United States v. Lozada-Aponte , 689 F.3d 791 ( 2012 )

United States Court of Appeals
For the First Circuit
_____________________
No. 10-2487
UNITED STATES OF AMERICA,
Appellee,
v.
JOSEPH LOZADA-APONTE,
Defendant-Appellant.
_____________________
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. José A. Fusté, U.S. District Judge]
_______________________
Before
Boudin, Hawkins,* and Dyk,**
Circuit Judges.
______________________
Hector L. Ramos-Vega, Assistant Federal Public Defender, with
whom Hector E. Guzman, Jr., Federal Public Defender, was on brief
for Appellant.
Brian K. Kidd, Assistant United States Attorney. Rosa Emilia
Rodriguez-Velez, United States Attorney, Nelson Pérez-Sosa, Chief,
Appellate Section, United States Attorney’s Office, and Luke Cass,
Assistant United States Attorney, were on brief for Appellee.
*
Of the Ninth Circuit, sitting by designation.
**
Of the Federal Circuit, sitting by designation.
______________________
August 24, 2012
______________________
HAWKINS, Circuit Judge. Joseph Lozada-Aponte (“Lozada”)
appeals the 46-month sentence imposed following his guilty-plea
conviction for being a felon in possession of a firearm, in
violation of 18 U.S.C. § 922(g) in connection with his shipping an
assault rifle and pistol from Florida to Puerto Rico. We have
jurisdiction under 28 U.S.C. § 1291 and, applying this court’s
deferential abuse-of-discretion standard of review,1 affirm.
I. Upward Departure for Underrepresentation of Criminal History
In calculating the appropriate guideline sentencing
range, the district court applied a two-category upward departure
under U.S.S.G. § 4A1.3(a)(1), moving Lozada from criminal history
Category I to Category III. Central to the district court’s
decision to depart upward were Lozada’s three prior convictions,
including a 1988 conviction for attempted murder and armed violence
that resulted in a six-year prison sentence, and his long string of
1
The reasonableness of a sentence is reviewed “‘under a
deferential abuse-of-discretion standard.’” United States v.
Battle, 637 F.3d 44, 50 (1st Cir. 2011) (quoting Gall v. United
States, 552 U.S. 38, 41 (2007)).
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arrests and criminal charges in multiple jurisdictions since.2
Although the age of the three prior convictions resulted in zero
criminal history points under the default Sentencing Guidelines
formula, district courts have discretion to depart upward if
reliable information shows that a criminal history level
substantially underrepresents the seriousness of a defendant’s
criminal history or the likelihood that he would commit other
crimes in the future. U.S.S.G. § 4A1.3(a)(1).
While “a mere arrest, especially a lone arrest, is not
evidence that the person arrested actually committed any criminal
conduct,” we have previously suggested that an upward departure
from the guideline range may be appropriate for “a series of past
2
In addition to noting the three prior criminal convictions,
the district court observed that “[Lozada’s prior arrests] show a
pattern of human before me that for the past 20 years has been
involved in firearms illegally,” clearly referencing the arrest
record detailed in the presentence report (“PSR”). The PSR lists
1980s convictions for criminal damage to property, theft, and
attempted murder, and a series of arrests (usually nolle prosequied
or dismissed with leave to reinstate) for unlawful use of a weapon;
disorderly conduct; battery and aggravated assault; unlawful use of
a firearm by a felon, carry/possess firearm, and carry/possess
firearm in public; two more aggravated assault charges; and
stalking. A separate charge for attempted murder and weapons
offenses in 1999 resulted in a trial and acquittal.
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arrests” which “might legitimately suggest a pattern of unlawful
behavior even in the absence of any convictions.” United States v.
Zapete-Garcia, 447 F.3d 57, 60 (1st Cir. 2006). We see no reason
why a series of arrests could not also be considered as a basis for
departure due to underrepresentation of criminal history.
Here, Lozada’s frequent run-ins with law enforcement in
Florida, Illinois, and Puerto Rico, some of which apparently
involved firearms, were adequately suggestive of unlawful
misbehavior for the district court to determine that his 1988
conviction for a serious and violent crime should be viewed not as
a thing of the past but as indicative of a penchant for dangerous
criminality not typically associated with a Category I criminal
history. An upward departure was therefore reasonable.
II. Gun Violence in Puerto Rico and the Nature of the Weapons at
Issue
Unlike in United States v. Wallace, 461 F.3d 15, 42-43 (1st
Cir. 2006), the district court here, considering the entirety of
the sentencing colloquy, offered an adequate explanation why the
departure should be by two categories rather than one, noting the
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serious and violent nature of the 1988 conviction, the lengthy
sentence that followed, and the series of arrests that led right up
to shortly before the instant offense. In explaining the two-
category departure, the district judge mentioned as well the nature
of the weapons and the incidence of crime in Puerto Rico; and
although both are permissible considerations in varying from the
guidelines, neither, strictly speaking, reflects understated
criminal history.3 But the trial judge was pretty clearly using
the extent of departure as a loose way of identifying the range in
which he proposed to sentence the defendant after considering all
of the factors; and a remand to frame the matter using the rhetoric
of the guidelines would not alter the resulting sentence.
As for the choice of how far to enhance the sentence, we
explained in United States v. Politano, 522 F.3d 69, 74 (1st Cir.
2008), that “post-[United States v. Booker, 543 U.S. 220 (2005)],
3
See United States v. Gallardo-Ortiz, 666 F.3d 808, 815-16
(1st Cir. 2012) (affirming upward departure from guidelines
sentence resting in part on the high-power nature of the firearm);
United States v. Landry, 631 F.3d 597, 607 (1st Cir. 2011)
(affirming high-end-of-guidelines-range sentence resting in part on
a finding that identity fraud is a growing problem in Maine).
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it is now apparent that the district court has the discretion to
take into account all of the circumstances under which [the
defendant] committed the offense, including the particular
community in which the offense arose.”
III. Consideration of Mitigating Factors
Nor did the district court fail to balance the relevant
18 U.S.C. § 3553(a) mitigating factors, such as Lozada’s stable
family life. Though we require consideration of the § 3553(a)
factors, we do not require an express weighing of mitigating and
aggravating factors or that each factor be individually mentioned.
See United States v. Arango, 508 F.3d 34, 46 (1st Cir. 2007). The
potentially mitigating factors Lozada identifies on appeal were
thoroughly discussed in the presentence report; that the district
court did not explicitly mention them during the sentencing hearing
suggests they were unconvincing, not ignored. See United States v.
Martins, 413 F.3d 139, 154 (1st Cir. 2005) (“Nearly all the factors
to which the [defendant-appellant] alludes were limned in the
presentence investigation report, yet the district court chose not
to speak to them at sentencing. The inference is that the court
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was unimpressed.”).
CONCLUSION
For the foregoing reasons, the district court’s sentence
was reasonable and is affirmed.
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