United States Court of Appeals For the First Circuit
No. 17-1161
UNITED STATES OF AMERICA,
Appellee,
v.
LUIS DANIEL BENÍTEZ-BELTRÁN,
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
Torruella, Lipez, and Barron, Circuit Judges.
Jessica E. Earl, Research and Writing Specialist, Eric Alexander Vos, Federal Public Defender, and Vivianne M. Marrero, Assistant Federal Public Defender, Supervisor, Appeals Section, on brief for appellant. John A. Mathews II, Assistant United States Attorney, Rosa Emilia Rodríguez-Vélez, United States Attorney, and Thomas F. Klumper, Assistant United States Attorney, Acting Chief, Appellate Division, on brief for appellee.
June 13, 2018 BARRON, Circuit Judge. Luis Daniel Benítez-Beltrán
("Benítez") appeals the 120-month prison sentence that he received
after pleading guilty to being, in violation of 18 U.S.C.
§ 922(g)(1), a prohibited person in possession of a firearm.
Benítez contends that the District Court erred by classifying his
prior conviction for attempted murder under Puerto Rico law as a
"crime of violence" that triggers an increase in his base offense
level pursuant to § 2K2.1(a)(4) of the United States Sentencing
Guidelines. Benítez also contends that the District Court's upward
variance from his advisory sentencing range under the Guidelines
was procedurally unsound and that his sentence is substantively
unreasonable. We affirm the sentence.
I.
During the execution of a search warrant at Benítez's
residence in 2013, Puerto Rico police agents found a loaded
revolver hidden behind the drawer of a nightstand. The following
day, the federal government charged Benítez, who is a convicted
felon, with one count of being a prohibited person in possession
of a firearm, in violation of 18 U.S.C. § 922(g)(1).
In November of 2014, Benítez pleaded guilty to this count
pursuant to a plea agreement.1 Benítez, who was then serving a
1 The parties agreed to recommend a sentence of 180 months on the understanding that Benítez had three prior convictions for a "violent felony" under the Armed Career Criminal Act, 18 U.S.C.
- 2 - ninety-year sentence for a 2014 conviction under Puerto Rico law
for aggravated robbery and related weapons law violations,2 was
sentenced for this federal conviction in January of 2017.
A probation officer prepared a presentence report
("PSR") based on the November 2016 edition of the Sentencing
Guidelines. The PSR determined that § 2K2.1(a)(4) of the
Guidelines applied. That guideline establishes the base offense
level that applies to a defendant convicted of unlawful possession
of a firearm if the defendant committed that offense after having
been convicted of a felony that qualifies as a "crime of violence."
Applying that guideline, the PSR determined that Benítez's base
offense level was twenty, when, in the absence of that guideline's
application, his base offense level would have been fourteen. See
U.S. Sentencing Guidelines Manual § 2K2.1(a)(6) (2016).
The PSR concluded that Benítez had a prior conviction
that qualified as a "crime of violence" due to his 1998 conviction
for attempted murder under Puerto Rico law. The PSR stated that
§ 924(e)(1). But, after the Supreme Court's intervening decision in Johnson v. United States, 135 S. Ct. 2551, 576 U.S. ___ (2015), invalidated part of the statutory definition of a "violent felony," both parties ultimately recommended a shorter sentence. 2 The parties' briefs generally refer to the sentence as having a ninety-year duration. We note, however, that Benítez's counsel said at the sentencing hearing that the "total sentence was 115 years, with somewhere between 60 to 65 years as a minimum," and that Benítez's appellate brief at one point also refers to a 115-year sentence.
- 3 - this prior offense so qualified under what is known as the "force
clause" of the Sentencing Guidelines' definition of a "crime of
violence."3
The PSR also applied a four-level enhancement under
§ 2K2.1(b)(4)(B) to Benítez's offense level because the firearm
involved in Benítez's § 922(g) offense had an obliterated serial
number. Finally, the PSR reduced Benítez's offense level by three
levels pursuant to § 3E1.1 due to his acceptance of responsibility.
In sum, the PSR calculated Benítez's total offense level
to be twenty-one. Because the PSR assigned Benítez a criminal
history category of V, the PSR determined that Benítez's advisory
range for his term of imprisonment under the Guidelines was seventy
to eighty-seven months.
