United States Court of Appeals For the First Circuit
No. 21-1863
UNITED STATES OF AMERICA,
Appellee,
v.
ROBERTO M. MELENDEZ-HIRALDO, A/K/A COCODRILO,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF PUERTO RICO
[Hon. Francisco A. Besosa, U.S. District Judge]
Before
Lipez and Montecalvo, Circuit Judges, Burroughs,* District Judge.
Jose Luis Novas-Debien on brief for appellant. W. Stephen Muldrow, United States Attorney; Mariana E. Bauzá-Almonte, Assistant United States Attorney, Chief, Appellate Division; and Maarja T. Luhtaru, Assistant United States Attorney, on brief for appellee.
September 21, 2023
* Of the District of Massachusetts, sitting by designation. MONTECALVO, Circuit Judge. Roberto M. Melendez-Hiraldo
("Melendez") appeals from a 194-month sentence imposed after he
pled guilty to using, carrying, brandishing, and discharging a
firearm in furtherance of a crime of violence in violation of
18 U.S.C. § 924(c)(1)(A)(iii) and (2). Melendez challenges the
procedural and substantive reasonableness of his sentence. Having
discerned no error, we affirm.
I. Background1
On June 8, 2018, Melendez was involved in the kidnapping
and murder of a rival gang member, referred to by the parties as
"WGE." WGE had been threatening members of Melendez's gang, so
Melendez, with four other members of his gang, participated in the
killing of WGE to support the gang.
On the day of the murder, Melendez traveled with members
of his gang to the public housing complex where WGE lived. Armed
with guns, Melendez and his codefendants forced WGE out of his
home and into a Toyota Camry. WGE was transported in the Camry to
Barraza's Ward by a codefendant. Other codefendants, along with
Melendez, traveled in a separate vehicle to Barraza's Ward. While
he remained in the car, Melendez watched two codefendants take WGE
1 Because this sentencing appeal follows a guilty plea, we draw the relevant facts from the plea agreement, the undisputed portions of the-change-of-plea colloquy, the presentence investigation report ("PSR"), and the sentencing record. See United States v. Spinks, 63 F.4th 95, 97 (1st Cir. 2023).
- 2 - out of the Camry and saw them shoot WGE multiple times. Although
Melendez did not shoot WGE, a cooperating witness alleged that
Melendez and another codefendant gave a revolver to the person who
first shot WGE.2
On August 19, 2020, Melendez and four codefendants were
charged in a three-count second superseding indictment (the
"indictment") for the kidnapping and murder of WGE. The indictment
charged Melendez with kidnapping resulting in death, in violation
of 18 U.S.C. § 1201(a)(1) and (2); using, carrying, brandishing,
and discharging a firearm during and in relation to a crime of
violence, in violation of 18 U.S.C. § 924(c)(1)(A)(iii) and (2);
and using, carrying, and discharging a firearm during and in
relation to a crime of violence causing murder, in violation of 18
U.S.C. § 924(j)(1) and (2).
On June 21, 2021, Melendez pled guilty to count two of
the indictment, and in exchange the government agreed to dismiss
the remaining counts. Pursuant to the plea agreement, the parties
stipulated that Melendez's guidelines sentence was 120 months, the
minimum term of imprisonment required by statute. The parties
also agreed to jointly recommend a sentence of 164 months, to be
2 Melendez did not file formal objections to the PSR, but, at sentencing, he challenged this statement. The sentencing court rejected his objection and relied on the cooperating witness's statement at sentencing. On appeal, Melendez does not challenge the district court's finding.
- 3 - served consecutively with a previously imposed 46-month sentence
Melendez had received in an unrelated federal case.3 Finally,
Melendez stipulated to the statement of facts incorporated into
the plea agreement. The court accepted Melendez's change of plea.
Melendez's sentencing followed. Pursuant to the plea
agreement, Melendez and the government jointly recommended a
164-month sentence for the firearms offense. At the hearing,
Melendez defended the recommendation before the court, arguing
that 164 months was "more than sufficient punishment,"
particularly given certain mitigating factors discussed in his
sentencing memorandum, including "his family background, or lack
thereof, . . . [the fact that] he's the first to plead guilty,
[and data showing] people age out of crime."
