United States v. Garcia-Mojica ( 2020 )

United States Court of Appeals
For the First Circuit
No. 18-1265
UNITED STATES OF AMERICA,
Appellee,
v.
JOHN MICHAEL GARCÍA-MOJICA,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Gustavo A. Gelpí, Chief, U.S. District Judge]
Before
Howard, Chief Judge,
Torruella and Kayatta, Circuit Judges.
Joseph A. Niskar, Assistant Federal Public Defender, with
whom Franco L. Pérez-Redondo, Research & Writing Specialist, Eric
Alexander Vos, Federal Public Defender, and Vivianne M. Marrero-
Torres, Assistant Federal Public Defender, Supervisor, Appeals
Section, were on brief, for appellant.
Antonio L. Pérez-Alonso, Assistant United States Attorney,
Appellate Division, with whom Thomas F. Klumper, Assistant United
States Attorney, Senior Appellate Counsel, W. Stephen Muldrow,
United States Attorney, and Mariana E. Bauzá-Almonte, Assistant
United States Attorney, Chief, Appellate Division, were on brief,
for appellee.
April 9, 2020
TORRUELLA, Circuit Judge. In this appeal, John Michael
García-Mojica ("García") challenges a 100-month sentence of
imprisonment imposed for the convictions of possession of a firearm
by a prohibited person and illegal possession of a machine gun.
During a traffic stop, García was caught with a Glock pistol
modified to shoot automatically with its serial number removed,
two high-capacity magazines, and forty-seven rounds of ammunition.
He confessed immediately and entered a straight plea of guilty.
A probation officer recommended a sentence of forty-one to
fifty-one months for both offenses based on the U.S. Sentencing
Guidelines. At sentencing, the prosecutor challenged the probation
officer's Guidelines calculation and requested a sentence of at
least sixty-three months' imprisonment; in the alternative, the
Government requested an upward variance, arguing that the
Guidelines did not contemplate the severity of García's former
state-court convictions for which he received a twenty-three year
suspended sentence. Defense counsel countered the prosecution's
arguments and objected to the characterization of the underlying
state-court convictions. After stating it was giving García the
benefit of the doubt and disclaiming reliance on the events beyond
what was contained in the state-law convictions, the district court
adopted the Guidelines calculation and then imposed an upward
variance of forty-nine months' imprisonment. This appeal followed.
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Challenging his punitive sentence, García claims that the district
court erred by failing to adequately justify its sentence, relying
on unsubstantiated facts, and ultimately, arriving at a
substantively unreasonable result. His overtures unavailing, the
sentence is affirmed.
A.
On December 13, 2016, at 1:25 a.m., the police in Sábana
Grande, Puerto Rico were alerted to a suspicious vehicle with a
flat tire.1 The officers saw the vehicle with its hazard lights
on and stopped parallel to it to ask if the occupants needed
assistance. The driver stated he did not have a spare tire, and
the officer, smelling marijuana, told the driver to pull over.
Following the traffic stop, García, who was sitting in the
backseat, exited the car, meanwhile dropping a thirty-round pistol
magazine. The police arrested García and found a second magazine
in his pocket. Additionally, the police recovered from García's
waistband a model seventeen 9mm Glock pistol (loaded with a single
round in the chamber) with an obliterated serial number. Later
that day, García met with agents from the Bureau of Alcohol,
1 The facts are derived from the change-of-plea colloquy, the
undisputed sections of the presentence investigation report, and
the sentencing hearing transcript. See United States v.
Vázquez-Martínez, 812 F.3d 18, 20 (1st Cir. 2016) (citing United
States v. Zapata–Vázquez, 778 F.3d 21, 22 (1st Cir. 2015)).
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Tobacco, Firearms and Explosives, confirmed the police officer's
account, and admitted that the seized firearm belonged to him, and
that he had purchased the gun for $1,100 with the serial number
removed and modified to shoot automatically.
