United States Court of Appeals For the First Circuit
No. 18-1952
UNITED STATES OF AMERICA,
Appellee,
v.
HUMBERTO LÓPEZ-DELGADO,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF PUERTO RICO
[Hon. Francisco A. Besosa, U.S. District Judge]
Before
Thompson, Lipez, and Barron, Circuit Judges.
Andrew S. McCutcheon, Assistant Federal Public Defender, with whom Vivianne M. Marrero, Assistant Federal Public Defender Supervisor, Appeals Section, and Eric Alexander Vos, Federal Public Defender, were on brief, for appellant. Julia M. Meconiates, Assistant United States Attorney, with whom Mariana E. Bauzá-Almonte, Assistant United States Attorney Chief, Appellate Division, and Rosa Emilia Rodríguez-Vélez, United States Attorney, were on brief, for appellee.
August 13, 2020 BARRON, Circuit Judge. Humberto López Delgado ("López")
challenges the procedural and substantive reasonableness of the
sentence that he received for his 2017 conviction for possession
of a machine gun in violation of 18 U.S.C. § 922(o) and
§ 924(a)(2). We affirm.
I.
On June 7, 2016, local law enforcement officers arrested
López at the Luis Llorens Torres Public Housing Project in San
Juan, Puerto Rico, on suspicion of involvement in a recent
homicide. It is undisputed that in a search incident to that
arrest, police seized from López a loaded Glock pistol modified to
shoot automatically, a loaded twenty-two-round capacity Glock
magazine, a cellphone, a clear container filled with a green leafy
substance, and a small cigarette believed to contain synthetic
marijuana.
In a subsequent interview with the police, López stated
that he carried the gun for protection. He further stated that he
had killed a man named "Sica" who lived in the same housing project
and was reportedly abusive toward him. When the police later
attempted to verify this claim, they learned that a man nicknamed
"Sica" was indeed shot before López's arrest, but remained alive
and well after a stay in the hospital. Upon later telling López
of this fact, one law enforcement officer recounted that López
- 2 - "started to cry, and his eyes became red." López reportedly stated
"that he did the job wrong; that he was not able to kill him."
On June 16, 2016, a federal grand jury in the United
States District Court for the District of Puerto Rico indicted
López, charging him with having possessed a machine gun in
violation of 18 U.S.C. § 922(o)(1) and § 924(a)(2). Shortly
thereafter, López's counsel asked Dr. Carol Romey, an experienced
psychologist, to evaluate his client's competency to stand trial.
Romey diagnosed López as suffering from a moderate
intellectual disability and noted that in the past López had been
diagnosed as suffering from bipolar disorder and attention deficit
hyperactivity disorder ("ADHD"). She concluded that López was not
competent to stand trial, but she did mention the concept of
"assisted competency," which might allow the proceedings to
continue if he had family members who could look out for his best
interests during the trial.
In response to Romey's conclusions, on January 26, 2017,
López's counsel formally submitted a request to the District Court
to have his client's competency to stand trial evaluated. Shortly
thereafter, the District Court ordered the federal Bureau of
Prisons ("BOP") to conduct a competency evaluation of López. The
BOP evaluators determined that López was competent to stand trial,
as they found that he was not "suffer[ing] from a severe mental
disorder or defect that would preclude his ability to understand
- 3 - the nature and consequences of the proceedings against him, or his
capacity to assist his attorney in his own defense."
Romey evaluated López in person again in August of 2017.
She stood by her previous diagnosis of intellectual disability and
did not mention whether López's bipolar disorder diagnosis needed
to be revised. Romey did find, however, given López's improved
behavior and mental state since she last saw him, that his ADHD
diagnosis ought to be reviewed and that he "should be considered
competent."
On March 22, 2018, López pleaded guilty to violating 18
U.S.C. § 922(o) and § 924(a)(2), after the District Court
concluded that López was competent to do so. The initial
Presentence Investigation Report ("PSR") issued by the United
States Office of Probation and Pretrial Services calculated a
sentencing range under the United States Sentencing Guidelines
("Guidelines") of thirty-seven to forty-six months of
imprisonment.
