United States Court of Appeals For the First Circuit
No. 18-2010
UNITED STATES OF AMERICA,
Appellee,
v.
HERI E. BRUNO-CAMPOS,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF PUERTO RICO
[Hon. Juan M. Pérez-Giménez, U.S. District Judge]
Before
Kayatta, Selya, and Barron, Circuit Judges.
Raúl S. Mariani Franco on brief for appellant. W. Stephen Muldrow, United States Attorney, Mariana E. Bauzá- Almonte, Assistant United States Attorney, Chief, Appellate Division, and Antonio L. Pérez-Alonso, Assistant United States Attorney, on brief for appellee.
October 22, 2020 SELYA, Circuit Judge. Particularly when prosecuting
criminal cases, government attorneys must take care to turn square
corners: among other things, they must stick to the facts and
reasonable inferences therefrom, abjuring speculation and surmise.
See United States v. Kilmartin, 944 F.3d 315, 337 (1st Cir. 2019)
("The prosecution — which has available to it the immense resources
of the federal government — possesses a significant advantage in
criminal cases, and there seldom is a good reason for a prosecutor
to push the envelope of that advantage."), cert. denied, 140 S. Ct.
2658 (2020). This sentencing appeal offers an example of a
prosecutor who strayed beyond these boundaries. In the end,
though, defendant-appellant Heri E. Bruno-Campos fails to link the
prosecutor's conjecture to the challenged sentence and also fails
to identify any other cognizable sentencing error. Consequently,
we reject his appeal.
I. BACKGROUND
We briefly rehearse the relevant facts and travel of the
case. Where, as here, a defendant appeals a sentence imposed
following a guilty plea, "we draw the facts 'from the change-of-
plea colloquy, the unchallenged portions of the presentence
investigation report (PSI Report), and the record of the
disposition hearing.'" United States v. Miranda-Díaz, 942 F.3d
33, 37 (1st Cir. 2019) (quoting United States v. Dávila-González,
595 F.3d 42, 45 (1st Cir. 2010)).
- 2 - On the evening of November 1, 2017, the San Juan
Intelligence Division of the Puerto Rico Police received
confidential information that individuals in a gray Hyundai were
on their way to the Vista Hermosa Public Housing Project to murder
a named individual. In response, agents were dispatched to the
vicinity of the housing project in unmarked vehicles. While the
agents were on the scene, a white Kia nearly collided with an
unmarked police vehicle. The agents learned that the white Kia
had been reported stolen a week earlier and proceeded to stop it.
As the Kia came to a halt, a passenger exited the vehicle
carrying a gun. The passenger was arrested, and the agents took
from his person a .40 caliber Glock pistol loaded with a high-
capacity magazine containing twenty-two rounds of ammunition. The
pistol had an attached "chip" that allowed it to fire
automatically. From this passenger, the agents also recovered
another high-capacity magazine containing an additional twenty-
two rounds of ammunition and a thirteen-round magazine loaded with
eleven rounds.
Next, the agents proceeded to arrest the driver of the
vehicle (the defendant). From inside the vehicle, they recovered
another Glock pistol loaded with a high-capacity magazine
containing thirty rounds of ammunition. This firearm, too, was
modified to enable automatic fire. To complete the picture, the
agents found another high-capacity magazine loaded with twenty-
- 3 - nine rounds of ammunition in the defendant's pocket and two more
fully loaded fifteen-round magazines under the driver's seat.
A federal grand jury sitting in the District of Puerto
Rico charged the defendant with illegal possession of a machine
gun. See 18 U.S.C. § 922(o). After initially maintaining his
innocence, the defendant reversed his field and entered a straight
guilty plea on May 23, 2018. The probation department filed a PSI
Report and subsequently filed amended versions of it.1 The final
version of the PSI Report recommended a guideline sentencing range
(GSR) of forty-one to fifty-one months.