On December 21, 2016, García was charged in a two-count
indictment for violation of 18 U.S.C. § 922(g)(1) (prohibited
person in possession of a firearm) and 18 U.S.C. § 922(o) (illegal
possession of a machine gun). Following discovery, the United
States indicated that no plea offer would be tendered. García
proceeded to enter a straight plea of guilty for both counts. A
U.S. Probation Officer issued a presentence investigation report
(PSR), which recommended an imprisonment term of forty-one to
fifty-one months, based on a calculation of a total offense level
of twenty-one and a criminal history category of II. The PSR
recounted García's criminal history in Puerto Rico state court:
four convictions for possession of a firearm without a license, a
conviction for resisting public authority, and a conviction for
conspiracy in violation of Puerto Rico Penal Code Article 249 of
2004.2 The PSR described the last offense as "conspir[ing] to
2 Article 249 reads: "[w]hen two (2) or more persons conspire or
agree to commit a crime and have made specific plans regarding
their participation, the time, the location, or the acts to be
carried out, they shall be guilty of a misdemeanor. . . . If the
agreement is to commit a first- or second-degree felony, they shall
be guilty of a fourth-degree felony . . . ." P.R. Laws Ann.
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commit murder, in the Food Court of San Patricio Plaza, at
5:00 p.m. using a firearm described as a black Glock, model 23,
.40 caliber, ma[king] several shots causing the death of the human
being Emmanuel J. Zapata-Casso." The PSR did not identify any
factors warranting a departure from the advisory guidelines or a
variance pursuant to 18 U.S.C. § 3553(a). Subsequently, both
prosecution and defense submitted sentencing memoranda, and
following delays from Hurricane María, the court sentenced García
on March 12, 2018.
At the sentencing hearing, the United States objected to
the PSR's Guidelines calculation, proposing a total offense level
of twenty-three because García's prior conviction constituted a
crime of violence and requesting a sentence of at least sixty-three
months. Defense counsel did not object to the PSR when prompted
by the court, but in response to the United States' objections to
the Guidelines calculations, she requested a sentence within the
PSR's proposed range. The United States then entreated the court
to impose a variance, recounting the circumstances of García's
state-court convictions3 and explaining several additional reasons
tit. 33, § 4877.
3 The prosecutor stated that in García's conspiracy-to-
commit-murder case, García and another had shot several times at
an individual in broad daylight at around 5:00 p.m. in the food
court of San Patricio Plaza and killed that individual.
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why the court should vary upwardly from the Guidelines. García's
counsel objected to the Government's characterization of her
client's conviction and posited that the Guidelines sentence
accurately reflected García's criminal history. Asked why García
was not "a candidate for an upward variance" considering "all these
firearm violations," García's counsel explained that this was only
"his second brush with the law" and asked the court to consider
that the lenient sentence in state court could have been due to
additional mitigating circumstances and lack of participation.
She further explained that the current offense occurred during a
routine traffic stop, and that García would be "exposed to the
full 23 years of imprisonment [in state court] because of the
present case."
After adopting the Guidelines sentencing range set forth
in the PSR, the court explicitly stated it would "not go beyond"
what was in the state-court convictions. The court then announced
a 100-month term of imprisonment as "sufficient but not greater
than necessary." The court focused its explanation on the
seriousness of the firearms offenses, the leniency of a
twenty-three year suspended sentence, and the fact that García was
under state supervision when the instant offense was committed.
It cited United States v. Flores-Machicote, 706 F.3d 16 (1st Cir.
2013), as evidence of the problem firearms pose in the District of
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Puerto Rico. After the pronouncement of the sentence, defense
counsel lodged an objection to the sentence's procedural
reasonableness.
This timely appeal followed.
B.
García challenges his sentence as both procedurally and
substantively unreasonable. In reviewing his claims, we first
determine whether the district court committed a "procedural
error, such as 'failing to calculate (or improperly calculating)
the Guidelines range, treating the Guidelines as mandatory,
failing to consider the section 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.
Gierbolini-Rivera, 900 F.3d 7, 11–12 (1st Cir. 2018) (quoting
United States v. Trinidad-Acosta, 773 F.3d 298, 309 (1st Cir.
2014)).4 "[I]f the sentence is procedurally sound, we then ask
whether the sentence is substantively reasonable." Id. at 12
(alteration in original) (quoting United States v. Rossignol, 780
4 The court is required to "impose a sentence [that is] sufficient,
but not greater than necessary" to accomplish the goals of
sentencing by taking into consideration the § 3553(a) factors
after correctly calculating the Guidelines sentence range. See
United States v. Rodríguez, 731 F.3d 20, 25-26 (1st Cir. 2013).