After hearing from the parties, the District Court
adopted the PSR's Guidelines calculation. In doing so, the
District Court concluded that Benítez had "only one prior
conviction" for a "crime of violence," namely his 1998 attempted
murder conviction under Puerto Rico law. The District Court then
sentenced Benítez to the statutory maximum prison term of 120
months, see 18 U.S.C. § 922(a)(2), which was a term of imprisonment
just under three years above the upper end of the advisory
3 The force clause provides that a "crime of violence" encompasses any felony that "has as an element the use, attempted use, or threatened use of physical force against the person of another." U.S. Sentencing Guidelines Manual § 4B1.2(a)(1) (2016).
- 4 - sentencing range under the Guidelines. The District Court ruled
that the sentence would run consecutively to any sentence that
Benítez was then serving, which would include his ninety-year
sentence for his Puerto Rico conviction for aggravated robbery.
Benítez objected to the upward variance and then appealed the
sentence.
II.
Benítez first challenges the District Court's conclusion
that he had a prior conviction for a "crime of violence" under
§ 2K2.1(a)(4). Our review of whether Benítez's prior conviction
for attempted murder under Puerto Rico law qualifies as a "crime
of violence" under the Guidelines is de novo. See United States
v. Steed, 879 F.3d 440, 445 (1st Cir. 2018).
A.
The term "crime of violence" in § 2K2.1(a)(4) has the
same meaning as it has in the § 4B1.2 career-offender guideline.
U.S. Sentencing Guidelines Manual § 2K2.1, cmt. n.1 (2016).
Section 4B1.2(a) defines a "crime of violence" to be any offense
punishable by more than one year of imprisonment that either "has
as an element the use, attempted use, or threatened use of physical
force against the person of another" (the so-called force clause)
or is one of several enumerated crimes, including "murder."
Benítez contends that his prior conviction for attempted
murder under Puerto Rico law does not qualify as a "crime of
- 5 - violence." He does so on the ground that this offense, as defined
at the time of his conviction, neither falls within § 4B1.2(a)'s
force clause nor matches one of the offenses enumerated in that
guideline's definition of a "crime of violence."
We need not address Benítez's argument concerning the
force clause. As we explain, his attempted murder conviction is
for an offense that matches one of the guideline definition's
enumerated offenses. See United States v. Ball, 870 F.3d 1, 5
(1st Cir. 2017) ("We may affirm the district court's sentence if
any one of the . . . ways that an offense can constitute a crime
of violence . . . applies here.").
We use a "categorical approach" to determine whether the
offense for which a defendant was previously convicted matches an
expressly enumerated offense under § 4B1.2(a). United States v.
Castro-Vazquez, 802 F.3d 28, 35 (1st Cir. 2015) (quoting Descamps
v. United States, 133 S. Ct. 2276, 2283, 570 U.S. ___ (2013)).
Under that categorical approach, a prior conviction qualifies as
one for a "crime of violence" so long as the elements of the prior
offense encompass no more conduct than do the elements of the
"generic" version of an offense that the guideline expressly
enumerates. Id. (quoting Descamps, 133 S. Ct. at 2283, 570 U.S.
at ___).
To begin our comparative analysis of the elements of
Benítez's offense of attempted murder under Puerto Rico law and
- 6 - the generic version of that offense, we set to one side the fact
that his prior conviction was for attempted murder rather than
simply "murder." That way, we may first focus on the way that
Puerto Rico law defined the offense of "murder" at the time of his
conviction, so that we may determine whether that definition makes
that offense of "murder" a match with one of the enumerated
offenses in § 4B1.2(a).
B.
As we have noted, § 4B1.2(a) does list "murder" among
the expressly enumerated offenses that qualify as a "crime of
violence." So, we must determine whether the generic version of
that offense matches the way that Puerto Rico defined that offense
when Benítez was convicted of attempting to commit that crime. If
the generic version of "murder" is not such a match, then Benítez's
conviction for attempted murder obviously does not match an
enumerated offense.