For reasons that are not readily apparent, the defendant
initially filed a sentencing memorandum that sought a sixty-month
prison sentence — a sentence above the apex of the GSR. In short
order, though, he filed a revised sentencing memorandum, urging a
sentence of forty-one months' imprisonment. At the disposition
hearing, defense counsel renewed the request for a forty-one month
term of immurement. The government disagreed, seeking an upwardly
variant sentence of sixty months' imprisonment. In support, the
prosecutor explained that "even though we have no evidence,
obviously, to determine if the defendant and the codefendant were
the ones that were on their way to kill an individual . . . the
1 The original version of the PSI Report did not account for certain of the defendant's prior convictions. The amended versions of the PSI Report chronicled his entire criminal history and recommended his placement in Criminal History Category III.
- 4 - amount of ammunitions and the type of firearms obviously, at least,
would tell us that they were up to no good."
Nor did the prosecutor stop there. She added that "[i]t
appears that the defendants both were on their way possibly to
harm somebody, because there is no other reason as to why to have
that amount of ammunition, magazines, and particularly those
firearms modified to fire as machine guns."
The district court adopted the guideline calculations
reflected in the final version of the PSI Report. It proceeded to
weigh the sentencing factors limned in 18 U.S.C. § 3553(a).
Pertinently, it explored the defendant's criminal history and
personal characteristics at great length and remarked the serious
purport of the "substantial amounts of ammunition" with which the
defendant was apprehended. In the end, the court concluded that
"the defendant's likelihood of recidivism warrants the protection
of the community from further crimes from the defendant" and,
therefore, an upwardly variant sixty-month term of immurement
comprised a sentence that was both "just and not greater than
necessary." This timely appeal followed.
II. ANALYSIS
Review of a "criminal defendant's claims of sentencing
error involves a two-step pavane." Miranda-Díaz, 942 F.3d at 39.
First, we examine any claims of procedural error. See id. If the
sentence passes procedural muster, we then proceed to address any
- 5 - challenge to its substantive reasonableness. See id. In this
instance, the defendant proffers claims of both procedural and
substantive error. We address those claims sequentially.
A. Claims of Procedural Error.
We ordinarily review claims of procedural error for
abuse of discretion. See United States v. Rivera-Morales, 961
F.3d 1, 15 (1st Cir. 2020). Here, however, the defendant's
procedural claims were not seasonably raised in the district court,
and review is for plain error. See United States v. Duarte, 246
F.3d 56, 60 (1st Cir. 2001). Plain-error review requires four
showings: "(1) that an error occurred (2) which was clear or
obvious and which not only (3) affected the defendant's substantial
rights, but also (4) seriously impaired the fairness, integrity,
or public reputation of judicial proceedings." Id. "The proponent
of plain error (here, the defendant) must carry the devoir of
persuasion as to each of these four components." Kilmartin, 944
F.3d at 330.
1. Double Counting. The defendant first asserts that
the district court committed procedural error by double counting
data points already factored into the formulation of the GSR.
Specifically, he asserts that the sentencing court premised its
decision to vary upward on two factors already accounted for by
the guidelines: the defendant's possession of a fully automatic
- 6 - handgun with "substantial amounts of ammunitions" and his criminal
history.
Although the double counting of sentencing factors may
sometimes constitute error, the defendant's assertions miss the
mark. We have said before, and today reaffirm, that with respect
to sentencing, "double counting is a phenomenon that is less
sinister than the name implies." United States v. Zapata, 1 F.3d
46, 47 (1st Cir. 1993). After all, "[m]ultiple sentencing
adjustments may derive from 'the same nucleus of operative facts
while nonetheless responding to discrete concerns.'" United
States v. Fiume, 708 F.3d 59, 61 (1st Cir. 2013) (quoting United
States v. Lilly, 13 F.3d 15, 19 (1st Cir. 1994)). It follows that
a sentencing court may rely on a factor that is already included
in the calculation of the GSR to impose an upward or downward
variance as long as the court "articulate[s] 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).
