
effectively turn into a life sentence. There was no debate about,
or worry voiced over, what term of supervised release he would
face.
These things combined compel us to conclude that Romero-
Galindez has failed to satisfy his burden to show that in light of
the mis-stated term of supervised release, "the probability of a
different result is 'sufficient to undermine confidence in the
outcome' of the proceeding." Dominguez Benitez, 542 U.S. at 83
(quoting Strickland v. Washington, 466 U.S. 668, 694 (1984)).
The guilty plea stands.
REASONABLENESS OF SENTENCE
The second half of Romero-Galindez's appeal takes aim at
his sentence. He disputes its procedural and substantive
reasonableness, offering the following. First, Romero-Galindez
says his criminal history category set forth in the PSR, and cited
at the sentencing hearing by the court, was miscalculated. Second,
he claims the court impermissibly disregarded the Sentencing
Guidelines as a starting point. And finally, according to Romero-
Galindez, the judge relied on improper sentencing factors, (e.g.,
public opinion and the supposed lenient treatment Romero-Galindez
received in state court), while putting too much weight on his
prior convictions.
-13-
The government's counter is again less than complete,
hitting just some of Romero-Galindez's claimed errors. In short,
the government argues that overall the Guidelines calculation was
sound and the court considered proper factors, like deterrence and
the serious nature of the offense, when it came up with an
eminently reasonable twenty year sentence.
Our review is for abuse of discretion, which means
"discerning whether the challenged sentence is procedurally sound
and substantively reasonable." United States v. Gallardo-Ortiz,
666 F.3d 808, 811 (1st Cir. 2012); see also Gall v. United States,
552 U.S. 38, 51 (2007). We look for procedural blunders, like
improper Guidelines calculations or an insufficient explanation
from the judge, as well as whether the sentence imposed is in fact
substantively reasonable. United States v. Politano, 522 F.3d 69,
72 (1st Cir. 2008). "[T]he linchpin of a reasonable sentence is a
plausible sentencing rationale and a defensible result." United
States v. Martin, 520 F.3d 87, 96 (1st Cir. 2008).
With these specifications in mind, we take Romero-
Galindez's arguments in turn.
i. Criminal History Calculation
Romero-Galindez, though he agrees that his adjusted
offense level was correctly calculated, claims that his criminal
history score was mistakenly tallied at 14, resulting in a criminal
history of VI, when it should have been 9, which would mean a
-14-
criminal history category of IV. We need not delve too deeply into
the particulars of the argument; it suffices to note that Romero-
Galindez thinks probation, in deciding what Guidelines provisions
were applicable, did not properly take into account that he was
under eighteen years old when he committed his prior crimes.6
Whether this argument has merit is not something we need to get
into because even assuming it does, Romero-Galindez cannot prevail.
"If we find an alleged Guideline error would not have
affected the district court's sentence, we may affirm." United
States v. Marsh, 561 F.3d 81, 86 (1st Cir. 2009). In other words,
we think the alleged error harmless. United States v. McGhee, 651
F.3d 153, 158 (1st Cir. 2011) (citing Williams v. United States,
503 U.S. 193, 203 (1992)) ("'[O]nce the court of appeals has
decided that the district court misapplied the Guidelines, a remand
is appropriate unless the reviewing court concludes, on the record
as a whole, that the error was harmless, i.e., that the error did
not affect the district court's selection of the sentence
imposed.'"). The record, though, must make the innocuous nature of
the error unmistakable. See United States v. Ortiz, 741 F.3d 288,
294 (1st Cir. 2014); McGhee, 651 F.3d at 159.
6
The relevant provisions are U.S.S.G. § 4A1.1 and § 4A1.2,
which "are concerned with counting and weighing sentences of
imprisonment to establish a defendant's criminal history category,"
with one of the variables being whether the earlier offense was
committed prior to age eighteen and whether the defendant was
convicted as an adult. United States v. McGhee, 651 F.3d 153, 155-
56 (1st Cir. 2011).
-15-
It does just that here. As we said above, the judge was
explicit that he was not going to sentence Romero-Galindez
according to the Guidelines. The judge made this point pellucid
while delving into Romero-Galindez's criminal history. He noted
that the applicable criminal history category was VI and that
Romero-Galindez had in excess of thirteen criminal history points.
[App 100] The following exchange then took place:
THE COURT: He has in excess of 13; is that
correct? It doesn't really make any difference
because the Court is going to provide a
statutory sentence, not a guideline sentence.
