United States v. Ruperto-Rivera ( 2021 )


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  •           United States Court of Appeals
    For the First Circuit
    No. 20-1817
    UNITED STATES OF AMERICA,
    Appellee,
    v.
    BENNY RUPERTO-RIVERA,
    Defendant, Appellant.
    APPEAL FROM THE UNITED STATES DISTRICT COURT
    FOR THE DISTRICT OF PUERTO RICO
    [Hon. Aida M. Delgado-Colón, U.S. District Judge]
    Before
    Howard, Chief Judge,
    Selya and Kayatta, Circuit Judges.
    Rafael Anglada-López on brief for appellant.
    W. Stephen Muldrow, United States Attorney, Mariana E. Bauzá-
    Almonte, Assistant United States Attorney, Chief, Appellate
    Division, and Robert P. Coleman III, Assistant United States
    Attorney, on brief for appellee.
    October 12, 2021
    SELYA,     Circuit     Judge.         In       this   appeal,       defendant-
    appellant Benny Ruperto-Rivera strives to persuade us that the
    district court overemphasized aggravating factors and overlooked
    mitigating factors when fashioning his sentence.                            Although the
    appellant is less than precise as to whether he intends to mount
    a   claim    of      procedural      error       or     a     claim    of    substantive
    unreasonableness, that lack of precision makes no difference here:
    whether     viewed     in   terms   of     procedural        error     or   in    terms   of
    substantive       reasonableness,          his    arguments          are    unconvincing.
    Consequently, we affirm the challenged sentence.
    I. BACKGROUND
    We briefly rehearse the relevant facts and travel of the
    case.   Where, as here, "a sentencing appeal follows a guilty plea,
    'we glean the relevant facts from the change-of-plea colloquy, the
    unchallenged portions of the presentence investigation report (PSI
    Report), and the record of the disposition hearing.'"                                United
    States v. Dávila-González, 
    595 F.3d 42
    , 45 (1st Cir. 2010) (quoting
    United States v. Vargas, 
    560 F.3d 45
    , 47 (1st Cir. 2009)).
    On   an    unknown     date    in    2018,       four    individuals     were
    captured in a video, pointing firearms at a fifth individual and
    threatening to shoot him.                The firearms depicted in the video
    included two handguns, a third handgun with an extended magazine,
    and a rifle with a drum magazine.                Following an investigation, one
    of the four individuals was identified as the appellant — a
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    previously convicted felon — who was shown in the video holding a
    Glock pistol.
    On September 20, 2018, a federal grand jury sitting in
    the District of Puerto Rico returned an indictment, which — as
    relevant here — charged the appellant, then age 28, with possession
    of a firearm and ammunition by a convicted felon.           See 
    18 U.S.C. §§ 922
    (g)(1),    924(a)(2).         Although   the   appellant   initially
    maintained his innocence, he reversed course on March 29, 2019 and
    moved for leave to enter a guilty plea.         The district court later
    accepted his guilty plea, and a PSI Report was prepared.          Based on
    a total offense level of seventeen and a criminal history category
    of IV, the appellant's guideline sentencing range (GSR) was thirty-
    seven to forty-six months.      Neither party objected to any portion
    of the PSI Report.
    At the disposition hearing, defense counsel lamented
    that the appellant "ha[d] not had an exemplary upbringing."            She
    added that the appellant "ha[d] spent most of his young adult years
    in the state penitentiaries" and argued that "long-term punishment
    and   incarceration   [do]    not    necessarily     rehabilitate[]   young
    persons."   Because "more incarceration w[ould] not improve or help
    anything," she advocated for the appellant's release under the
    supervision of the probation office.
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    The appellant allocuted.         He stated that he had made a
    "mistake" and asked the court for "an opportunity so that [he] can
    prove that [he's] ready to move on with [his] life, to be better."
    The government had a different view of the matter.
    Noting   that   the   appellant's    "criminal   record    reflect[ed]   an
    escalation" in criminal activity, the prosecutor requested a term
    of immurement of thirty-seven months.