López, seeking a more lenient sentence, submitted a
sentencing memorandum that detailed the difficult circumstances of
his upbringing in Puerto Rico, as follows. His father was a
violent addict, who, when López was four years old, pleaded guilty
to sexually abusing López's older sister and was sentenced to
eighteen years in prison. López and his siblings grew up in
poverty, as his mother was never gainfully employed and his father
- 4 - could not provide any financial support. Once López began
attending school, his teachers soon became concerned that he
suffered from behavioral and learning disabilities. López claims
that a "Department of Education specialist" diagnosed him "with
ADHD and learning disabilities, prescribed medication, and placed
[him] in special education classes."
When López was about eight years old, the sentencing
memorandum further recounted, his mother decided to move the family
from Puerto Rico to New York City. Unable to find permanent
housing, López and his family lived in homeless shelters for over
a year and a half. During this time, López's mental health
worsened, and doctors began prescribing him various medicines for
ADHD and bipolar disorder. When López was fourteen years of age,
a switch in medication apparently triggered a change in his
behavior, causing him to become aggressive with teachers and
classmates at school. As a result, López was sent to an inpatient
psychiatric hospital, where he was prescribed therapy and new
medications.
Upon leaving that hospital, according to the sentencing
memorandum, López began using illegal drugs like marijuana and
phencyclidine ("PCP"), which worsened his mental-health problems.
In the ensuing years, López largely lived on the streets, with
occasional visits to psychiatric wards where he was prescribed yet
more bipolar and antipsychotic medication. Sometime in 2014, when
- 5 - López was eighteen years old, a homeless shelter agreed to buy
plane tickets for López and his mother to return to Puerto Rico.
The two moved to the Luis Llorens Torres Public Housing Project
where López was eventually arrested.
López asserted that, due to his traumatic childhood and
the improvement in his behavior since he stopped using drugs, he
should receive a forty-six-month prison sentence, with supervised
release in New York. The government, though it did not challenge
the factual assertions in López's memorandum, did object to the
PSR, as it omitted the facts that López was originally arrested in
connection with a murder and that he had told police he believed
he killed a man named "Sica." It requested an eighty-four-month
prison sentence.
On June 21, 2018, the District Court held a short hearing
in which it postponed sentencing in order to allow the probation
office to respond to the government's contentions and to provide
time for further evaluation of López's mental health. At that
same time, the District Court granted a request by the probation
office for an order permitting it to commission a specialist to
evaluate López's mental health and provide a fresh diagnosis of
the disorders from which he suffered.
On July 21 and 22, 2018, the doctor selected by the
probation office, José Méndez Villarrubia ("Méndez"), commenced an
evaluation of López. He reviewed the BOP's evaluation of López
- 6 - and Romey's second assessment of his competency. In addition,
Méndez met in person with López and conducted several tests of his
own to evaluate López's mental health. Méndez concurred with
Romey's call to revise López's diagnoses in light of his improved
behavior since terminating his drug use. Specifically finding
that López did not suffer from ADHD, Méndez instead diagnosed López
with antisocial personality disorder as well as several
substance-abuse disorders that were in remission while López was
incarcerated. He did not diagnose López with bipolar disorder.
Further, Méndez concluded that López "is dangerous to society" and
that "[f]ollowing society's rules, laws, and community living is
a challenge for him."
The District Court held a sentencing hearing on
September 20, 2018. The District Court heard testimony from law
enforcement officers concerning the remarks López made about
"Sica" after his arrest, as well as their corroboration of the
fact that a man nicknamed "Sica" was shot in May 2016 in the same
housing project where López lived. The District Court also heard
from Méndez, who testified that he did not believe that López
suffered from bipolar disorder but that he did present a danger to
society.
The District Court determined that the PSR correctly
calculated López's recommended sentencing range under the
Guidelines to be thirty-seven to forty-six months of imprisonment.
