United States v. Caballero-Vazquez , 896 F.3d 115 ( 2018 )

United States Court of Appeals
For the First Circuit
Nos. 17-1144, 17-1247
UNITED STATES OF AMERICA,
Appellee,
v.
JOSHUAN DAVID CABALLERO-VÁZQUEZ,
Defendant, Appellant.
APPEALS FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Francisco A. Besosa, U.S. District Judge]
[Hon. Carmen Consuelo Cerezo, U.S. District Judge]
Before
Torruella, Thompson, and Kayatta,
Circuit Judges.
Johnny Rivera-González and Johnny Rivera's Law Office, on
brief for appellant.
Mainon A. Schwartz, Assistant United States Attorney, Rosa
Emilia Rodríguez-Vélez, United States Attorney, and Mariana E.
Bauzá-Almonte, Assistant United States Attorney, Chief, Appellate
Division, on brief for appellee.
July 18, 2018
TORRUELLA, Circuit Judge. After pleading guilty in two
separate cases, Joshuan David Caballero-Vázquez was sentenced
first for possessing ammunition as a convicted felon (the "Felon
in Possession Case") and then for possessing a machine gun (the
"Machine Gun Case"). In this consolidated appeal, he now
challenges both of those sentences on procedural and substantive
grounds. We affirm both sentences.
I. Background
We begin with an overview of the intertwined factual and
procedural events leading up to this appeal. Because this appeal
follows two different guilty pleas, we draw the facts from the
plea agreements, change-of-plea colloquies, presentence
investigation reports (PSRs), and sentencing hearings in both
cases. See United States v. Reyes-Rivera, 812 F.3d 79, 82 (1st
Cir. 2016).
A.
We start with the facts giving rise to the Machine Gun
Case. On March 7, 2015, an officer from the Manatí, Puerto Rico
Municipal Police stopped Caballero-Vázquez after observing him
drive a Ford Edge against traffic, and then up onto the sidewalk.
After asking Caballero-Vázquez for his license and registration,
the officer noticed that the registration information Caballero-
Vázquez provided did not match the number on the vehicle's
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registration sticker. Suspecting a false registration sticker,
the officer seized both Caballero-Vázquez and the Ford Edge and
brought them to the Manatí Municipal Police Station. There, an
inventory search of the vehicle yielded a loaded Glock .40 caliber
pistol that had been modified to function as a machine gun.
Moreover, a database search using the Glock's serial number would
later reveal that it had been reported as stolen from the residence
of its legal owner.
A grand jury returned a one-count indictment against
Caballero-Vázquez for possessing a machine gun. See 18 U.S.C.
§§ 922(o), 924(a)(2). On September 2, 2015, Caballero-Vázquez,
after entering into a type-B plea agreement with the government,
pleaded guilty to that count. See Fed. R. Crim. P. 11(c)(1)(B).
The parties jointly calculated a guidelines range to serve as the
basis for the plea agreement's sentencing recommendation. They
began with a base offense level of 18, see U.S.S.G. § 2K2.1(a)(5),
but then subtracted three levels because Caballero-Vázquez had
accepted responsibility, see id. § 3E1.1, thereby arriving at an
adjusted offense level of fifteen. The parties did not stipulate
to any particular Criminal History Category (CHC). The parties
then agreed to recommend that the district court sentence
Caballero-Vázquez to a term of imprisonment at the lower end of
whatever it ultimately determined to be the applicable guidelines
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range. Caballero-Vázquez agreed to waive his right to appeal if
he received a sentence in accordance with the plea agreement's
recommendation.
The United States Probation Office then prepared a PSR,
which differed from the parties' guidelines calculations in only
one respect. The PSR added two levels because the firearm in
question had been reported stolen, see id. § 2K2.1(b)(4), resulting
in a total offense level of 17. The PSR assigned Caballero-Vázquez
a criminal history score of zero. Caballero-Vázquez objected to
the stolen-gun enhancement on the grounds that neither the
indictment nor the plea agreement discussed the gun having been
stolen. The government did not oppose that objection, consistent
with the plea agreement's provision that neither party would seek
additional offense-level enhancements or deductions.
B.
The facts of the Felon in Possession Case are these.
