United States v. Mangual-Rosado , 907 F.3d 107 ( 2018 )

United States Court of Appeals
For the First Circuit
No. 17-1726
UNITED STATES OF AMERICA,
Appellee,
v.
VICTOR M. MANGUAL-ROSADO,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Carmen Consuelo Cerezo, U.S. District Judge]
Before
Torruella, Kayatta, and Barron,
Circuit Judges.
Luis A. Guzmán Dupont 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.
October 26, 2018
BARRON, Circuit Judge. Victor M. Mangual-Rosado
("Mangual") pleaded guilty to one count of possessing a firearm
while being an unlawful user of a controlled substance. He now
appeals his sentence of 30 months' imprisonment on the grounds
that it was procedurally and substantively unreasonable. For the
reasons that follow, we affirm.
I.
On November 2, 2016, Mangual was indicted in the District
of Puerto Rico for possession of a firearm and ammunition by an
unlawful user of a controlled substance in violation of 18 U.S.C.
§ 922(g)(3) and § 924(a)(2). Mangual does not dispute that, a
week earlier, Puerto Rico Police Department officers had found
Mangual sleeping on the couch at his friend's residence in
possession of a Bushmaster rifle loaded with a large-capacity
magazine and 30 rounds of .223 caliber ammunition. Pursuant to a
plea agreement that Mangual signed on January 10, 2017, he pleaded
guilty to knowingly and unlawfully possessing a firearm and
ammunition while being an unlawful drug user and agreed to forfeit
the rifle and ammunition. Mangual also agreed to a waiver-of-
appeal provision.
II.
The government argues that the appeal waiver bars
Mangual from appealing his sentence because the District Court
imposed a sentence "within the bottom to middle of the applicable
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guideline range[,]" and the plea agreement's waiver of appeal
contemplated a sentence "in accordance with the terms and
conditions set forth in the Sentence Recommendation provisions of
this Plea Agreement." To this point, the government notes that
the Sentence Recommendation provision of the plea agreement stated
"that [the] defendant may request a sentence of imprisonment at
the bottom of the applicable Guidelines range and that the
Government may request a sentence of imprisonment up to the middle
of the applicable Guidelines range."
The sentence did fall within the bottom to middle of the
sentencing guidelines range on which the District Court relied.
The record shows, however, that the District Court did not use the
same guidelines range that the parties used in making their
sentencing recommendations in the plea agreement. Nevertheless,
Mangual does not argue in his opening brief that the appeal waiver
does not bar his appeal here. Nor, for that matter, does Mangual's
argument refer to the appeal waiver at all. In fact, even though
the government contends in its brief on appeal that the waiver to
which Mangual agreed does bar his appeal of the sentence, Mangual
also did not file a reply brief.
These failures are quite problematic for Mangual. We
have made clear that "[w]here . . . the defendant simply ignores
the waiver and seeks to argue the appeal as if no waiver ever had
been executed, he forfeits any right to contend either that the
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waiver should not be enforced or that it does not apply." United
States v. Miliano, 480 F.3d 605, 608 (1st Cir. 2007).
But, we need not rely on the appeal waiver to dispense
with Mangual's appeal. Even if we do consider the merits of his
challenges to the sentence, those challenges fail.
III.
We begin with Mangual's four procedural challenges to
the reasonableness of his sentence. As Mangual concedes that he
did not raise any of these challenges below, our review is only
for plain error. United States v. Arsenault, 833 F.3d 24, 28 (1st
Cir. 2016). And, as Mangual has not shown that the District Court
committed plain error, or even reversible error at all, none has
merit.
Mangual's first procedural challenge is that the
District Court relied on clearly erroneous facts in calculating
his base offense level ("BOL") per section 2K2.1(a)(4)(B) of the
U.S. Sentencing Guidelines Manual, which provides for a BOL of 20
for an offense involving possession of a "semiautomatic firearm
that is capable of accepting a large capacity magazine" by a
prohibited person, in this case a drug user. U.S.S.G. §
2K2.1(a)(4)(B). But, the presentence report ("PSR") contains the
probation officer's finding that "the firearm in this case was a
semiautomatic firearm (Bushmaster Rifle, Model Carbon- 15 Pistol,
Caliber 5.56, Serial Number D04556) that is capable of accepting
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a large capacity magazine and hence, among the evidence seized in
this case there is a high capacity magazine (One 5.56x45 PMAG rifle
magazine with capacity for 30 rounds)." Nor does Mangual point to
any evidence in the record that would call into question the
District Court's finding that the rifle he was found to possess
while being an unlawful drug user was a semiautomatic firearm that
was capable of receiving a large-capacity magazine. We thus see
no basis for finding clear error here. United States v. Cox, 851
F.3d 113, 124 (1st Cir. 2017); see United States v. Cyr, 337 F.3d
96, 100 (1st Cir. 2003) ("[I]f the defendant's objections to the
PSR are merely rhetorical and unsupported by countervailing proof,
the district court is entitled to rely on the facts in the PSR.").