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F.3d 475, 477 (1st Cir. 2015)). A sentence will be found
"substantively reasonable so long as the sentencing court has
provided a 'plausible sentencing rationale' and reached a
'defensible result.'" Id. (quoting United States v. Martin,
520 F.3d 87, 96 (1st Cir. 2008)).
García attacks the procedural reasonableness of his
sentence for two reasons: the district court "fail[ed] to
[adequately] justify the extent of the variance" and "premised the
extent of the variance on unsupported allegations." The
Government avers that García's objection to the sentence's
procedural reasonableness was too general to secure review of the
sentence under the abuse of discretion standard that García seeks
on appeal. See id. ("We generally apply the deferential abuse of
discretion standard to preserved challenges to the procedural
reasonableness of a sentence." (citing United States v. Del
Valle-Rodríguez, 761 F.3d 171, 176 (1st Cir. 2014))). It is true
that "[a] general objection to the procedural reasonableness of a
sentence is not sufficient to preserve a specific challenge to any
of the sentencing court's particularized findings," and claims
first raised on appeal will be subject to the more formidable plain
error standard of review.5 United States v. Matos-de-Jesús, 856
5 "Under that formidable standard, the appellant must show
'(1) that an error occurred (2) which was clear or obvious and
which not only (3) affected [his] substantial rights, but also
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F.3d 174, 177–78 (1st Cir. 2017) (quoting United States v.
Soto-Soto, 855 F.3d 445, 448 n.1 (1st Cir. 2017)). García responds
that the current arguments were "at the forefront of the sentencing
hearing and the primary point of contention between the parties."
However, even assuming the more favorable standard of review,
García's contentions would still fail. See United States v.
Caballero-Vázquez, 896 F.3d 115, 120 (1st Cir. 2018).
García first argues that the district court failed to
adequately articulate a basis for departing so significantly from
the Guidelines range of forty-one to fifty-one months'
imprisonment to impose a 100-month sentence. Given such a drastic
variance, he contends, the court was obligated to offer an
explanation commensurate to the extent of additional time. García
puzzles over how the court could eschew reliance on the
Government's representations of the 2011 Puerto Rico court
convictions by giving García "every conceivable benefit of the
doubt" and yet still impose such a punitive sentence. García
insists that because the Guidelines accounted for the aggravated
nature of the weapon during the pendency of a suspended sentence,
(4) seriously impaired the fairness, integrity, or public
reputation of judicial proceedings.'" United States v.
Matos-de-Jesús, 856 F.3d 174, 178 (1st Cir. 2017) (alteration in
original) (quoting United States v. Duarte, 246 F.3d 56, 60 (1st
Cir. 2001)).
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in addition to his criminal history, the court's departure from
the Guidelines required it to "articulate specifically the reasons
that this particular defendant's situation is different from the
ordinary situation covered by the [G]uidelines calculation."
United States v. Vázquez-Martínez, 812 F.3d 18, 24 (1st Cir. 2016)
(quoting United States v. Zapete–García, 447 F.3d 57, 60 (1st Cir.
2006)).
While we agree with García that a "sentencing court's
burden to explain its sentence increases the more that it deviates
from the guideline range," Matos-de-Jesús, 856 F.3d at 179, the
court here did just that. Reviewing the sentencing transcript,
the court's explanation of its reasoning is thorough. While the
court was certainly troubled by the circumstances already factored
into the Guidelines calculation, it expressed additional concerns,
including that García had not learned from his lenient state-court
sentence for his prior weapons offenses6 and had committed the
instant offense only five years into his twenty-three year
suspended sentence. The court also noted that García was carrying
6 García contests whether the twenty-three year suspended state
sentence was actually lenient. While defense counsel was free to
argue that García's twenty-three year suspended sentence was the
result of mitigating factors related to his level of participation
in the underlying offense, the court was within its discretion to
find those arguments unpersuasive and to determine that García's
recent convictions evidenced that he had not learned from his
"Herculean break" in state court.