While his objection to the stolen-gun enhancement in the Machine
Gun Case was pending, officers from the Puerto Rico Police
Department on patrol in Manatí spotted Caballero-Vázquez -- who
had been released on bail -- driving a Hyundai Tucson that matched
the description of a vehicle that had been reported stolen. The
officers attempted to stop Caballero-Vázquez, but he did not
acquiesce, and instead drove off. Reinforcements arrived and
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blocked his path. Caballero-Vázquez pointed a gun at one of the
vehicles blocking his way, and then proceeded to lead the officers
on a high-speed chase through Manatí. Ultimately, Caballero-
Vázquez abandoned his vehicle, leaving the keys in the ignition
and the door open, and fled on foot. Officers discovered five .40
caliber bullets in the abandoned vehicle's cup holder. Caballero-
Vázquez was later arrested at his residence in Manatí.
A grand jury returned an indictment charging Caballero-
Vázquez with possessing ammunition as a person convicted of a crime
punishable by a term of imprisonment exceeding one year -- his
guilty plea in the Machine Gun Case supplying the predicate
conviction. See 18 U.S.C. § 922(g)(1). As in the Machine Gun
Case, he pleaded guilty after negotiating a type-B plea agreement
with the government. Calculating the guidelines range for this
plea agreement, the parties started with a base offense level of
14, see U.S.S.G. § 2K2.1(a)(6), added three levels because
Caballero-Vázquez committed the underlying offense while on
release, see id. § 3C1.3, but then subtracted three levels because
Caballero-Vázquez had accepted responsibility, see id. § 3E1.1.
The parties did not stipulate a CHC, but agreed to recommend a
sentence of imprisonment at the middle of the applicable guidelines
range "for a total adjusted offense level of 14, combined with
[Caballero-Vázquez's CHC] as determined by the Court."
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Caballero-Vázquez also agreed to waive his right to appeal so long
as the district court accepted the recommendation contained in the
plea agreement.
The PSR for the Felon in Possession Case likewise
differed from the plea agreement in only one respect. It added a
two-level enhancement because Caballero-Vázquez "recklessly
created a substantial risk of death or serious injury to another
person in the course of fleeing from law enforcement officers."
See id. § 3C1.2.
C.
Caballero-Vázquez received his sentence in the Felon in
Possession Case first. The district court accepted the PSR's
guidelines calculations and found Caballero-Vázquez to be in
CHC I, resulting in an advisory sentencing range of twenty-one to
twenty-seven months. The district court expressed its belief,
however, that the parties' recommended sentence was too lenient.
The district court therefore varied upwardly to sentence
Caballero-Vázquez to forty-eight months' imprisonment. It then
split that sentence into a thirty-six-month sentence for the
underlying offense, and a twelve-month sentence for having
committed that offense while on release. See U.S.S.G. § 3C1.3
cmt. 1 (explaining that, to comply with 18 U.S.C. § 3147,
sentencing courts "should divide the sentence . . . between the
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sentence attributable to the underlying offense and the sentence
attributable to the enhancement").
Sentencing in the Machine Gun Case then took place. The
district court ultimately sustained Caballero-Vázquez's objection
to the two-level stolen-gun enhancement. An addendum to the PSR
thus eliminated that enhancement, but added three criminal history
points to reflect the outcome of the Felon in Possession Case.
This put Caballero-Vázquez in CHC II. The district court adopted
the plea agreement's guidelines calculation, which, when combined
with Caballero-Vázquez's new CHC, resulted in a range of twenty-
one to twenty-seven months. Finding a higher-end guidelines
sentence to be appropriate, the district court imposed a sentence
of twenty-seven months' imprisonment, to be served consecutively
with Caballero-Vázquez's sentence in the Felon in Possession Case.
Caballero-Vázquez now challenges his sentences in both
cases.
II. Analysis
Caballero-Vázquez and the government both agree that his
appellate waivers are unenforceable because, despite what the plea
agreements recommended, he did not receive a lower-end guidelines
sentence in the Machine Gun Case, and his sentence in the Felon in
Possession case was not based on a total offense level of fourteen.
Those waiver provisions, therefore, do not prevent us from
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considering the procedural and substantive challenges that
Caballero-Vázquez now brings.
A.
We begin with Caballero-Vázquez's claims of procedural
unreasonableness. "[S]ignificant procedural error[s]" include
"failing to calculate (or improperly calculating) the Guidelines
range, treating the Guidelines as mandatory, failing to consider
the § 3553(a) factors, selecting a sentence based on clearly
erroneous facts, or failing to adequately explain the chosen
sentence-including an explanation for any deviation from the
Guidelines range." United States v. Martin, 520 F.3d 87, 92 (2008)
(quoting Gall v. United States, 552 U.S. 38, 51 (2007)).