The parties agree that, at the time of Benítez's
conviction for attempted murder, Puerto Rico defined "murder" as
"the killing of a human being with malice aforethought." Pueblo
v. Lucret Quiñones, 11 P.R. Offic. Trans. 904, 929 (P.R. 1981)
(quoting P.R. Laws Ann. tit. 33, § 4001 (1974)). Benítez's sole
argument that the Puerto Rico offense of "murder" at the time of
his conviction encompassed more conduct than the generic version
of that offense is the following. He asserts that the Puerto Rico
- 7 - offense of "murder" required "purposeful or knowing conduct,"
whereas, he says, the generic version of "murder" requires "conduct
evincing reckless or depraved indifference to dangers." And,
Benítez goes on to contend, in consequence of that difference
between the mens rea element of the way Puerto Rico defined
"murder" and the mens rea element of the generic version of that
offense, the Puerto Rico offense of "murder" criminalized conduct
that the generic version of the offense did not.
We, however, do not agree. Benítez bases his assertion
on the surprising contention that the mens rea of "purpose" and
the mens rea of "knowledge" are less strict than the mens rea of
"recklessness" and the mens rea of "depraved indifference." But
Benítez offers no authority to support that contention, and there
is good reason to think that the opposite would be the case. Cf.
Model Penal Code § 2.02(5) ("When recklessness suffices to
establish an element, such element also is established if a person
acts purposely or knowingly.").
Nor has Benítez persuasively identified any case in
which Puerto Rico applied its "murder" statute to encompass more
conduct than the generic version of the offense, even accepting
his description of the mens rea for "murder" under Puerto Rico law
at the time of his conviction and the mens rea for the generic
version of the offense. Under the categorical approach, however,
there must be a "realistic probability" that Puerto Rico would
- 8 - have applied its "murder" statute at the relevant time to encompass
conduct that the generic definition of "murder" does not
criminalize in order for us to conclude that the Puerto Rico
offense is broader. Moncrieffe v. Holder, 133 S. Ct. 1678, 1685,
569 U.S. ___ (2013) (quoting Gonzales v. Duenas-Álvarez, 549 U.S.
183, 193 (2007)), and the party that seeks "[t]o defeat the
categorical comparison" bears the burden to demonstrate such a
"realistic probability." Id. at 1693, 569 U.S. at ___; see also
Duenas-Álvarez, 549 U.S. at 193.
Accordingly, we reject Benítez's contention that the
Puerto Rico definition of "murder" encompassed less conduct than
the generic offense of "murder."4 And so we next turn to Benítez's
alternative contention, which focuses on the way that "attempt" is
defined under Puerto Rico law relative to the way that it is
defined generically.
C.
In pressing this argument, Benítez contends that there
is no match between the offense for which he was convicted and an
4 Benítez also points out that accomplices can be convicted of "murder" as principals in Puerto Rico. To the extent that he means to contend that for this reason the Puerto Rico offense of "murder" at the time of his conviction was broader than the generic crime, we note that the commentary to § 4B1.2(a) provides that the enumerated crimes of violence include aiding and abetting such offenses. See U.S. Sentencing Guidelines Manual § 4B1.2, cmt. n.1 (2016). And Benítez has not argued that Puerto Rico's definition of "aiding and abetting" encompassed more conduct than the generic definition of "aiding and abetting."
- 9 - enumerated offense under the Guidelines' definition of a "crime of
violence" because, at the time of his conviction, Puerto Rico law
defined "attempt" to encompass more conduct than the generic
definition of "attempt" does. There is no serious question that
"attempting to commit" a "crime of violence" is itself a "crime of
violence." U.S. Sentencing Guidelines Manual § 4B1.2, cmt. n.1
(2016); see also United States v. DeLuca, 17 F.3d 6, 10 (1st Cir.
1994) (noting that the Guidelines are "transpicuous" on the point
that the term "crime of violence" includes "attempting to commit"
such an offense). Thus, so long as Puerto Rico defined "attempt"
at the time of Benítez's conviction in a way that matches the
generic definition of "attempt," then his conviction will qualify
as one for a "crime of violence," given our conclusion about the
match between Puerto Rico's definition of "murder" and what Benítez
contends is the generic definition of "murder."
conviction for attempted murder, Puerto Rico law provided that an
"attempt" exists "when the person commits acts or makes omissions
unequivocally directed to the execution of an offense, which is
not consummated through circumstances extraneous to his will."
