United States v. Gonzalez-Flores ( 2021 )

United States Court of Appeals
For the First Circuit
Nos. 18-1607, 19-1118
UNITED STATES OF AMERICA,
Appellee,
v.
CARMELO GONZALEZ-FLORES,
Defendant, Appellant.
APPEALS FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Gustavo A. Gelpí, Jr., Chief U.S. District Judge]
Before
Kayatta, Boudin, and Barron,
Circuit Judges.
Eric Alexander Vos, Federal Public Defender, Vivianne M.
Marrero, Assistant Federal Public Defender, and Melanie Matos-
Cardona, Research and Writing Specialist, on brief for appellant.
W. Stephen Muldrow, United States Attorney, Mariana E. Bauzá-
Almonte, Assistant United States Attorney, Chief, Appellate
Division, and Thomas F. Klumper, Assistant United States Attorney,
Senior Appellate Counsel, on brief for appellee.
February 18, 2021
BOUDIN, Circuit Judge. While walking on a public street
in San Lorenzo, Carmelo Gonzalez-Flores ("Gonzalez") pointed a
firearm at two Puerto Rico police officers. When the officers
identified themselves as police, Gonzalez dropped the gun and ran.
The officers arrested him. Gonzalez pled guilty to possession of
a firearm by a convicted felon, 18 U.S.C. § 922(g)(1).
His guidelines sentencing range ("GSR") was thirty-three
to forty-one months. The government argued for an upwardly variant
sentence of sixty months. The district court sentenced him to 120
months of imprisonment and three years of supervised release --
the statutory maximum. It also denied Gonzalez's request to access
the written Statement of Reasons ("SOR"). Gonzalez appealed both
the sentence and the district court's order denying access to the
SOR.
Gonzalez first argues that the district court failed to
consider certain sentencing factors under 18 U.S.C. § 3553(a). He
also claims that the district court failed to adequately explain
how it had weighed the other factors, or why this particular
sentence was appropriate. Our review is for abuse of discretion.
United States v. Dávila González, 595 F.3d 42, 47 (1st Cir. 2010).
The upward variance in this case was dramatic, and the
greater a variance from the GSR, the more robust the sentencing
court's explanation must be. United States v. Fields, 858 F.3d
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24, 31 (1st Cir. 2017). Here, the sentencing court thoroughly
explained the factors underlying its decision.
It started with Gonzalez's criminal history: in 1997,
Gonzalez was convicted of violating Puerto Rico's domestic
violence law by beating and threatening to kill his then-partner
in front of children. Less than two years later, he was arrested
and later convicted for shooting an illegally possessed gun into
the air. Because those convictions were more than fifteen years
old, they did not factor into his GSR.
Shortly after his second arrest, he was convicted of
second-degree murder. He was released after serving about fifteen
years of his twenty-five-year sentence, and his arrest in this
case happened just over two years later.
Gonzalez argues that the court's reliance on his
criminal history and the type of weapon he possessed is misplaced,
since those factors are taken into account under the sentencing
guidelines. "When a factor is already included in the calculation
of the guidelines sentencing range, a judge who wishes to rely on
that same factor to impose a sentence above or below the range
must articulate specifically the reasons that this particular
defendant's situation is different from the ordinary situation
covered by the guidelines calculation." United States v. Zapete-
Garcia, 447 F.3d 57, 60 (1st Cir. 2006).
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Gonzalez, noted the court, had not one but three prior
felony convictions, two for violent crimes and two of which
involved illegal possession of a firearm. The court also noted
that in this case he didn't just possess any firearm, he possessed
a weapon modified to fire automatically1 and 43 rounds of
ammunition. The district court explained that Gonzalez's criminal
history score did not take into account the seriousness of his
previous crimes or several troubling patterns that distinguish
Gonzalez's case from the ordinary: repeated violence, weapons
involvement (a community-based factor entitled to special weight
given the current prevalence of gun crimes in Puerto Rico, see
United States v. Flores-Machicote, 706 F.3d 16, 22-23 (1st Cir.
2013)), and recidivism shortly after release from prison, see
United States v. Vázquez- Martínez, 812 F.3d 18, 24 (1st Cir. 2016).
These patterns suggest that other sentencing factors, like public
protection and deterrence, point in favor of a longer sentence.
Further, the district court was entitled to base an upward variance
on the especially destructive nature of the gun (here, one modified
with an internal chip) and the amount of ammunition that Gonzalez
1 The prosecution asserted at sentencing that the gun had been
modified to shoot automatically, and Gonzalez did not object. The
court did seem to treat the gun as semiautomatic rather than
automatic ("The firearm has been modified to shoot in semiautomatic
mode . . . ."), but relied heavily on the especially dangerous
nature of the weapon.
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possessed, where those considerations were not adequately
accounted for in the guidelines. See United States v. Bruno-
Campos, 978 F.3d 801, 806 (1st Cir. 2020). The district court
also relied on the specific circumstances of the crime, which
involved the defendant pointing his firearm directly at the
officers before fleeing.
Gonzalez's argument that the district court failed to
consider other relevant factors is also meritless. As an initial
matter, a sentencing court need not address the § 3553(a) factors
"one by one, in some sort of rote incantation." United
States v. Dixon, 449 F.3d 194, 205 (1st Cir. 2006). But even if
that were not true, the court did consider the mitigating factors
Gonzalez emphasizes, including his age, education level, current
familial support and job prospects. The judge acknowledged these
circumstances, but thought they were outweighed by countervailing
factors. Nor did the court ignore the other § 3553(a) factors.
For each one -- the need for the sentence to promote respect for
the law, deterrence, and public protection -- the court explained
why, in its view, an especially long sentence was necessary. And
while Gonzalez points out that the district court did not expressly
consider his acceptance of responsibility in analyzing the
§ 3553(a) factors, the plain text of § 3553(a) does not suggest
that this was error, and Gonzalez does not cite any authority
holding otherwise.
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Gonzalez next argues that his sentence is just too long.
Long it certainly is, but his criminal history is remarkable. "Too
long" is a matter of judgment, and the court's judgment to us does
not seem devoid of a "plausible sentencing rationale and a
defensible result.” United States v. Martin, 520 F.3d 87, 96 (1st
Cir. 2008). Given the district court's superior coign of vantage
and considerable discretion in sentencing, we will not disturb its
decision to impose the upward variance based on the above
considerations. See United States v. Prosperi, 686 F.3d 32, 42-
43 (1st Cir. 2012).
Finally, Gonzalez argues that he should have been
allowed to access his SOR. Without a compelling reason for
nondisclosure, the sentencing court should provide a sealed copy
of the SOR to the parties upon request. See United States v.
Morales-Negrón, 974 F.3d 63, 67-69 (1st Cir. 2020); United States
v. Ramírez-Romero, 982 F.3d 35, 37 (1st Cir. 2020). However, a
district court's failure to provide the defendant with access to
the SOR "does not require vacation of the sentence absent a showing
of prejudice," Fields, 858 F.3d at 31, which Gonzalez has not made.
Gonzalez's sentence is affirmed but the case is remanded
to give defense counsel access to the SOR.
It is so ordered.
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