United States v. Andujar-Colon ( 2022 )

United States Court of Appeals
For the First Circuit
No. 21-1215
UNITED STATES OF AMERICA,
Appellee,
v.
HÉCTOR ANDÚJAR-COLÓN,
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
Lynch, Thompson, and Gelpí,
Circuit Judges.
German A. Rieckehoff for appellant.
W. Stephen Muldrow, United States Attorney, Mariana E. Bauzá-
Almonte, Assistant United States Attorney, Chief, Appellate
Division, and Maarja T. Luhtaru, Assistant United States Attorney,
for appellee.
August 5, 2022
LYNCH, Circuit Judge. Héctor Andújar-Colón entered a
straight guilty plea on three counts of engaging in the business
of dealing a firearm without a license. See 18 U.S.C.
§§ 922(a)(1)(A), 923(a)(1)(D), 924(a)(1)(D), and 2. The district
court sentenced Andújar-Colón to 60 months' imprisonment, the
statutory maximum.
Andújar-Colón challenges this sentence on procedural and
substantive grounds. Procedurally, he contends for the first time
on appeal that the district court erred in (1) not considering
Section 3553(a) factors related to the "history and
characteristics" of the defendant, 18 U.S.C. § 3553(a), and
(2) mistaking the statutory maximum for a mandatory minimum
sentence. Substantively, he objects to the length of the sentence.
We affirm.
I.
The following facts, taken from the presentence report
(PSR) and Appellant's brief, are not in dispute. Andújar-Colón
admitted to engaging in the business of illegally dealing firearms
on three separate occasions in Puerto Rico and Florida over more
than a year. In April 2017, Andújar-Colón, through an accomplice,
sold a Glock pistol, model 17, 9 mm caliber, and a Rock River armed
rifle, model LAR-15, 5.56 mm caliber, to an undercover agent from
the Puerto Rico Police Bureau for $1,600 and $2,600, respectively.
In May 2018, Andújar-Colón, through an accomplice, sold a Glock
- 2 -
pistol, model 22, .40 caliber, and a Smith and Wesson pistol, model
SD40VE, .40 caliber, to an undercover Bureau of Alcohol, Tobacco,
Firearms and Explosives (ATF) agent in Florida for $1,400 each.
Less than a month later, Andújar-Colón, through an accomplice,
sold an AR style rifle, .223 caliber, for $2,500 to the same ATF
agent.
In 2012, Andújar-Colón pled guilty in Philadelphia,
Pennsylvania, to the manufacture, delivery, or possession with
intent to manufacture or deliver a controlled substance in
violation of 35 Pa. Stat. Ann. § 780-113(a)(30).
The PSR recommended a Total Offense Level of 25. It
calculated a Criminal History Category of II based on
Andújar-Colón's prior conviction. The guidelines sentencing range
(GSR) was 63 to 78 months of imprisonment. Andújar-Colón's
guidelines sentence was 60 months, in line with the statutory
maximum.
Andújar-Colón's sentencing memorandum did not dispute
any aspect of the PSR; rather, it argued substantively that
imprisonment of 27 months would accomplish the overarching goals
of sentencing. Andújar-Colón's memorandum highlighted that he had
been on pretrial release since April 2019 without incident, during
which time he had been working and volunteering; he "ha[d] the
support of his family and his community"; his guidelines base
offense level was enhanced due to a prior conviction based on
- 3 -
"events that transpired over a decade ago . . . for which he served
less than 4 months in prison"; "[h]e has no addictions to drugs or
alcohol and no history of violence"; and he is a father of five.
The statutory maximum should "be left for those offenders with a
history of violent behavior and higher criminal history and rates
of recidivism."
The government did not file a sentencing memorandum.
At the sentencing hearing on February 17, 2021,
Andújar-Colón reiterated his request for a 27-month sentence. The
government requested a 60-month sentence, citing the defendant's
access to many firearms, the access to
different kinds of firearms, the access to
these firearms from either inside Puerto Rico
or in the continental U.S. in Florida, the
amount of money that he sold these firearms
for, meaning the profit that he got from these
firearms, and the amount of time that he
engaged in this business.
The district court accepted the PSR's guidelines
calculations and the GSR. It noted that the guidelines range was
63 to 78 months but, because of a statutory maximum penalty of
five years, the guidelines term of imprisonment for
Andújar-Colón's offense was 60 months. The district court then
imposed a 60-month sentence. Andújar-Colón, through counsel,
raised an objection to the "extent" of the district court's
sentence but "[n]ot to the procedural [sic]."
- 4 -
Andújar-Colón, through counsel, appealed this sentence.
Later, he separately filed pro se a motion for reconsideration of
his sentence, which the district court denied while his appeal
remained pending.
II.
"Preserved claims of procedural and substantive
sentencing error are reviewed under an abuse of discretion
standard." United States v. Viloria-Sepulveda, 921 F.3d 5, 8 (1st
Cir. 2019) (citing Gall v. United States, 552 U.S. 38, 56 (2007)
and United States v. Soto-Soto, 855 F.3d 445, 448 (1st Cir. 2017)).
Andújar-Colón's claim of substantive error, made in the district
court, is undoubtedly preserved, and is reviewed under that
standard.
Andújar-Colón did not preserve his procedural
objections, which are reviewed for plain error. See id.; see also
United States v. Matos-de-Jesús, 856 F.3d 174, 177-78 (1st Cir.