- 7 - Nevertheless, the District Court concluded that an upward variance
was appropriate. It then imposed a ninety-six-month prison
sentence, which it stated that it understood López would serve in
a prison hospital, with three years of supervised release to
follow. López filed a notice of appeal four days later.
II.
On appeal, López contends that his sentence is both
procedurally and substantively unreasonable. There is a two-step
process for reviewing preserved sentencing challenges. First, we
examine "the procedural component of the sentence for abuse of
discretion." United States v. Innarelli, 524 F.3d 286, 292 (1st
Cir. 2008). "[F]ailing to calculate (or improperly calculating)
the Guidelines range, treating the Guidelines as mandatory,
failing to consider the [18 U.S.C.] § 3553(a) factors, selecting
a sentence based on clearly erroneous facts, or failing to
adequately explain the chosen sentence -- including an explanation
for any deviation from the Guidelines range" are all examples of
procedural errors that could merit resentencing. Gall v. United
States, 552 U.S. 38, 51 (2007). Once we are satisfied that "no
significant procedural error" exists, id., then "we inquire
whether the sentence is substantively reasonable," United States
v. King, 741 F.3d 305, 308 (1st Cir. 2014) (citing Gall, 552 U.S.
at 51).
- 8 - A.
López's first set of procedural challenges concerns
various factual findings that the District Court made. The
government contends that he failed to preserve those challenges.
But, even assuming no forfeiture, our review of the District
Court's factfinding is only for clear error, see United States v.
Mendoza-Maisonet, 962 F.3d 1, 20 (1st Cir. 2020), and we find none.
We begin with López's contention that the District Court
clearly erred in finding that he "has a mental health record
stemming from his substance abuse history, including several
hospitalization[s]." López asserts that this finding is not
sustainable in light of uncontested portions of his sentencing
memorandum that reported that he first began receiving treatment
for his mental health well before he started abusing controlled
substances as a teenager. He argues that this erroneous factual
finding prejudiced him, because it led the District Court to treat
López's mental-health difficulties as if they were solely the
consequence of his choice to use drugs when that was not the case.
We do not agree, however, that the District Court clearly
erred in finding that López has "a mental health record" that
stemmed from drug abuse. The record supportably shows that at
least some of López's mental-health problems are attributable to
his drug use, and the District Court's statement about the
connection between the two -- given the use of the indefinite
- 9 - article "a" to modify "mental health record" -- does not assert
that all of his mental-health problems were attributable to his
drug use.
Nor does this statement amount to a finding that López's
drug use was not itself a response to prior mental-health problems
brought about by his childhood trauma, and so any contention that
it constituted a clearly erroneous finding for that reason is
mistaken. Indeed, the District Court specifically commented on
the traumatic childhood that López endured.
López also contends that the District Court clearly
erred by finding that he did not suffer from bipolar disorder. He
contends that it did so by relying solely on Méndez's conclusion
that López instead suffered from antisocial personality disorder,
when the record showed that he had been diagnosed with bipolar
disorder during his adolescence. In support of this contention,
López relies on an out-of-circuit precedent, United States v.
Olhovsky, 562 F.3d 530, 549 (3d Cir. 2009).
But, as the government points out, in Olhovsky, the
government's psychologist had not even met with the defendant, and
his opinion was at odds with not only the diagnosis of the
defendant's treating doctor but also the opinions of two other
doctors that the defendant had retained, who had each provided
"very specific positive reports of [the defendant's] response to
therapy." Id. at 548. Here, by contrast, the District Court
- 10 - relied on an assessment from a psychiatrist, Méndez, who had
personally interviewed and tested the defendant. Moreover,
Méndez's conclusion that López did not suffer from bipolar disorder
is not inconsistent with the opinion of Romey, whom López had
specifically hired to evaluate his competency to proceed in court.
In her 2017 evaluation, she determined that López had a moderate
intellectual disability, and she called for a revision to his ADHD
diagnosis. But, she was silent with regard to whether López
suffered from bipolar disorder. Given that the bipolar disorder
diagnosis that López identifies in his sentencing memorandum was
apparently offered by the doctor who treated López years prior to
sentencing, when he was not yet an adult, we see no basis in the
record for finding that the District Court clearly erred in relying
on Méndez's contemporary assessment.