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extra ammunition, which contributed to the lethalness of the
automatic weapon.7 Additionally, the court cited the problem of
illegal weapons in Puerto Rico as pertinent to the seriousness of
the present offense, nodding to Flores-Machicote, 706 F.3d at
22-23. See also United States v. Santos–Rivera, 655 F. App'x 5,
7 (1st Cir. 2016) ("[T]he incidence of particular crimes in the
relevant community appropriately informs and contextualizes the
need for deterrence." (alteration in original) (quoting United
States v. Narváez-Soto, 773 F.3d 282, 286 (1st Cir. 2014))). The
sentencing court's articulation of these concerns regarding
García's prior lenient treatment and pattern of serious weapons
offenses in his particular community can be considered as falling
outside the factors explicitly considered by the Guidelines,
warranting additional deterrence and resulting in additional time.
García's second argument -- that the district court's
variance can only be explained by its reliance on unsupported
allegations -- is intertwined with his first. According to García,
because the court failed to explain why he was distinguishable
from other similarly situated defendants and did not articulate a
compelling reason for almost doubling the recommended sentence,
the court must have relied on the prosecution's characterization
7 The Guidelines do not take into consideration the extra
ammunition García was carrying when apprehended.
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of his underlying state law conviction. García contends that
consideration of these facts not in evidence essentially
prejudiced the district court against him, overriding any
mitigating factors offered by the defense.
This argument, however, fails simply due to the fact
that the state-court convictions were properly before the court.
The PSR (to which García did not object) stated that García was
convicted for conspiring to commit murder leading to a death, and
his own sentencing memorandum read that García had "conspired in
the murder of a third person." While the prosecution implored the
sentencing court to read more into the "asymmetry between
Mr. García's [state court] punishment and his alleged conduct," it
was within the court's discretion to take the convictions described
in the PSR at face value when determining the appropriate sentence
in light of the § 3553(a) factors. United States v. Acevedo-
López, 873 F.3d 330, 340 (1st Cir. 2017) ("[Defendant] did not
object to the summaries of these two incidents in the PSR, so the
district court could treat those facts 'as true for sentencing
purposes.'" (quoting United States v. Ocasio-Cancel, 727 F.3d 85,
91-92 (1st Cir. 2013))). Additionally, the sentencing judge
expressly disavowed any reliance on facts beyond the convictions
when it thoroughly articulated the aforementioned reasons for the
variance. Because the court sufficiently explained the sentence
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while relying on the facts properly before it, García's claims of
procedural error fail.
Lastly, García incorporates his prior arguments of
procedural error to challenge the sentence's substantive
reasonableness (i.e., length), acknowledging that only a
"plausible explanation" of the sentence is required. See United
States v. Clogston, 662 F.3d 588, 593 (1st Cir. 2011). At
sentencing, García "advocate[d] for a sentence shorter than the
one ultimately imposed." Holguin-Hernández v. United States, 140
S. Ct. 762, 766 (2020). Therefore, we review his objections to
the sentence's substantive reasonableness for an abuse of
discretion. Id.With respect to substance, "[s]entencing is much more an
art than a science. A sentencing court is under a mandate to
consider a myriad of relevant factors, but the weighting of those
factors is largely within the court's informed discretion."
Clogston, 662 F.3d at 593. "Although an appellate court must take
into account the full extent of any variance, the dispositive
question remains whether the sentence is reasonable in light of
the totality of the circumstances." Vázquez-Martínez, 812 F.3d
at 26 (quoting United States v. Santiago–Rivera, 744 F.3d 229, 234
(1st Cir. 2014)). The sentencing court here stated that it was
considering both aggravating and mitigating factors, the latter
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including acceptance of responsibility, physical and emotional
conditions, and substance abuse, although in the end, it chose
"not to attach to certain of the mitigating factors the
significance that the appellant th[ought] they deserved."
Clogston, 662 F.3d at 593. Instead, the court found that García's
personal circumstances and the seriousness of his repeat firearm
offenses warranted an above-Guidelines sentence. That is not an
abuse of discretion.
García also laments that the district court neglected to
consider "the aggregate length of his federal and state sentence
as part of its duty to consider the § 3553(a) factors." Upon
review, it appears instead that the district court considered this
and the possibility that García could be liable for the imposition
of the entire twenty-three year state sentence and still found the
aggravating factors outweighed the mitigating factors. As the
sentence is within the "universe of reasonable sentencing
outcomes," United States v. Vargas-García, 794 F.3d 162, 167 (1st
Cir. 2015) (quoting Clogston, 662 F.3d at 592), we cannot find it
substantively unreasonable.
Affirmed.
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