2017). "Under the plain error standard, the appellant must show
'(1) that an error occurred (2) which was clear or obvious and
which not only (3) affected the defendant's substantial rights,
but also (4) seriously impaired the fairness, integrity, or public
reputation of judicial proceedings.'" Soto-Soto, 855 F.3d at 448
(quoting United States v. Duarte, 246 F.3d 56, 60 (1st Cir. 2001)).
- 5 -
III.
We find no error, let alone plain error, as to the
procedural objections. As to the claim of substantive error, there
is certainly no abuse of discretion in the length of the sentence
imposed.
We turn first to Andújar-Colón's procedural challenges.
A sentencing court "has broad discretion in weighing and balancing
the [Section] 3553(a) factors" to determine an appropriate
sentence. Viloria-Sepulveda, 921 F.3d at 11 n.2; see also United
States v. Gierbolini-Rivera, 900 F.3d 7, 15 (1st Cir. 2018).
Section 3553(a) permits the district court to broadly
consider "any reliable information relevant not only to the
'history and characteristics' of the defendant but also to factors
such as the 'seriousness of the offense,' the need 'to afford
adequate deterrence to criminal conduct,' and the need 'to protect
the public from further crimes of the defendant.'" Viloria-
Sepulveda, 921 F.3d at 9 (quoting 18 U.S.C. § 3553(a)).
Andújar-Colón contends that the district court failed to
consider Section 3553(a) factors related to the "history and
characteristics of the defendant." Further, he argues that the
court "misunderst[ood]" the statutory maximum as a "compulsory
sentence." At the same time, Andújar-Colón acknowledges that the
court "offered a detailed explanation and some weighty reasons for
- 6 -
its sentence, and it even mentioned in passing that it had
considered documents submitted by the defense."
The record shows that the district court properly
considered Section 3553(a) factors in sentencing Andújar-Colón to
60 months' imprisonment. The district court "noted"
Andújar-Colón's sentencing memorandum and recounted that the
memorandum "discusse[d] factors that are positive for
[Andújar-Colón] . . . volunteer work that [he has] done, family
factors." Moreover, the district court reviewed the PSR, listened
as Andújar-Colón expressed repentance and apologized, and cited
Section 3553 factors. The district court stated the following:
Andújar-Colón is 37 years old, resides in Florida, has five minor
dependents, graduated from high school in 2002, completed two years
toward a bachelor's degree in physical education, and completed
studies as a barber in 2020 and has been employed as such in
Florida. Andújar-Colón reported having stopped using drugs around
fourteen years prior to his arrest and he tested negative for drug
use at the time of arrest. This was Andújar-Colón's second known
arrest and conviction.
The district court did not "misunderstand[]" the 60-
month statutory maximum as a mandatory minimum sentence.
Andújar-Colón mistakenly bases this argument on the district court
order denying Andújar-Colón's pro se motion for reconsideration,
which stated that the "Court . . . had to adhere to the statutory
- 7 -
maximum of 60 months imprisonment" (emphasis added). The district
court understood itself obligated not to exceed the statutory
maximum of 60 months in its guideline sentence, even though this
60-month maximum fell below the GSR. The court's statement was an
obvious reference to that fact. Andújar-Colón further relies on
the government "momentarily misstating that the 60-month term was
mandatory" during the sentencing hearing. But the government
quickly corrected this mistake on the record.
Finally, the 60-month sentence is substantively
reasonable for the district court's stated reasons.
Andújar-Colón's guidelines sentence falls well within the
"universe of reasonable sentences." United States v. Rivera-
González, 776 F.3d 45, 52 (1st Cir. 2015) (citing United States v.
Walker, 665 F.3d 212, 234 (1st Cir. 2011)).1
1 Though Andújar-Colón did not challenge the district
court's subsequent denial of his pro se motion for reconsideration,
the government has briefed the issue in an abundance of caution.
The government correctly notes that we do not have jurisdiction to
consider the district court's denial. Such "self-styled 'motions
for reconsideration of sentence'" are "unmoored in the [Federal
Rules of Criminal Procedure]." United States v. Gonzalez-
Rodriguez, 777 F.3d 37, 38 (1st Cir. 2015). As this court has
emphasized on multiple occasions, "[t]here is simply no such thing
as a 'motion to reconsider' an otherwise final sentence." Id. at
41 (alteration in original) (citing United States v. Ortiz, 741
F.3d 288, 292 n.2 (1st Cir. 2014)). Rather, a "criminal defendant
who requests from the district court a correction or reduction of
a sentence after judgment is entered must proceed within the
confines of Fed. R. Crim. P. 35(a), unless there is some statutory
basis for the requested relief." Id. (citations omitted). Rule
35(a) permits a district court to "correct a sentence that resulted
from arithmetical, technical, or other clear error" within 14 days
- 8 -
IV.
Affirmed.
of pronouncement of a sentence. It is doubtful that
Andújar-Colón's motion fits under Rule 35(a). Even if it did,
this motion is without merit because it rests on a
mischaracterization of what the district court stated. The
district court never stated that it was required to impose a 60-
month mandatory minimum, only that under the guidelines sentence
it did impose, it could not sentence Andújar-Colón to more than 60
months in prison.
- 9 -