The government contends that -- because Caballero-
Vázquez failed to raise any procedural objections below -- we must
review only for plain error. Caballero-Vázquez's appellate brief
does not make any explicit arguments about the proper standard of
review. Nonetheless, even if we assume that Caballero-Vázquez
should benefit from a more favorable standard of review than plain
error, his procedural challenges still fail. In considering these
challenges -- consistent with our assumption that plain error
review is not warranted here -- we review the sentencing courts'
interpretation and application of the guidelines de novo, their
factual findings for clear error, and their "judgment calls" for
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abuse of discretion. United States v. Ruiz-Huertas, 792 F.3d 223,
226 (1st Cir. 2015).
1.
Caballero-Vázquez first challenges both sentencing
courts' use of the factors that 18 U.S.C. § 3553(a) sets forth,
which are, by that provision's own terms, "to be considered in
imposing a sentence." Here, both courts were explicit about
having arrived at their sentencing decisions after considering the
§ 3553(a) factors. Those statements are "entitled to significant
weight." United States v. Santiago-Rivera, 744 F.3d 229, 233 (1st
Cir. 2014). But, Caballero-Vázquez presses that both sentencing
courts unduly focused only on the negative factors. Claims of
this sort face an uphill battle. "Decisions [that involve
weighing the § 3553(a) factors] are within the sound discretion of
sentencing courts, and we 'will not disturb a well-reasoned
decision to give greater weight to particular sentencing factors
over others.'" United States v. Santini-Santiago, 846 F.3d 487,
492 (1st Cir. 2017) (quoting United States v. Gibbons, 553 F.3d
40, 47 (1st Cir. 2009)).1
1 Caballero-Vázquez has not specified whether the sentencing
courts' purported failure to consider mitigating factors goes to
the procedural or substantive reasonableness of his sentences.
The government treats these arguments as relevant to procedural
reasonableness. We note that our precedent is less-than-clear as
to whether a sentencing court's weighing of mitigating factors
implicates procedural or substantive reasonableness. For example,
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It is true that both sentencing courts emphasized the
factors they found to cut in favor of a harsher sentence. In the
Felon in Possession Case, the district court noted that Caballero-
Vázquez had pointed a gun at a police officer, and then led
officers on a high speed chase against the flow of traffic, which
placed innocent bystanders at risk. Likewise, in the Machine Gun
Case, the sentencing court highlighted "the serious nature of the
offense of conviction, which involved the possession of a machine
gun," and also noted that Caballero-Vázquez committed another
offense while on release. Nonetheless, both sentencing courts
also expressly considered potential mitigating factors. In the
Felon in Possession Case, the court made reference to Caballero-
Vázquez having completed a GED, being employed, having one
both Santini-Santiago, and Alejandro-Rosado regard challenges of
this sort as procedural reasonableness challenges, but in
analyzing them, cite cases that address them as substantive
reasonableness challenges. See Santini-Santiago, 846 F.3d at 489,
492 (quoting Gibbons, 553 F.3d at 47); United States v. Alejandro-
Rosado, 878 F.3d 435, 439 (1st Cir. 2017) (citing United States v.
Vargas-García, 794 F.3d 162, 167 (1st Cir. 2015)); cf. United
States v. Ruiz-Huertas, 792 F.3d 223, 227 (1st Cir. 2015) (finding
no procedural error when "the defendant's real complaint is not
that the court failed to consider the section 3553(a) factors, but
that the court did not assign the weight to certain factors that
the defendant thought appropriate"). But see Gall, 552 U.S. at
57-59 (treating the district court's weighing of mitigating
factors as relevant to substantive reasonableness). We need not
decide how to properly characterize such arguments here, though,
because our assumed standard of review for Caballero-Vázquez's
procedural and substantive reasonableness challenges is abuse of
discretion. See supra § II.A; infra § II.B.
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dependent, and having a history of using controlled substances.
And in the Machine Gun Case, the sentencing court noted that
Caballero-Vázquez "has a baby daughter," had completed a GED, was
employed prior to his arrest, and has a history of substance abuse.
