United States v. Lopez-Miranda , 683 F. App'x 9 ( 2017 )

Not for Publication in West's Federal Reporter
United States Court of Appeals
For the First Circuit
No. 15-1308
UNITED STATES OF AMERICA,
Appellee,
v.
JOSÉ EDGARDO LÓPEZ-MIRANDA,
a/k/a José Miranda-López, a/k/a El Gordo,
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
Howard, Chief Judge,
Torruella and Kayatta, Circuit Judges.
James S. Hewes on brief for appellant.
Mariana E. Bauzá Almonte, Assistant United States Attorney,
Chief, Appellate Division, Juan Carlos Reyes-Ramos, Assistant
United States Attorney, and Rosa Emilia Rodríguez-Vélez, United
States Attorney, on brief for appellee.
April 12, 2017
HOWARD, Chief Judge. José Edgardo López-Miranda
challenges the reasonableness of his 200-month incarcerative
sentence for conspiracy to possess cocaine with intent to
distribute in violation of 21 U.S.C. §§ 841(a)(1) and 846. After
careful consideration, we affirm.
I.
López was a member of a Puerto Rican drug-trafficking
organization between 2009 and 2010. In October 2010, a federal
grand jury indicted López and thirty-three coconspirators for
various crimes arising out of their drug-trafficking activities.
Although López initially avoided apprehension, federal authorities
took him into custody in December 2012. López subsequently pleaded
guilty to conspiring to possess cocaine with intent to distribute.
The parties stipulated that López was accountable for at
least five but less than fifteen kilograms of cocaine, which
established a Sentencing Guidelines Base Offense Level of 32. See
U.S.S.G. § 2D1.1(c)(4) (effective Nov. 1, 2012). Because López
accepted responsibility, the parties agreed that his Total Offense
Level was 29. See U.S.S.G. § 3E1.1. The plea agreement indicated
that a total offense level of 29 corresponded to a sentencing range
of 87 to 108 months, although that would have been true only if
López were in criminal history category I. See U.S.S.G. Ch. 5,
Pt. A (Sentencing Table) (effective Nov. 1, 2012). Significantly,
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the parties made no stipulation regarding López's criminal
history. As the count of conviction carries a mandatory minimum
sentence of 120 months, the parties agreed jointly to recommend a
sentence of that length. The district court subsequently accepted
López's guilty plea.
Prior to sentencing, the probation officer produced a
presentence investigation report ("PSR"). The PSR tracked the
plea agreement with respect to the Base Offense Level. It differed
from the plea agreement, however, by labeling López a career
offender. See U.S.S.G. § 4B1.1(a). This increased López's offense
level to 37. See id. § 4B1.1(b). After a three-level reduction
for acceptance of responsibility, the Total Offense Level was 34.
According to the PSR, López's criminal history category was VI.
See id. All told, López's Guidelines Sentencing Range was 262-
327 months. See U.S.S.G. Ch. 5, Pt. A (Sentencing Table).
López's criminal history includes: a 1995 conviction for
felony domestic violence; a 2004 conviction for felony aggravated
assault; and 2013 convictions for both child abuse and felony
omission in the prevention of a crime. With respect to the last
of these, López was found to have placed the body of his then-
partner's infant son, sealed in a trash bag, in a freezer after
the boy's mother asphyxiated the child.
At the sentencing hearing, López argued that the PSR
calculations overrepresented his criminal history and asked to be
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sentenced to 120 months' imprisonment, the statutory minimum.
Although the sentencing court considered López's violent past a
significant aggravating factor, it was sympathetic to the argument
that the career offender Guidelines overrepresented his criminal
history. After considering the relevant 18 U.S.C. § 3553(a)
sentencing factors, the judge imposed an incarcerative sentence of
200 months.
This appeal timely followed.
II.
On appeal, López argues that his "200 month sentence is
unreasonable and greater than necessary to effectuate the
[§ 3553(a)] factors." Claims of sentencing error trigger a two-
step inquiry: "we first determine whether the sentence imposed is
procedurally reasonable and then determine whether it is
substantively reasonable." United States v. Clogston, 662 F.3d
588, 590 (1st Cir. 2011). Here, López objects only to the
substantive reasonableness of his sentence.
We review the substantive reasonableness of a sentence
for abuse of discretion, "taking into account the totality of the
circumstances." United States v. Zavala-Martí, 715 F.3d 44, 50
(1st Cir. 2013). Although López did not object below, we will
assume arguendo that our review is for abuse of discretion. Cf.
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United States v. Nuñez, 840 F.3d 1, 6–7 (1st Cir. 2016) (assuming
without deciding that review is for abuse of discretion).
The sentencing court made specific, detailed findings
with respect to the relevant § 3553(a) factors and adequately
explained its sentence. See United States v. Arroyo-Maldonado,
791 F.3d 193, 201 (1st Cir. 2015). Indeed, as the sentencing
transcript makes clear, the judge thoughtfully considered and
discussed these factors with both the defendant and his counsel at
some length. Thus, López's "argument amounts to a disagreement
with the district court's weighing of the different sentencing
factors," and we find no abuse of the court's broad discretion.
Cf. id. at 200 (finding no plain error when defendant disagreed
with the sentencing court's weighing of factors).
Moreover, López's argument that there is an unwarranted
disparity between his sentence and the sentences of his co-
conspirators does not succeed because López and his co-
conspirators are not "identically situated." United States v.
Rivera-González, 626 F.3d 639, 648 (1st Cir. 2010). In fact, López
and his co-defendants are not so much as similarly situated. They
were sentenced by different judges. See id. (stating that there
"may be a reason for concern" if two identically situated
defendants "receive different sentences from the same judge").
Further, while some of López's co-defendants cooperated with the
government, López himself did not, see United States v. Rossignol,
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780 F.3d 475, 478 (1st Cir. 2015) (distinguishing between co-
defendants who cooperate and those who do not), and López's defense
counsel stated at sentencing that he was "pretty sure" López's co-
defendants were not career offenders, see Rivera-González, 626
F.3d at 648 (differentiating defendants based on their criminal
history).
Under the circumstances, imposition of a 200-month
sentence was not substantively unreasonable.1
III.
We affirm the district court's sentence.
1
Although we perceive no basis for disturbing the
district court's incarcerative sentence, López does point out some
apparent discrepancies between the magistrate-judge's Report and
Recommendation on Plea of Guilty and the change-of-plea hearing
transcript. Nevertheless, because López makes no claim on appeal
that these omissions affected his substantial rights, we need not
examine them further. See United States v. Dominguez Benitez, 542
U.S. 74, 76 (2004) ("[W]e hold that a defendant [raising an
unpreserved Rule 11 error on appeal] is obliged to show a
reasonable probability that, but for the error, he would not have
entered the plea."). He has waived any argument that the change-
of-plea colloquy was inadequate. See United States v. Zannino, 895
F.2d 1, 17 (1st Cir. 1990).
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