Their dispute therefore concerns whether that Puerto Rico law
definition of "attempt" matches the generic definition of
"attempt."
- 10 - Benítez contends that there is no such match. He relies
on the way that "attempt" has been defined as a matter of federal
criminal law to define the generic definition of "attempt."
Specifically, Benítez contends that, under the federal definition
of "attempt" -- and thus, in his view, under the generic definition
-- the intent to commit both the underlying inchoate offense and
the commission of "an overt act constituting a substantial step
toward the commission of the offense" are required. Benítez then
asserts that "attempt" under Puerto Rico law encompassed more
conduct than this federal definition because it defined an
"attempt" to encompass "any act or omission" -- as opposed to "a
substantial step" -- including "mere preparation or slight acts."
In making this assertion, however, Benítez fails to
offer any explanation as to why an act or omission that is
"unequivocally directed to the execution of an offense" would not
be considered a "substantial step" under the generic version of
"attempt." And Benítez's failure is conspicuous given that he
concedes that Puerto Rico law made that element of unequivocalness
an element of "attempt." Nor does such an explanation occur to
us. As we mentioned, Benítez defines the generic version of
"attempt" according to the law of federal "attempt." But, "[i]n
this circuit, as in a number of others, the court has taken the
Model Penal Code as its guide" in defining the federal law of
"attempt." United States v. Doyon, 194 F.3d 207, 210 (1st Cir.
- 11 - 1999).5 And the Model Penal Code both defines "attempt" as "an
act or omission constituting a substantial step," § 5.01(1)(c),
and then goes on to define a "substantial step" as one that is
"strongly corroborative of the actor's criminal purpose." Doyon,
194 F.3d at 211 (quoting Model Penal Code § 5.01(2)). Thus, it
would appear that the definition of "attempt" that Benítez concedes
Puerto Rico had adopted was no broader than the generic definition
of "attempt," as it would appear that an act or omission that is
"unequivocally directed to the execution of an offense" is also
one that is "strongly corroborative of the actor's criminal
purpose."
Finally, we note, as we did in addressing his argument
about "murder," that Benítez bears the burden of proving that there
is a realistic probability that Puerto Rico's definition of his
prior crime applies to more conduct than does the generic
definition of that crime. But, as was the case with respect to
Benítez's assertions about the relative breadth of conduct
encompassed by Puerto Rico's definition of "murder," Benítez has
not pointed to any Puerto Rico case (or even described a
hypothetical case) that shows that Puerto Rico's definition of
5 In United States v. Resendiz-Ponce, 549 U.S. 102 (2007), which Benítez invokes to define federal "attempt," the Supreme Court also relied in part on the Model Penal Code's definition of "attempt." See id. at 107.
- 12 - "attempt" at the time of his conviction for attempted murder
applied more broadly than does the generic definition of "attempt."
Thus, for these reasons, we conclude that Benítez has
not shown that the District Court erred in sentencing him by
classifying his 1998 conviction for attempted murder under Puerto
Rico law as an enumerated "crime of violence." Accordingly, we
reject this first ground for challenging his sentence.
III.
Wholly apart from the "crime of violence" issue, Benítez
also challenges his 120-month prison sentence as procedurally
unsound and substantively unreasonable. "We review criminal
sentences imposed under the advisory guidelines regime for abuse
of discretion. Within this rubric, we assay the district court's
factfinding for clear error and afford de novo consideration to
its interpretation and application of the sentencing guidelines."
United States v. Flores-Machicote, 706 F.3d 16, 20 (1st Cir. 2013)
(internal citations omitted).
We begin with Benítez's procedural challenges to his
sentence. We then turn to his substantive challenge.
Benítez contends that the District Court committed
procedural errors in sentencing him to the statutory maximum of
120 months of imprisonment by (1) considering a prior sentence
that he received for a separate Puerto Rico law conviction, (2)
- 13 - considering charges that were then pending against him in a
separate case under federal law, and (3) failing to explain the
basis for the upward variance from his advisory sentencing range
under the Guidelines. None of these contentions has merit.