THE PROBATION OFFICER: 14 points.
THE COURT: 14. So he gets off. He's off the
page. All right. But that's not important.
The sentencing judge made it apparent that Romero-Galindez's
criminal history category did not affect the ultimate sentence
imposed. Furthermore, the judge was firm in his thinking that the
Guidelines yielded too lenient of a sentence (more on this below).
We think it safe to assume that if the judge thought the punishment
too permissive at a criminal history category of VI, he would not
have gone for the even more permissive sentence imposed by the
supposedly correct category of IV. Indeed, the record suggests the
judge might not have found the category of IV to accurately reflect
Romero-Galindez's criminal history.
As such, assuming for the sake of argument that there was
some error in his criminal history calculation, the record reveals
-16-
that it did not alter the district court's sentence selection.
See, e.g., United States v. Tavares, 705 F.3d 4, 27-28 (1st Cir.
2013) (finding the district court's failure to choose between the
conflicting criminal history categories proffered by the government
and the defense was harmless error as the court made clear that the
Guidelines sentencing range was irrelevant to the sentence it was
going to hand down).
ii. Attention to the Guidelines
Citing the above dialogue where the sentencing judge
indicated that Romero-Galindez's criminal history points "d[id]n't
make a difference" and were "not important," Romero-Galindez claims
that the judge improperly disregarded the Sentencing Guidelines as
a jumping-off point.
Our case law instructs that the Guidelines "are simply
'the starting point and . . . initial benchmark' for crafting a
sentence." United States v. King, 741 F.3d 305, 308 (1st Cir.
2014) (quoting Gall, 552 U.S. at 49). While "a sentencing court
must 'give respectful consideration to the Guidelines, Booker
permits the court to tailor the sentence in light of other
statutory concerns as well.'" Pepper v. United States, 131 S. Ct.
1229, 1241 (2011) (quoting Kimbrough v. United States, 552 U.S. 85,
101 (2007)).
Here, the judge unambiguously indicated that he was not
going with a Guidelines sentence for a variety of reasons (more
-17-
fully discussed below). This is not the same as disregarding the
Guidelines as a starting point. At the sentencing hearing, the
judge distinctly went through the Guidelines computation, detailing
Romero-Galindez's base offense level, criminal history, status as
an armed career criminal, acceptance of responsibility, total
offense level, and guideline sentence range. The judge indicated
that he had reviewed the PSR and its Guidelines computations, as
well as the sentencing factors set forth in 18 U.S.C. § 3553. Far
from indicating inadequate attention to the Guidelines, the record
shows that the court considered the option presented by the
Guidelines (even if they may have been calculated incorrectly) and
then, for clearly enumerated reasons, rejected it as producing an
overly lenient sentence. This was an option well within its
prerogative to take.
iii. Sentencing Factors
Finally, Romero-Galindez criticizes the factors
considered by the sentencing judge in fashioning the twenty year
sentence, alleging that too much weight was placed on his previous
crimes and their corresponding sentence, as well as public
perception.7 We are unpersuaded.
7
Romero-Galindez, without elaboration, faults the district
court for not detailing the § 3553(a) factors. Even assuming the
argument developed enough to preserve, Romero-Galindez does not
prevail. An exhaustive sorting through the factors one by one is
not the approach demanded by our case law. United States v.
Aponte-Vellón, 754 F.3d 89, 94 (1st Cir. 2014).
-18-
A sentencing court's deviation from the Guidelines
"should typically be rooted either in the nature and circumstances
of the offense or the characteristics of the offender." Martin,
520 F.3d at 91; 18 U.S.C. § 3553(a)(1). The record reveals that
Romero-Galindez's sentence was grounded in both.
For one, the court honed in on the grave nature of the
offense Romero-Galindez had committed. The court reflected that
"this is a serious case because it is an AK-47, which is an
offensive weapon with a magazine of over 30 and 11 bullets within
the magazine." The court also focused on the serious nature of the
crimes of Romero-Galindez's youth. The court noted that, in
eighteen years, "I have never had a defendant come into my
courtroom with four murders."