That brings us to López's third challenge to the District
Court's factual findings, in which the District Court found that
"this is not a typical case. This is . . . not a case of a typical
felon in possession who may recidivate. This is a person who is
a danger to society." Here, we understand López to argue that the
District Court clearly erred because it had no basis in the record
for finding López to be more dangerous than the typical prisoner.
But, the District Court's finding was adequately
supported by the conclusions in Méndez's report, which detailed
the results of his July 2018 psychodiagnostic tests on López, and
- 11 - Méndez's testimony at the sentencing hearing. In that report, he
concluded that López had a minimal understanding of general
society's mores and that "[h]is views of the world are mediated by
violence, drugs, [and] loyalty to a subculture of drugs and
criminal behaviors." Then, in his testimony at the sentencing
hearing, he stated that López was "inherently dangerous" and that
he was "dangerous to society," a conclusion that Méndez said he
would have reached "even if [López] didn't qualify for the
antisocial personality disorder." The District Court understood
Méndez to be saying that López presented a level of danger to
society that fell outside the norm, as it remarked, with respect
to Méndez's assessment, that "I don't think I have ever heard
anybody say about anybody that a person enjoys behaving badly."
We thus cannot say that the District Court clearly erred in finding
as it did.
López's next claim of procedural error is that the
District Court failed to meet its obligation under 18 U.S.C.
§ 3553(a) to "acknowledge and respond to any properly presented
sentencing argument which has colorable legal merit and a factual
basis." United States v. Ausburn, 502 F.3d 313, 329 (3d Cir.
2007). He asserts in this regard that the District Court failed
to "explain how [López's] childhood trauma factored into the
sentencing calculus," even though that issue was a key part of
López's argument for a more lenient sentence.
- 12 - Here, our review is for abuse of discretion, see United
States v. Cortés-Medina, 819 F.3d 566, 570 (1st Cir. 2016), and we
find none. The District Court did not ignore López's extremely
difficult childhood. In the course of discussing the circumstances
it found pertinent to its sentencing decision, including López's
substance-abuse history, the danger that machine guns like the one
that López possessed present to the public, and Méndez's conclusion
that López was a particularly dangerous individual, the District
Court specifically noted that López "endured a traumatic
childhood" and mentioned the anguish that López's father caused to
his family. Cf. United States v. Clogston, 662 F.3d 588, 592 (1st
Cir. 2011) ("A reviewing court should be reluctant to read too
much into a district court's failure to respond explicitly to
particular sentencing arguments.").
López also asserts that the District Court failed to
consider the need "to provide the defendant with needed educational
or vocational training, medical care, or other correctional
treatment in the most effective manner," 18 U.S.C.
§ 3553(a)(2)(D), when imposing his sentence. "The only time the
district court mentioned rehabilitation or treatment," López
contends, "was during a boilerplate reference to 'fulfilling all
the sentencing objectives.'"
Our review of this claimed error is for abuse of
discretion, see United States v. Pedroza-Orengo, 817 F.3d 829, 835
- 13 - (1st Cir. 2016), and we again find none. The record shows that
rehabilitation and the specific question whether López should be
incarcerated or committed to a medical institution were squarely
considered at the sentencing hearing, with the District Court going
so far as to ask Méndez his opinion on whether López could receive
adequate treatment in a prison hospital.
Finally, López contends that the District Court
committed a procedural error by "failing to justify the extent of
its upward variance" when it sentenced López to ninety-six months'
imprisonment, which is fifty months in excess of the topline
sentence recommended by the Guidelines. He asserts that the
District Court relied upon grounds for the variance -- including
López's possession of a machine gun, the dangerousness of such
guns, López's statements about killing Sica," Méndez's conclusion
that López was an especially dangerous individual, and López's
drug use -- that are either already accounted for in the Guidelines
or are impermissible reasons for extending López's sentence.