    The sentencing court began by addressing the appellant's
    statement that he had made a "mistake."          The court recounted the
    appellant's criminal history, pointed out the short time lapse
    between the appellant's release from prison and his involvement in
    the charged offense, and described that offense.                 The court
    observed   that   "[t]hese   type[s]     of   offenses    are   not   simply
    mistakes . . . they are called crimes."          It went on to say that
    "making threats against the life of individuals is a very serious
    offense . . . [a]nd the type of weapons is quite serious."
    After determining that the GSR was properly calculated,
    the court proceeded to consider the factors limned in 
    18 U.S.C. § 3553
    (a). The court discussed a wide array of subjects, including
    the appellant’s age, education level, health, employment record,
    substance-use history, and criminal past.         Next, it confirmed its
    familiarity with the facts of the offense of conviction.                "And
    after balancing all [the] factors," the court concluded that a
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    forty-six-month term of immurement was a condign punishment and
    imposed an incarcerative sentence of that length.
    Defense counsel immediately requested reconsideration of
    the sentence imposed due to what she deemed as the court's reliance
    on dismissed criminal conduct (specifically, past arrests for
    first-degree murder and a weapons violation).       The court responded
    that it had made clear that those charges had been dismissed and
    that the appellant was a convicted felon by reason of a prior "drug
    charge[]" — a charge that had ripened into a conviction.         Replying
    to defense counsel's comment that she "d[id]n't want to figure out
    that the Court see[s the appellant] as a murderer or a person who
    used to use weapons in the past," the court said that it "ha[d]
    not considered the murder at all."        The court added that it "ha[d]
    [partly] imposed the sentence based on what is perceived to be
    [the appellant's] prognosis for rehabilitation."       Accordingly, the
    motion   for   reconsideration   was   denied.     This   timely   appeal
    followed.
    II. ANALYSIS
    "Appellate review of claims of sentencing error entails
    a two-step pavane."     United States v. Matos-de-Jesús, 
    856 F.3d 174
    , 177 (1st Cir. 2017).        Under this bifurcated framework, we
    first examine any claims of procedural error.          See 
    id.
         If the
    sentence is procedurally sound, we then examine any claim of
    substantive unreasonableness.      See 
    id.
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    In the case at hand, the appellant is less than precise
    as to whether he wishes to mount a claim of procedural error, a
    claim of substantive unreasonableness, or both.      In an abundance
    of caution, we inspect his claims, where applicable, through both
    lenses.
    A.    The Procedural Lens.
    The appellant's flagship claim is that the district
    court "failed to adequately balance the sentencing factors."       He
    identifies two ways in which the court allegedly blundered. First,
    he submits that the court erred by considering dismissed criminal
    conduct and "plac[ing] too much weight on" it.     Second, he submits
    that the court "disregarded the mitigating factors."          Viewed
    through the lens of procedural error, neither claim gains him any
    traction.
    At the disposition hearing, the appellant voiced his
    objection to the sentencing court's alleged reliance on dismissed
    charges.    Thus, we review his first claim of error for abuse of
    discretion.    See United States v. Díaz-Lugo, 
    963 F.3d 145
    , 151
    (1st Cir. 2020).   We discern none.
    The appellant's contention that the sentencing court
    impermissibly "considered" dismissed criminal conduct is little
    more than gaslighting.     Perscrutation of the sentencing transcript
    makes pellucid that the sentencing court did nothing more than
    recite the appellant's arrest record (including dismissed criminal
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    charges) as it narrated his criminal history.           Such a reading is
    consistent with the court's explicit statement that it "ha[d] not
    considered the murder at all."         A defendant's criminal record is
    a part of his history, and a sentencing court does not abuse its
    discretion simply by chronicling that record (without attaching
    any weight to mere arrests or dismissed charges).               See United
    States v. Santa-Soler, 
    985 F.3d 93
    , 96-97 (1st Cir. 2021) (holding
    that "sentencing court's mere mention of a defendant's arrest
    record as a matter of historical fact, without more, does not
    constitute an abuse of discretion"); cf. United States v. Vélez-
    Andino, ___ F.4th ___, ___ (1st Cir. 2021) [No. 19-1300, slip op.
    at 9] (finding no plain error in sentencing court's "unadorned
    recitation of matters of historical fact," including dismissed
    criminal charges).
    The appellant's second claim of error fares no better.