In United States v. Díaz-Lugo, we held that the
sentencing court did not err in predicating the defendant's
upwardly variant sentence on the fact that the defendant was caught
with multiple machine guns and four high-capacity magazines
because the relevant sentencing guideline, USSG §2K2.1(a)(4)(B),
- 7 - contemplated only the possession of one machine gun. See 963 F.3d
145, 155 (1st Cir. 2020). So, too, the defendant had committed
multiple violations of his probationary and supervised release
conditions, but the relevant guideline provision, section
4A1.1(d), accounted for only one such violation. See id. Since
such idiosyncratic facts "remove[d] this case from the heartland
of the applicable guideline provisions," we discerned neither
error nor abuse of discretion. Id.
The case at hand is cut from much the same cloth. The
facts of record evince conduct beyond that contemplated by the
relevant guideline provisions. The defendant was arrested while
driving a vehicle containing several weapons, with a substantial
amount of ammunition packed into four separate magazines, two of
which were high-capacity magazines. By contrast, the relevant
guideline provision is triggered by the possession of a single
"semiautomatic firearm that is capable of accepting a large
capacity magazine." USSG §2K2.1(a)(4)(B). For present purposes,
that guideline calculation was supplemented by a two-level
enhancement because the defendant was apprehended with three
firearms. Nothing in either the guideline provision or the
enhancement, however, accounted for the possession of more than
one machine gun, substantial quantities of ammunition, and/or
multiple high-capacity magazines. See USSG §2K2.1(a)(4)(B); USSG
§2K2.1(b). The sentencing court made pellucid its concerns about
- 8 - the seriousness of such firepower and such substantial quantities
of ammunition, and those well-founded concerns sufficed to remove
this case from the heartland of the relevant guidelines. See Díaz-
Lugo, 963 F.3d at 155. There was no error, plain or otherwise.
In a related vein, the defendant submits that the
sentencing court erred when it considered his "prior brushes with
the law." In his view, his prior convictions were fully accounted
for as the building blocks for the construction of his criminal
history category.
Once again, the sentencing court specifically
articulated why it believed the defendant's situation was
sufficiently distinctive to warrant a variance. In particular, it
emphasized the rapidity with which the defendant repeatedly
violated the law. The court noted that this was the defendant's
"fourth known arrest and conviction;" that one of those convictions
occurred while the defendant was imprisoned; and that shortly after
his release from prison, "it only took [the defendant] three months
to again violate the law." In a nutshell, the court articulated
why the temporal aspect of the defendant's criminal history
distinguished his case from the mine-run of cases covered by the
relevant guideline provision. There was no error.
2. Contamination of the Record. The defendant mounts
a second claim of procedural error. He contends that the district
court erred when it "based" its upwardly variant sentence on the
- 9 - "need to protect the community from further crimes" because the
court relied on a "record that had been contaminated with
inflammatory and baseless allegations." Specifically, he contends
that the "court assumed that [he] was a dangerous individual based
on the manipulated, false, inflammatory and incorrect factual
allegations made by the government" concerning his potential
participation in a plot to commit murder.2 Because the defendant
did not object below to this claimed procedural bevue, we review
this challenge under the demanding plain-error standard. See
Duarte, 246 F.3d at 57; see also United States v. López, 957 F.3d
302, 310 (1st Cir. 2020) ("Review for plain error is not appellant-
friendly.").
As an initial matter, we agree with the defendant that
the prosecutor's quoted comments — to the extent that they
suggested that the defendant was involved in a murder plot — lacked
record support.3 The prosecutor's conjecture was nothing more than
2 To the extent that the defendant claims that he had no prior notice of the government's intention to discuss the alleged murder plot at the disposition hearing and, thus, was "blindsided," his claim is insubstantial. After all, the murder plot was referred to in both the affidavit supporting the complaint and in the plea colloquy. 3 The prosecutor's related comment, suggesting that the defendant and his compatriot "were up to no good," is less objectionable. That comment strikes us as falling within the universe of reasonable inferences that might be drawn from the disclosed facts. Cf. United States v. Hernández, 218 F.3d 58, 68 (1st Cir. 2000) (explaining that "[p]rosecutors are free to ask the jury to make reasonable inferences from the evidence submitted at trial").