While Romero-Galindez faults the court for highlighting
these crimes, claiming that the judge only emphasized the number of
previous convictions as opposed to the circumstances surrounding
them, the record belies his contention.8 The judge was clearly
8
Romero-Galindez very briefly alludes that the court's focus
on his previous crimes constituted impermissible double counting
since his base offense level was increased because of the prior
crimes. The double counting rubric seems a poor fit. He is not
alleging, for instance, that the same underlying facts were applied
via two separate Guideline provisions to set a base level and then
enhance a sentence. Rather Romero-Galindez's crimes were factored
into his base level (U.S.S.G. § 2K2.1(a)(1)) and then their
particular gravity considered by the court as a factor in
determining how stringent his non-Guideline sentence should be. In
any event, aside from stating that there has been impermissible
double counting and offering one unhelpful out of circuit case,
Romero-Galindez goes no further. Such perfunctory treatment waives
-19-
concerned with the serious nature of the earlier crimes, not just
that they numbered four. He underscored that the earlier misdeeds
were for first and second degree murder, including a carjacking,
and that all involved weapons. The fact that the current crime and
the previous ones all involved weapons demonstrated, for the judge,
the defendant's "proclivity towards weapons." Furthermore, the
court did not forget that the murders were committed over a dozen
years ago in Romero-Galindez's youth, rather it emphasized that
fact multiple times.
Romero-Galindez also avers that the court tried to
compensate for a perceived overly lenient state court sentence for
the four murders. We disagree. To start, as a general
proposition, there is nothing wrong with the court factoring a
generous prior sentence into the equation. As we have explained,
"a sentencing court may . . . consider whether, in a series of past
convictions, the punishment appears to fit the crime." United
States v. Flores-Machicote, 706 F.3d 16, 21 (1st Cir. 2013). "If
the court concludes that an asymmetry exists which results in a
substantial underestimation of the defendant's criminal history, it
may vary the sentence upward to reflect past leniency."9 Id. In
the issue. See Randall v. Laconia, NH, 679 F.3d 1, 5 (1st Cir.
2012).
9
A caveat: it would not be permissible if a district court
"explicitly fashioned a federal sentence in order to influence the
manner in which a sentence imposed by a local court was
implemented." United States v. Santiago-Rivera, 594 F.3d 82, 86
-20-
particular, the court may consider, as it seems to have done here,
whether the leniency of a past sentence led to the defendant's
recidivism such that a stronger sentence may now be required. Id.
at 22 & n.2.10
And though the judge stated a few times that "I cannot be
a softy," or something along those lines -- another thing Romero-
Galindez is not happy with -- we do not see a problem. The
sentencing transcript shows that the judge, as opposed to fretting
over public opinion, was concerned with the fact that a lenient or
so-called soft sentence would not serve as a general deterrent.
The judge repeatedly made this point, questioning what disincentive
value a statutory minimum sentence would have.11 The goal of
"afford[ing] adequate deterrence to criminal conduct," one of the
enumerated § 3553 factors, is a legitimate concern. 18 U.S.C. §
3553(a)(2)(B); see also Flores-Machicote, 706 F.3d at 23
(1st Cir. 2010).
10
Though the court expressed surprise that two of Romero-
Galindez's first degree murder charges had been reclassified to
second degree, likening it to a "miracle," the judge repeatedly
indicated that he respected the Puerto Rico court and was not
second guessing the route it went.
11
The judge stated of the recommended fifteen-year sentence:
"It is not a deterrent, because then it gives the image to everyone
else . . . my next case comes in, a murderer, four murders, and he
says, 'Judge, you remember Angel Romero-Galindez . . . He's got
four murders, Judge. One of them which was a murder and a
carjacking. And, you know, Judge, you know what you did? You gave
him the minimum.'" He went on, theorizing that the families of the
four murder victims might say: "Boy that judge is a softy. There's
no deterrence any more in the federal system because he gave him
the minimum, having four murders as a background to the AK-47."
-21-
("Deterrence is widely recognized as an important factor in the
sentencing calculus.").
That ends this aspect of the matter. Romero-Galindez had
a history of violent crimes and, upon impermissibly leaving the
state custody that those crimes landed him in, got his hands on an
AK-47. We scarcely think it was unreasonable for the district
judge to think a statutory minimum sentence was not adequate.
Sentences are not one size fits all, instead "there is almost
always a range of reasonable sentences for any given offense."
United States v. Santiago-Rivera, 744 F.3d 229, 234 (1st Cir. 2014)
(internal quotation marks omitted). Romero-Galindez's sentence
falls well within that range.
CONCLUSION
Discerning no error that would either invalidate Romero-
Galindez's plea, or require vacating his sentence, we affirm.
-22-