    To begin, this claim — that the sentencing court disregarded
    mitigating factors — is raised for the first time on appeal and,
    thus, engenders only plain-error review.            See United States v.
    Duarte, 
    246 F.3d 56
    , 60 (1st Cir. 2001).
    "The plain error hurdle is high."            United States v.
    Hunnewell, 
    891 F.2d 955
    , 956 (1st Cir. 1989).            The proponent of
    plain error must carry the devoir of persuasion as to each of "four
    showings:    (1) that an error occurred (2) which was clear or
    obvious   and   which   not   only    (3)    affected   the   [appell]ant's
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    substantial rights, but also (4) seriously impaired the fairness,
    integrity, or public reputation of judicial proceedings."            Duarte,
    
    246 F.3d at 60
    .     Here, our review starts — and ends — at the first
    step because the appellant cannot show that any error occurred.
    "[T]he sentencing inquiry . . . ideally is broad, open-
    ended, and significantly discretionary."            United States v. Martin,
    
    520 F.3d 87
    , 92 (1st Cir. 2008).             Once a sentencing court has
    properly   calculated     a   defendant's    GSR,    "sentencing   becomes    a
    judgment call."     
    Id.
         Although the court must consider all of the
    relevant factors limned in 
    18 U.S.C. § 3553
    (a), it need not give
    every factor equal weight.          See United States v. Dixon, 
    449 F.3d 194
    , 205 (1st Cir. 2006).            And when explicating the sentence
    imposed, the court "is not required to address [the sentencing]
    factors, one by one, in some sort of rote incantation."             
    Id.
         Nor
    is the court required "to explain why it eschewed other suggested
    sentences."   United States v. Vega-Salgado, 
    769 F.3d 100
    , 104 (1st
    Cir. 2014).      It is enough for the "court simply to identify the
    main   factors    driving     its   determination."      United    States    v.
    Sepúlveda-Hernández, 
    817 F.3d 30
    , 33 (1st Cir. 2016).
    Here, the record makes manifest that the sentencing
    court considered all the relevant section 3553(a) factors.            Indeed
    — after hearing arguments from both sides — the court expressly
    acknowledged its obligation to           mull those factors.         It then
    referred to a number of the factors and proceeded to elaborate on
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    the appellant’s background, criminal history, and participation in
    the offense of conviction.           Summing up, the court confirmed that
    it had "balanc[ed] all [the] factors" — and such a statement "is
    entitled to some weight."         Dávila-González, 595 F.3d at 49.
    The appellant's contention that the court "disregarded"
    mitigating factors is not supported by the record.              The point most
    vigorously pressed by defense counsel at the disposition hearing
    was rehabilitation.        The court dealt explicitly with this point.
    In fact, it stated that it had, in part, "imposed the sentence
    based on what is perceived to be [the appellant's] prognosis for
    rehabilitation."         That the court did not explain in exquisite
    detail why it chose to afford relatively little weight to the
    factors that the appellant advanced in mitigation is not the sort
    of   stuff   out    of   which   a   claim    of   sentencing   error    can   be
    constructed.       See United States v. Sayer, 
    916 F.3d 32
    , 38-39 (1st
    Cir.) (observing that "courts are not required to specifically
    explain why they rejected a particular defense argument in favor
    of a lower sentence"), cert. denied, 
    139 S. Ct. 2731
     (2019).
    Stripped     of   rhetorical     flourishes,   the   appellant's
    plaint that the sentencing court undervalued mitigating factors
    seems to be another way of saying that the court did not share
    defense counsel's view of the salience of those factors.                In other
    words, the plaint boils down to a lament that the court did not
    weigh the aggravating and mitigating factors as counsel would have
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    preferred.    Seen in this light, the appellant's claim, in effect,
    asks us to elevate his counsel's appraisal of the mitigating
    factors over that of the sentencing court.      The law does not permit
    us so blithely to displace a sentencing court's exercise of its
    discretion.
    After all, it is "[t]he sentencing court's task [] to
    sift the available information and balance the pertinent factors."
    United States v. Madera-Ortiz, 
    637 F.3d 26
    , 32 (1st Cir. 2011).