We discern no error. "Though the district court's
consideration was unfavorable to the defendant, the fact that it
weighed some factors more heavily than others does not amount to
procedural error." Alejandro-Rosado, 878 F.3d at 439 (citing
United States v. Vargas-García, 794 F.3d 162, 167 (1st Cir. 2015));
see also United States v. Cruz-Vázquez, 841 F.3d 546, 550 (1st
Cir. 2016). Moreover, to the extent that Caballero-Vázquez
protests that the sentencing courts glossed over certain
mitigating factors included in the PSRs -- e.g., that his
biological father died before his birth, or that his mother and
step-father suffered from depression and anxiety -- those
arguments are similarly unavailing. See United States v. Lozada-
Aponte, 689 F.3d 791, 793 (1st Cir. 2012) ("The potentially
mitigating factors [the defendant] 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.").
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2.
Caballero-Vázquez's challenges to the calculation of his
CHC in both cases also fail, as neither CHC calculation was the
product of error. When Caballero-Vázquez was sentenced in the
Felon in Possession Case -- though still awaiting his sentence in
the Machine Gun Case -- he had nonetheless already pleaded guilty
to possessing a machine gun. As a result, the sentencing court
properly counted that offense towards his CHC. See U.S.S.G.
§ 4A1.2(a)(4) ("Where a defendant has been convicted of an offense,
but not yet sentenced, such conviction shall be counted as if it
constituted a prior sentence under § 4A1.1(c) if a sentence
resulting from that conviction otherwise would be countable.").
Thus, we find no error in Caballero-Vázquez's resulting criminal
history score of one, which put him in CHC I. See id. §§ 4A1.1(c),
5A. Nor did the sentencing court in the Machine Gun case
miscalculate Caballero-Vázquez's CHC. It correctly found that
Caballero-Vázquez's sentence in the Felon in Possession Case
corresponded to an additional three criminal history points, which
put him in CHC II. See id. §§ 4A1.1(a), 5A.
3.
Caballero-Vázquez's final procedural challenge involves
the determination of the sentencing court in the Machine Gun Case
that he should serve his sentence in that case consecutively to
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his sentence in the Felon in Possession case. But that decision,
as Caballero-Vázquez acknowledged before the district court and in
his appellate brief, is discretionary in nature. See United
States v. Carrasco-De-Jesús, 589 F.3d 22, 27 (1st Cir. 2009).
18 U.S.C. § 3584(b) instructs courts to consider the § 3553(a)
factors in deciding whether a sentence should run concurrently and
consecutively. And here, our recognition that the court in the
Machine Gun Case properly considered those factors in fashioning
Caballero-Vázquez's sentence also leads us to conclude that it did
not abuse its discretion in imposing that sentence consecutively.
B.
We now turn to Caballero-Vázquez's insistence that his
high-end guidelines sentence in the Machine Gun Case and his
upwardly variant sentence in the Felon in Possession case were
both substantively unreasonable. Here too, we can assume that our
standard of review is for abuse of discretion. See Vargas-García,
794 F.3d at 167 (observing that "most courts hold that an objection
in the district court is not needed to preserve a claim that a
sentence is substantively unreasonable" and assuming that abuse of
discretion is the proper standard) (citing Ruiz-Huertas, 792 F.3d
at 228). We have recognized that "[t]he hallmarks of a
substantively reasonable sentence are 'a plausible sentencing
rationale and a defensible result.'" United States v. Zapata-
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Vázquez, 778 F.3d 21, 24 (1st Cir. 2015) (quoting Martin, 520 F.3d
at 96). Both of the sentences at issue here exhibit these
features.
In the Felon in Possession Case, the court found an
upward variance justified, among other reasons, because Caballero-
Vázquez was on release when he committed the offense, and because
he had pointed a gun at an officer while attempting to avoid
apprehension. In the Machine Gun Case, the district court found
a sentence at the upper end of the applicable guidelines range to
be appropriate, among other reasons, in light of the facts of the
Felon in Possession Case. These sentencing rationales do strike
us as plausible. See id. And whether we take both of them
individually or analyze them together, we cannot avoid the
conclusion that Caballero-Vázquez's consecutive twenty-seven and
forty-eight month sentences both occupy "the expansive universe of
substantively reasonable sentences." United States v. Matos-De-
Jesús, 856 F.3d 174, 180 (1st Cir. 2017).
III. Conclusion
Because Caballero-Vázquez's procedural and substantive
challenges to his sentences fail, we affirm both sentences.
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