United States v. Fuentes-Echevarria

856 F.3d 22, 2017 WL 1547274, 2017 U.S. App. LEXIS 7698
CourtCourt of Appeals for the First Circuit
DecidedMay 1, 2017
Docket16-1176P
StatusPublished
Cited by11 cases

This text of 856 F.3d 22 (United States v. Fuentes-Echevarria) is published on Counsel Stack Legal Research, covering Court of Appeals for the First Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Fuentes-Echevarria, 856 F.3d 22, 2017 WL 1547274, 2017 U.S. App. LEXIS 7698 (1st Cir. 2017).

Opinion

HOWARD, Chief Judge.

Raymond Fuentes-Echevarria challenges the procedural reasonableness of a forty-eight-month sentence imposed following his guilty plea for illegal possession of a machine gun. He also brings an ineffective assistance of counsel claim. After careful consideration, we affirm his sentence and dismiss his ineffective assistance claim without prejudice.

I.

On September 15, 2014, police officers stopped Fuentes, who was driving his Honda Accord in reverse in the middle of a street, near a known drug trafficking point in San Juan, Puerto Rico. 1 While one officer issued a ticket to Fuentes, a canine trained to detect narcotics, accompanied by another officer, marked two separate locations on Fuentes’s vehicle. Fuentes fled the scene and was not arrested.

Officers subsequently sealed Fuentes’s vehicle, transported it to police headquarters, and obtained a search warrant. A subsequent search of the vehicle revealed a secret compartment near the center of the dashboard. From the compartment, officers seized a .40 Glock pistol modified to fire automatically, several gun magazines, and 108 rounds of ammunition. On September 18, 2014, a grand jury returned a sealed indictment charging Fuentes with illegal possession of a machine gun, in violation of 18 U.S.C. § 922(o) and § 924(a)(2).

Fuentes was arrested about a year later, in July 2015. He initially pled not guilty, and a trial was scheduled. But he ultimately moved to change his plea mere days before the trial was set to begin, and entered a straight plea—that is, without a plea agreement—to the sole charge in the indictment.

Fuentes’s Presentence Report (“PSR”), to which he did not object, indicated that his criminal history category was I, and that his Base Offense Level (“BOL”) was eighteen, pursuant to U.S.S.G. § 2K2.1(a)(5). However, because Fuentes accepted responsibility, his total offense level (“TOL”) was reduced to sixteen, see U.S.S.G. § 3.El.l(a), thus setting the applicable Guidelines Sentencing Range (“GSR”) at twenty-one to twenty-seven months. At the sentencing hearing, Fuentes recommended a bottom-of-the-GSR sentence of twenty-one months, while the government asked for sixty. After reviewing the facts of this case and expressing a heightened need for community deterrence, the judge sentenced Fuentes to forty-eight months’ imprisonment, followed by thirty-six months of supervised release.

On appeal, Fuentes challenges the reasonableness of his sentence on two grounds. He contends that the district court erred by failing to apply an additional one-level reduction to his TOL for acceptance of responsibility under § 3El.l(b). He also argues that the district court’s reliance on certain community *25 factors did not justify the upward variance. Finally, Fuentes brings an ineffective assistance of counsel claim. We address each in turn.

II.

A. Sentencing Challenges

We review criminal sentences “under a deferential abuse-of-discretion standard.” United States v. Martin, 520 F.3d 87, 92 (1st Cir. 2008) (quoting Gall v. United States, 552 U.S. 38, 56, 128 S.Ct. 586, 169 L.Ed.2d 445 (2007)). In applying this standard, we examine a sentence’s procedural and substantive reasonableness. United States v. Dávila-González, 595 F.3d 42, 47 (1st Cir. 2010). Here, Fuentes assigns only procedural errors to his sentence. See Martin, 520 F.3d at 92 (noting that “failing to calculate (or improperly calculating) the Guidelines range” is procedural); United States v. Narváez-Soto, 773 F.3d 282, 286-87 (1st Cir. 2014) (treating a challenge about purportedly impermissible sentencing considerations as procedural). Unpreserved procedural challenges engender plain error review. Dávila-González, 595 F.3d at 47. In these circumstances, we will reverse the district court only upon a showing “(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.” United States v. Duarte, 246 F.3d 56, 60 (1st Cir. 2001)

First, Fuentes argues that while the district court appropriately reduced his TOL by two levels under U.S.S.G. § 3El.l(a) for acceptance of responsibility, it erred by not reducing the TOL by an additional level under § 3El.l(b). Section 3El.l(b) provides, in relevant part: “If the defendant qualifies for a decrease under subsection (a), the [BOL] determined prior to the operation of subsection (a) is level 16 or greater, and upon motion of the government ... decrease the offense level by 1 additional level.” U.S.S'.G. § 3El.l(b) (emphasis added). The government did not make such a motion, and Fuentes did not request it either in opposition to the PSR or during sentencing.

We need not decide—as the government suggests—whether Fuentes waived or merely forfeited his challenge by failing to raise it below, as his claim falters on plain error review. See, e.g., United States v. Acevedo-Sueros, 826 F.3d 21, 24 (1st Cir. 2016). The district court did not commit an error, plain or otherwise, in not granting the additional reduction sua sponte. As we have previously held in Acevedo-Sueros, 826 F.3d at 24, not only does the plain text of § 3El.l(b) provide that the government must first make a motion for the reduction, 2 but the relevant commentary for this section also emphasizes the government’s discretion to refuse to do so:

Because the Government is in the best position to determine whether the defendant has assisted authorities in a manner that avoids preparing for trial, an adjustment under subsection (b) may only be granted upon a formal motion by the Government at the time of sentencing.

Acevedo-Sueros, 826 F.3d at 24 (quoting § 3E.1.1(b) cmt. n.6). Accordingly, the district court did not err in not awarding the additional reduction.

Discerning no error on this front, we proceed to Fuentes’s next challenge, *26 which he preserved below. Fuentes maintains that the court’s decision to impose a forty-eight-month variant sentence “lacked factual support,” 3 because it was heavily premised on the court’s concern with “general violence” in the community. For instance, he points to the sentencing court’s statement that it was “sick and tired of violent crimes and guns.” He posits that the court went “too far” in “speculat[ing] about the lives of violent criminals,” at the expense of failing to consider facts specific to his case. 4

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Bluebook (online)
856 F.3d 22, 2017 WL 1547274, 2017 U.S. App. LEXIS 7698, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-fuentes-echevarria-ca1-2017.