    The   weighing   of   sentencing   factors   "represent[s]    a    judgment
    call . . . for the sentencing court" alone to make.          
    Id.
        Because
    the court below did not abuse its discretion in balancing the
    section 3553(a) factors in a manner that it reasonably deemed
    appropriate, the appellant's claim cannot succeed on plain-error
    review.
    B.   The Substantive Lens.
    Next, we view the challenged sentence through a more
    substantive lens.     With respect to the substantive reasonableness
    of a sentence, our review is for abuse of discretion.        See Holguin-
    Hernandez v. United States, 
    140 S. Ct. 762
    , 766 (2020); United
    States v. Bruno-Campos, 
    978 F.3d 801
    , 808 (1st Cir. 2020).
    "In the sentencing context, 'reasonableness is a protean
    concept.'"    United States v. Clogston, 
    662 F.3d 588
    , 592 (1st Cir.
    2011) (quoting Martin, 
    520 F.3d at 92
    ).      Consequently, "[t]here is
    no one reasonable sentence in any given case but, rather, a
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    universe of reasonable sentencing outcomes."          
    Id.
       Our task, then,
    is "to determine whether the [challenged] sentence falls within
    this broad universe."      United States v. Rivera-Morales, 
    961 F.3d 1
    , 21 (1st Cir. 2020).      In making this determination, "we cannot
    substitute our judgment of the appropriate sentence for that of
    the sentencing court; to the contrary, we must accord significant
    deference to the court’s informed determination that the section
    3553(a) factors justify the sentence imposed."           
    Id.
    When all is said and done, "a sentence is substantively
    reasonable so long as the sentencing court offers a plausible
    rationale and the sentence represents a defensible result."              
    Id.
    Thus, we measure the sentence imposed on the appellant against
    this benchmark.
    In    this     instance,    the   sentencing      court    lucidly
    articulated its sentencing rationale.          The court addressed the
    appellant’s    age,    education   level,   health,    employment    record,
    substance-use history, and criminal past.         It also addressed his
    participation in the offense of conviction.           The court noted that
    "making threats against the life of individuals is a very serious
    offense . . . [a]nd the type of weapons is quite serious."              What
    is more, the court found it significant that the appellant engaged
    in the offense "shortly after" being released from prison.            In the
    court’s estimation, the appellant’s commission of the offense of
    conviction could not be written off as a mere "mistake."            Finally,
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    the court determined that a forty-six-month prison sentence — a
    sentence at the top of, but within, the GSR — was appropriate.
    The sentence imposed was a logical culmination of the
    sentencing court's juxtaposition and evaluation of the relevant
    sentencing factors.       We therefore find its sentencing rationale
    plausible.
    So,    too,    the   challenged    sentence    constitutes     a
    defensible result.       The district court thoroughly considered the
    relevant section 3553(a) factors.       The court took particular note
    of the appellant's threat to kill.         And as the court pointed out,
    the appellant's conduct was all the more worthy of reproof because
    that conduct occurred soon after his release from prison.               See
    Vélez-Andino, ___ 4th at ___ [No. 19-1300, slip op. at 18] (finding
    sentence defensible when, among other things, defendant engaged in
    offense   of   conviction   "[l]ess   than   three   months   after   being
    released from prison").
    We have said before — and today reaffirm — that "[a]
    challenge directed at substantive reasonableness is usually a
    heavy lift, and reversal is 'particularly unlikely when . . . the
    sentence imposed fits within the compass of a properly calculated
    [GSR]."   United States v. Ruiz-Huertas, 
    792 F.3d 223
    , 228-29 (1st
    Cir. 2015) (second alteration in original) (quoting Vega-Salgado,
    769 F.3d at 105); see Clogston, 
    662 F.3d at 592-93
    .           On the facts
    of this case, the appellant cannot accomplish that heavy lift:
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    the sentencing outcome is entirely defensible.             Cf. Clogston, 
    662 F.3d at 593
     ("That the sentencing court chose not to attach to
    certain   of    the     mitigating   factors   the   significance      that   the
    appellant      thinks    they   deserved   does   not   make   [his]   sentence
    unreasonable.").
    III. CONCLUSION
    We need go no further. For the reasons elucidated above,
    the challenged sentence is
    Affirmed.
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