United States v. Zayas-Burgos ( 2021 )

United States Court of Appeals
For the First Circuit
Nos. 19-1163, 19-1166, 19-1462
UNITED STATES,
Appellee,
v.
ISAAC ZAYAS BURGOS,
Defendant, Appellant.
APPEALS FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Gustavo A. Gelpí, Jr., U.S. District Judge]
[Hon. Pedro A. Delgado-Hernández, U.S. District Judge]
Before
Thompson, Boudin, and Barron,
Circuit Judges.
Raymond Sánchez Maceira on brief for appellant.
W. Stephen Muldrow, United States Attorney, Mariana E. Bauzá-
Almonte, Assistant United States Attorney, Chief, Appellate
Division, and Antonio L. Perez-Alonso, Assistant United States
Attorney, on brief for appellee.
April 13, 2021
BOUDIN, Circuit Judge. Isaac Zayas-Burgos pleaded
guilty to being a felon in possession of a firearm, 18 U.S.C.
§ 922(g)(1), engaging in firearms trafficking without a license,
18 U.S.C. § 922(a)(1)(A), and conspiring to commit an offense
against the United States, 18 U.S.C. § 371. These crimes violated
the terms of two distinct supervised release sentences, leading to
the revocation of both and two consecutive twenty-four-month
sentences of imprisonment. For the crimes themselves, Zayas-
Burgos was also sentenced to eighty-seven months in prison, to be
served consecutively to the revocation sentences.
This is a consolidated appeal of all three sentences,
but Zayas-Burgos only advances arguments challenging the eighty-
seven-month sentence. Review is for plain error because, though
appellant's counsel objected below, counsel offered no reason for
the objection nor specified the type of objection raised. United
States v. Hurley, 842 F.3d 170, 173 (1st Cir. 2016).
Zayas-Burgos says the district court erred by viewing
the Sentencing Guidelines as mandatory, pointing to the end of the
following statement as evidence:
All things considered, taking into account the totality
of circumstances, which the Court has looked into very
carefully, on the judgment of the Court, Mr. Isaac Zayas
is hereby committed to the custody of the Bureau of
Prisons to be imprisoned for a term of 87 months as to
Count I and 60 months as to Counts II and III, to be
served concurrently with each other, consecutively to
the term imposed upon revocation in criminal case 13-
529 and 15-733, pursuant to Section 5(g)(1.2).
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(Emphasis added). He says this language shows the court believed
it had to impose the eighty-seven-month sentence consecutively to
the revocation sentence.
We presume judges know the Guidelines are advisory,
United States v. Vega-Salgado, 769 F.3d 100, 104 (1st Cir. 2014),
and the district court's articulation of a flexible "all things
considered, . . . totality of the circumstances" analysis is
inconsistent with the conclusion that the court felt bound by
mandatory Guidelines. The district court here also referred to
the Guidelines as "advisory." Claims like Zayas-Burgos's have
been regularly rejected even on much stronger evidence the district
court believed the Guidelines were mandatory. See, e.g., United
States v. Stone, 575 F.3d 83, 91 (1st Cir. 2009).
Zayas-Burgos also argues the district court erred by not
offering a distinct analysis of the § 3553(a) factors to support
imposing the sentences consecutively. But he cites no legal
support, nor does he point to evidence showing that the court's
analysis of the 18 U.S.C. § 3553(a) factors did not motivate its
decision on both the length and consecutiveness of the sentences.
Affirmed.
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