- 10 - guesswork and, thus, was misplaced. See United States v. Madsen,
809 F.3d 712, 717 (1st Cir. 2016). Moreover, the prosecutor should
have known better: we have long warned about the dangers of such
prosecutorial overreach. See, e.g., United States v. Tierney, 760
F.2d 382, 389 n.9 (1st Cir. 1985).
In an attempt to excuse the prosecutor's conjecture, the
government suggests that she mentioned the supposed murder plot
only as "background information" to explain "why the officers were
patrolling the area." This suggestion reads the record through
rose-colored glasses: for aught that appears, the prosecutor did
not merely provide background information but, rather, speculated
that the defendant was the one involved in the alleged murder plot.
At sentencing — as at other stages of a criminal case — prosecutors
must hew to the record and not indulge in rank speculation. See
Madsen, 809 F.3d at 717. This requirement is unwavering, and there
is no exception for "background information."
To be sure, the government also notes that the prosecutor
acknowledged that "no evidence" existed that the defendant and his
compatriot were actually involved in the supposed murder plot.
But this caveat, while softening the blow, did not give the
government license to speculate about unfounded facts. Cf. id.
Had the prosecutor's statements been relied upon by the sentencing
court, that reliance would have been problematic. See United
States v. Flete-Garcia, 925 F.3d 17, 36 (1st Cir. 2019) (explaining
- 11 - that due process protects defendants by safeguarding against
sentences that are predicated on information that is "false or
materially incorrect" (quoting United States v. Curran, 926 F.2d
59, 61 (1st Cir. 1991))).
The Seventh Circuit has had occasion to examine an
analogous claim of prosecutorial misconduct. See United States v.
Stinefast, 724 F.3d 925, 930-31 (7th Cir. 2013). There, the
appellant argued that the prosecutor engaged in misconduct during
the sentencing hearing by referring to the appellant's damaging
and inadmissible statements to the government's expert.4 Id. The
court of appeals held that the appellant could not show plain error
because, even if the statements were improper, the appellant was
not prejudiced inasmuch as the district court did not "take the
prosecutor's problematic statements into account in imposing
sentence." Id. at 931.
So it is here. Even though we readily assume that the
prosecutor's gratuitous conjecture, unanchored in the record, was
improper, we cannot conclude that the defendant was prejudiced
(and, thus, that the error was plain). We explain briefly.
4 At the disposition hearing in Stinefast, the prosecutor "wanted to put forth on the record" that "[the court was] not considering as part of [its] sentence" information "regarding a psychosexual evaluation of [the appellant]" by the government's expert that it had heard "months and months and months ago[.]" 724 F.3d at 929. As was the case here, the extra-record comments were unfavorable.
- 12 - The third element of the plain-error standard "requires
that the claimed error must be shown to have affected the
appellant's substantial rights." United States v. Bramley, 847
F.3d 1, 7 (1st Cir. 2017). In other words, the proponent of plain
error must demonstrate "a reasonable probability that, but for the
error, the outcome would have been different." Id. Here, the
defendant has not shown that the prosecutor's comment, though
inappropriate, affected his substantial rights.
The decisive fact is that the record contains no
indication that the sentencing court gave the slightest weight to
the inappropriate comment. Indeed, the court made no reference at
all to that comment during the disposition hearing. The most
logical inference, then, is that the court found the comment
irrelevant to the fashioning of the defendant's sentence, cf.
United States v. Lozada-Aponte, 689 F.3d 791, 793 (1st Cir. 2012)
(suggesting that a sentencing judge's failure to mention facts
advanced by a party suggests that the facts were "unconvincing"),
and relied instead on the considerations which it expressly
articulated. And this inference is consistent with the suggestion
in the record that the court was aware that the government had no
proof linking the defendant to any murder plot. Given these facts,
plain error is plainly lacking.
- 13 - B. Claim of Substantive Unreasonableness.
This brings us to the defendant's assault on the
substantive reasonableness of his sixty-month sentence.
Specifically, he argues that the upwardly-variant sentence creates
an "unreasonable sentencing disparity." And because the sentence
is above the GSR, he says that it is "simply unfair under the
totality of the circumstances."