Mangual's next procedural challenge concerns the
District Court's weighing of the 18 U.S.C. § 3553(a) factors. But,
the District Court expressly stated that it had considered all
relevant § 3553(a) factors, noting specifically its consideration
of the "nature of the offense, the parties' plea agreement, the
type of weapon that was involved and the amount of ammunition[.]"
See 18 U.S.C. § 3553(a)(1)-(2). Given that the District Court was
not required to "dissect every factor . . . 'one by one, in some
sort of rote incantation, when explicating its sentencing
decision,'" United States v. Rivera-Clemente, 813 F.3d 43, 51 (1st
Cir. 2016) (quoting United States v. Turbides–Leonardo, 468 F.3d
34, 40–41 (1st Cir. 2006)), we cannot say that the District Court
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failed to give due consideration to the § 3553(a) factors in
imposing a mid-range sentence. See id.
We also reject Mangual's assertion that the District
Court committed procedural error by not adequately explaining its
sentencing rationale. The explanation required by § 3553(c) "need
[not] be precise to the point of pedantry." United States v.
Dávila–González, 595 F.3d 42, 48 (1st Cir. 2010) (quoting Turbides-
Leonardo, 468 F.3d at 40); see United States v. Vargas-García, 794
F.3d 162, 166 (1st Cir. 2015). And here, before sentencing Mangual
to a term of imprisonment in the middle of the applicable
guidelines sentencing range, the District Court described
Mangual's use of marijuana and Percocet pills, the fact that this
was his third conviction, and the type of the weapon and amount of
ammunition involved in the offense.
Mangual's final procedural challenge is that the
District Court reversibly erred by failing to elicit objections to
the sentence after it was announced. Mangual relies for this
argument on an Eleventh Circuit case that requires a district
court, after imposing a sentence, to give the parties an
opportunity to object to the court's findings of fact and
conclusions of law. United States v. Jones, 899 F.2d 1097, 1102
(11th Cir. 1990). However, we have not imposed the requirement
set forth in Jones. See United States v. Cortés-Medina, 819 F.3d
566, 574 n.10 (1st Cir. 2016) (Lipez, J., dissenting) (stating
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that the First Circuit does not, but should, have such a rule);
see also United States v. Gallant, 306 F.3d 1181, 1189 (1st Cir.
2002) (noting that the Federal Rules of Criminal Procedure are
silent regarding post-sentencing objections).
We turn then to Mangual's challenge to the substantive
reasonableness of the sentence. Mangual asserts that the District
Court's sentence was substantively unreasonable because the
District Court imposed too harsh a sentence given that the record
shows, in his view, that he was merely "in the wrong place at the
wrong time."1 "But the fact '[t]hat the court chose to attach less
significance to certain mitigating circumstances than [Mangual]
thinks they deserved does not make his sentence substantively
unreasonable.'" United States v. Milán-Rodríguez, 819 F.3d 535,
540 (1st Cir. 2016) (first alteration in original) (quoting United
States v. Colón–Rodríguez, 696 F.3d 102, 108 (1st Cir. 2012)).
Rather, "[a] sentence is substantively reasonable so long as it
rests on a plausible sentencing rationale and exemplifies a
defensible result." Id. (quoting United States v. Fernández–
Garay, 788 F.3d 1, 6 (1st Cir. 2015)). And that is the case here,
given the features of the case that the District Court highlighted:
Mangual's drug use, his prior convictions, and the type of the
1
Mangual does also argue that his sentence was substantively
unreasonable because of the alleged procedural errors. But, given
our analysis of the merits of those procedural errors, this
challenge necessarily fails.
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weapon and amount of ammunition involved in the offense. Nor does
Mangual identify any mitigating grounds sufficient to persuade us
that the District Court acted unreasonably in imposing its
sentence. We thus reject the challenge even if we choose to apply
the more defendant-friendly abuse-of-discretion standard that
Mangual asks us to use.
IV.
For the foregoing reasons, the District Court's sentence
is affirmed.
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