1.
Although Benítez asserts that the District Court
impermissibly considered the sentence that he had recently
received for aggravated robbery under Puerto Rico law in imposing
his sentence for his federal conviction, Benítez does not show
that the District Court actually did so. He instead merely points
out that the government "highlighted Mr. Benítez's state court
case and its lengthy sentence" and that the District Court "made
mention" of that case at the sentencing hearing. Because Benítez
neither explains how the District Court relied on the sentence
that he received for aggravated robbery to justify the 120-month
prison sentence nor develops an argument as to why any such
reliance would have been impermissible, this aspect of his
procedural challenge fails. See United States v. Zannino, 895
F.2d 1, 17 (1st Cir. 1990) (explaining that undeveloped arguments
are deemed waived).
2.
Benítez also contends that, in sentencing him, the
District Court impermissibly considered a separate federal
criminal case that was then pending against him in which he was
- 14 - charged with carjacking, robbery, and using a firearm in relation
to a crime of violence, in violation of 18 U.S.C. §§ 2119, 1951,
and 924(c) respectively. Benítez contends that the District Court
should not have considered those pending charges in setting his
sentence in this case because he should have been "presumed
innocent" of those charges.
The District Court expressly stated at the sentencing
hearing, however, that it would not consider those then-pending
charges in its sentencing decision "in as much [as] he is presumed
innocent and he is still facing trial and if convicted that will
be for [the other judge] to determine and assess what is the
punishment for that offense." Thus, the District Court did not
purport to be basing his federal sentence on those pending charges.
To be sure, Benítez does point out that the District
Court later in the hearing went on to refer to his arrest for
carjacking and related offenses while describing the overall
pattern of arrests and convictions in Benítez's criminal history.
But, while we have repeatedly expressed our concern about relying
on a pattern of prior arrests in the absence of proof by a
preponderance of the evidence that the alleged conduct underlying
those arrests occurred, see United States v. Rondón-García, 886
F.3d 14, 26 (1st Cir. 2018) (citing United States v. Delgado-
Sánchez, 849 F.3d 1, 13 (1st Cir. 2017)), Benítez does not contend
that it was impermissible for the District Court to rely on his
- 15 - pattern of prior arrests in setting his sentence. See Zannino,
895 F.2d at 17. Instead, he contends only that the District Court
increased his sentence because of his pending charges,
notwithstanding that the District Court expressly stated that it
was not increasing his sentence due to those charges.
3.
Benítez's final procedural challenge is that the
District Court erred in sentencing him by failing to justify
adequately its decision to vary upward from his advisory sentencing
range. Benítez argues that, even though that range accounted for
his criminal history, the District Court nevertheless relied on
that very same history in varying upwards from the range, which he
says was an error under United States v. Ofray-Campos, 534 F.3d 1,
43 (1st Cir. 2008).
But, Benítez's advisory sentencing range did not
necessarily account for the fact that, as the District Court found,
"the chances of recidivism are extremely high" here in light of
the District Court's finding that Benítez was engaging in crimes
involving "the continued use of weapons, the repeated engagement
in violent actions against individuals" with little to no off time
between convictions and sentences. In this regard, the District
Court explained that the two prior lengthy prison sentences that
Benítez had received -- a sentence of nine years of imprisonment
for attempted murder and related weapons law violations in 1998
- 16 - and a sentence of eighteen years of imprisonment for robbery and
related weapons law violations in 2003 -- "did not serve the
purpose of deterrence." See United States v. Thompson, 681 F.
App'x 8, 12 (1st Cir. 2017) (finding no abuse of discretion in
varying upward from the advisory sentencing range where the
sentencing court "noted that [the defendant's] four convictions
and sentences for 'drug involved' crimes over the course of nine
years indicated that he was engaged in the drug trade essentially
continuously, with no off time suggesting that he had reformed or
was deterred by the law").
In addition, we have explained that "the incidence of
particular crimes in the relevant community appropriately informs
and contextualizes the relevant need for deterrence." Flores-
Machicote, 706 F.3d at 23. And, in this case, the District Court
found that "the current increase in criminality rate and murder we
experience here in Puerto Rico" supported the conclusion that there
was a particular need for deterrence in this case.