Contrary to López's contention, the District Court did
not rely on impermissible grounds in justifying the variance. As
we have explained, it was not erroneous for the District Court to
rely upon Méndez's opinion that López was a danger to society.
Nor do we see how the District Court erred in considering López's
admitted drug use, see United States v. Díaz-Rivera, 957 F.3d 20,
27 (1st Cir. 2020) (noting that one of the factors the sentencing
- 14 - court relied upon in imposing an upward variance was the
defendant's "history of drug use"), or his statements regarding
the shooting of "Sica," see 18 U.S.C. § 3661 ("No limitation shall
be placed on the information concerning the background, character,
and conduct of a person convicted of an offense which a court of
the United States may receive and consider for the purpose of
imposing an appropriate sentence.").
To be sure, when a sentencing court imposes a sentence
outside of the Guidelines range, it is "obliged to explain how
[the defendant's] situation was different from the ordinary
situation covered by, and accounted for, in the guidelines
calculation and thus why such a significant variance was
justified." United States v. Ortiz-Rodríguez, 789 F.3d 15, 18
(1st Cir. 2015). In addition, "a major deviation from [the
Guidelines] must 'be supported by a more significant justification
than a minor one.'" United States v. Martin, 520 F.3d 87, 91 (1st
Cir. 2008) (quoting Gall, 552 U.S. at 50). But, the District Court
offered just such a justification by laying out in careful detail
the circumstances of López's case -- including not only the
particular offense itself, but also the evidence in the record
bearing on the danger he posed to society, such as the alleged
shooting of "Sica" -- to explain why, based on that record
evidence, "a sentence above the guideline range reflects the
seriousness of the offense, promotes respect for the law, protects
- 15 - the public from further crimes by Mr. López, and addresses the
issues of deterrence and punishment."
B.
López concludes by challenging the substantive
reasonableness of his sentence. "The essence of appellate review
for substantive reasonableness is whether the sentence is the
product of 'a plausible . . . rationale and a defensible result.'"
United States v. Rivera-González, 776 F.3d 45, 51 (1st Cir. 2015)
(alteration in original) (quoting Martin, 520 F.3d at 96). Though
we review substantive reasonableness challenges for abuse of
discretion, see United States v. Ruiz-Huertas, 792 F.3d 223, 226
(1st Cir. 2015), we owe "respectful deference . . . to the
sentencing court's exercise of its informed discretion," Martin,
520 F.3d at 96.
López contends that the sentence here was substantively
unreasonable because "the lower court hardly touched on Mr.
López-Delgado's personal circumstances, ignoring or at the very
least minimizing their severity and role in his development,"
resulting in a sentence that was longer than necessary. But, as
we have noted, the District Court made clear it was well aware of
López's extremely traumatic childhood. The District Court
explained that it was ultimately more concerned with the unique
danger it believed López poses to the public. As the District
Court recounted, López carried a pistol modified to shoot
- 16 - automatically, consumed copious amounts of drugs, belonged to a
gang, claimed to have killed a man from his housing project, and
has unusual difficulty conforming to society's rules. Thus, the
District Court provided a plausible rationale for imposing a
sentence that varied upward from the recommended Guidelines range.
Granted, the variance here was substantial. But, in
considering this aspect of the substantive reasonableness of
López's sentence, we must keep in mind that "[i]n most cases, there
is not a single appropriate sentence but, rather, a universe of
reasonable sentences." Rivera-González, 776 F.3d at 52 (citing
United States v. Walker, 665 F.3d 212, 234 (1st Cir. 2011)). Given
the totality of the circumstances in this case, the District
Court's chosen sentence was not outside of the "universe of
reasonable sentences."1 Id.
III.
We affirm.
1 We note that, although the District Court did consider López's need for rehabilitation, as 18 U.S.C. § 3553(a)(2)(D) requires it to do, nothing in the record suggests that the District Court imposed a longer sentence than it otherwise would have issued because it thought he would "benefit from a prison treatment program." Tapia v. United States, 564 U.S. 319, 334 (2011).
- 17 -