We review challenges to the substantive reasonableness
of a sentence for abuse of discretion. See Holguin-Hernandez v.
United States, 140 S. Ct. 762, 766 (2020); Díaz-Lugo, 963 F.3d at
157. "In the sentencing context, 'reasonableness is a protean
concept.'" United States v. Clogston, 662 F.3d 588, 592 (1st Cir.
2011) (quoting United States v. Martin, 520 F.3d 87, 92 (1st Cir.
2008)). Thus, "[t]here is no one reasonable sentence in any given
case but, rather, a universe of reasonable sentencing outcomes."
Id. Our task, then, is "to determine whether the sentence falls
within this broad universe." Rivera-Morales, 961 F.3d at 20.
We start with first principles: "[t]ypically, a
sentencing court has a more intimate knowledge of a particular
case than does an appellate court." Díaz-Lugo, 963 F.3d at 157.
Consequently, a district court's discretionary determination as to
the length of a particular sentence is due significant deference.
See United States v. Madera-Ortiz, 637 F.3d 26, 30 (1st Cir. 2011).
"As long as we can discern 'a plausible sentencing rationale' which
- 14 - reaches 'a defensible result,' the sentence will be upheld." Id.
at 31 (quoting Martin, 520 F.3d at 96).
When — as in this case — the district court imposes a
variant sentence, an adequate explanation is required. See United
States v. Sepúlveda-Hernández, 817 F.3d 30, 33 (1st Cir. 2016).
But even though "a sentencing court's obligation to explain a
variance requires the court to offer a plausible and coherent
rationale . . . it does not require the court to be precise to the
point of pedantry." United States v. Del Valle-Rodríguez, 761
F.3d 171, 177 (1st Cir. 2014). Viewed through this prism, we think
that the court below provided a sufficient rationale for the
sentence imposed.
To begin, the sentencing court clearly articulated why
it believed this case differed from the mine-run. In this regard,
the court noted that the defendant had a lengthy criminal history,
which was temporally proximate to the offense of conviction.
Additionally, the court pointed to the defendant's high risk of
recidivism, which "warrant[ed] the protection of the community
from further crimes from the defendant[,]" and the "substantial
amounts of ammunition" with which the defendant was found. These
considerations were directly relevant to the sentencing calculus,
making the court's sentencing rationale eminently plausible.
Equally as important, the sixty-month sentence
represented a defensible outcome. While the sentence constitutes
- 15 - a nine-month upward variance from the top of the GSR, the mere
fact that a sentence varies from the GSR does not, without more,
render it substantively unreasonable. See Madsen, 809 F.3d at
720; United States v. Flores–Machicote, 706 F.3d 16, 25 (1st Cir.
2013). Here, there is no "more."
The sentencing court carefully considered and thoroughly
reviewed the pertinent 18 U.S.C. § 3553(a) factors. The court
proceeded to determine that an above-the-range sentence was "just
and not greater than necessary" to afford condign punishment. It
then closed the loop by choosing a relatively modest upward
variance: nine months. This modest variance was well within the
ambit of the court's discretion.
We are left, then, with only the defendant's
remonstrance that his sixty-month term of immurement creates an
"unreasonable sentencing disparity." But this remonstrance never
gets out of the starting gate. Having made the allegation, the
defendant does nothing to put any meat on its bare bones.
"We have admonished before that parties act at their
peril in leaving 'the court to do counsel's work,' and we are
reluctant to reward such tactics." Flete-Garcia, 925 F.3d at 38
(quoting United States v. Zannino, 895 F.2d 1, 17 (1st Cir. 1990)).
Counsel has an obligation not merely to make claims, but to develop
them. See Zannino, 895 F.2d at 17. Given the defendant's failure
- 16 - to develop any argument in support of his clam of disparity, we
consign that claim to the scrap heap.
That ends this aspect of the matter. The district
court's plausible sentencing rationale, coupled with its easily
defensible choice of a sixty-month sentence, combined to blunt the
defendant's claim of substantive unreasonableness.
III. CONCLUSION
We need go no further. For the reasons elucidated above,
the judgment of the district court is
Affirmed.
- 17 -