Benítez does assert that the District Court erred by not
explicitly addressing some mitigating factors that Benítez had put
forth, such as his young age when he committed his previous crimes,
"the birth of his first grandchild, the death of his brother, or
his relationship with his mother." But, "a sentencing court is
not required to address frontally every argument advanced by the
parties." United States v. Turbides-Leonardo, 468 F.3d 34, 40
- 17 - (1st Cir. 2006). Moreover, a sentencing court acts "well within
its discretion in giving greater weight to [a defendant's] criminal
history than other factors." United States v. Arroyo-Maldonado,
791 F.3d 193, 200 (1st Cir. 2015). Thus, as the District Court
did address several mitigating factors that Benítez had identified
-- such as his current age, his children, and a serious medical
diagnosis -- we cannot say that the District Court abused its
discretion in giving the mitigating factors the weight that it
did, even though the District Court did not specifically mention
the other mitigating factors that Benítez highlights on appeal.
Nor do we find persuasive Benítez's related contention
that the District Court erred by impermissibly "turn[ing] some of
the mitigation into a reason for a statutory maximum sentence."
Benítez points to the District Court's comment that he "has not
been able to refrain himself from engaging in illegal conduct"
despite the fact that he has "good examples from brothers and
family members" and is not "a drug user." But, we do not see how
the District Court abused its discretion in reasoning that the
likelihood of recidivism is high despite the presence of certain
mitigating factors. See United States v. Sagendorf, 445 F.3d 515,
518 n.2 (1st Cir. 2016) (per curiam) ("[T]he requirement that the
sentencing judge consider a § 3553(a) factor that may cut in a
defendant's favor does not bestow on the defendant an entitlement
- 18 - to receive any particular 'credit' under that factor."). Thus, we
reject this ground for Benítez's procedural challenge, too.
We take up, then, Benítez's argument that his 120-month
prison sentence is substantively unreasonable, given that it was
the maximum allowed and was being imposed consecutively to a
ninety-year sentence. We are not persuaded.
"[T]he linchpin of a reasonable sentence is a plausible
sentencing rationale and a defensible result." United States v.
Martin, 520 F.3d 87, 96 (1st Cir. 2008). Here, "[i]n concluding
that the statutory maximum sentence was justified because this
incident . . . was just the latest in a pattern of serious crimes,
the district court offered a plausible rationale for its variance."
United States v. Concepción-Montijo, 875 F.3d 58, 60 (1st Cir.
2017) (per curiam). And, Benítez does not challenge the District
Court's decision to impose the federal sentence consecutively.
See United States v. Ocasio-Cancel, 727 F.3d 85, 89-90 (1st Cir.
2013) (describing a district court's "broad" discretion under 18
U.S.C. § 3584(a) to decide "whether to impose a concurrent or
consecutive sentence"). We thus fail to see what basis there is
for concluding that the District Court erred in setting this
federal sentence and then ordering it to run consecutively, given
that the variance itself was justified and that Benítez does not
- 19 - challenge the decision to impose the federal sentence
consecutively.
Benítez does reference our recent statement that
"[c]ontext matters" in sentencing decisions in contending that
imposing an upwardly variant sentence consecutively to an already
lengthy one is substantively unreasonable. United States v. Matos-
de-Jesús, 856 F.3d 174, 180 (1st Cir. 2017). But, we explained in
Matos-de-Jesús that the sentence there was substantively
reasonable because, in context, it was "responsive to the nature
and circumstances of the offense, the characteristics of the
offender, the importance of deterrence, and the need for condign
punishment." Id. And while Benítez asserts in conclusory fashion
that this consecutive sentence is "an excessive punishment for a
handgun tucked away in a bedroom drawer," he fails to develop any
argument as to why these features of his offense -- when considered
in context, and especially given the evident need for deterrence
in light of his criminal history -- indicate that the District
Court abused its discretion in determining his sentence. See
Zannino, 895 F.2d at 17.
IV.
For these reasons, Benítez's sentence is affirmed.
- 20 -