The district court stated twice that the applicable
guidelines sentence for the single count was 10 years, or 120
months, and acknowledged that the parties had agreed to a variant
sentence of 164 months. It also referenced Melendez's age,
employment history, ninth grade education, and history of drug use
as factors relevant to his sentencing.
Before weighing in on the appropriate sentence, the
court summarized the offense and detailed Melendez's criminal
3 In criminal case No. 18-581, Melendez pled guilty to violating 18 U.S.C. § 922(g)(1) by illegally possessing a firearm three months after the killing of WGE.
- 4 - history. Along the way, the court calculated the applicable number
of criminal history points that Melendez would have accrued for
each conviction, noting that Melendez scored additional points for
the instant conviction because he committed it while on escape
status. In the end, the court concluded that Melendez "could have
scored eight criminal history points, establishing a criminal
history category of four," but added that "criminal history points
. . . do not apply for this firearm conviction."
Next, having heard from the parties and considered the
relevant sentencing factors, the district court announced that it
would not be adopting the joint recommendation because it "agree[d]
with the probation officer" that a 164-month sentence did not
adequately "reflect the seriousness of the offense, does not
promote respect for the law, does not protect the public from
further crimes by . . . Melendez, and does not address the issues
of deterrence and punishment."4
A detailed description of the offense followed. After
describing the kidnapping, the court focused on the brutality of
4 During this colloquy, the court stated: "[t]he parties agreed to recommend a varian[t] sentence . . . well, actually it's not a varian[t] sentence. It's within -- it's 10 months to life." We treat this as a misstatement where earlier in the hearing the court properly noted that "[t]he guideline sentence is the minimum term of imprisonment required by statute, which, in this case, is a minimum term of imprisonment of 10 years," or 120 months. We therefore proceed with the understanding that the court understood it was imposing an upwardly variant sentence.
- 5 - the murder, noting that "the victim received 10 shots to the head
and 12 to his upper body," and that even after he was "shot to the
head and dropped to the floor," he "receiv[ed] multiple shots."
The court also noted that just before WGE was murdered, the
codefendant who fired the first shot said, "Llego tu dia" ("[y]our
day had arrived"). The court added that "Melendez and [another]
codefendant" were responsible for "giv[ing] a revolver" to the
first shooter.
When it finished detailing the kidnapping and murder,
the court remarked:
Accordingly -- again, the [c]ourt agrees with the probation officer [that the joint recommendation is inadequate]. . . . Accordingly, it is the judgment of the [c]ourt, [that] . . . Melendez . . . is committed to the custody of the Bureau of Prisons to be imprisoned for a term of 194 months to be served consecutively to the 46-month sentence imposed on him in Criminal [Case] No. 18-581, for a total sentence of 240 months of imprisonment. . . . Upon release . . . Melendez shall be placed on supervised release for a term of five years.
Melendez objected and this timely appeal followed.5
5 Pursuant to Melendez's plea agreement, the government asked the court to dismiss all remaining counts in this case and the companion criminal case, 18-cr-0451 (FAB), against him. The court granted the government's request and dismissed the remaining counts.
- 6 - II. Discussion
We ordinarily review preserved claims of sentencing
error for abuse of discretion. United States v. Montero-Montero,
817 F.3d 35, 37 (1st Cir. 2016). "That review typically starts
with claims of procedural error." Id. Such errors include
"failing to calculate (or improperly calculating) the Guidelines
range, treating the Guidelines as mandatory, failing to consider
the § 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." Gall v. United States, 552 U.S. 38, 51 (2007).
Assuming the sentence is procedurally sound, we then
consider the substantive reasonableness of the sentence under an
abuse of discretion rubric. Id. A sentence is substantively
reasonable if it "reflects 'a plausible sentencing rationale and
a defensible result.'" United States v. Rossignol, 780 F.3d 475,
477 (1st Cir. 2015) (quoting United States v. Martin, 520 F.3d 87,
96 (1st Cir. 2008)). "[O]ur review is limited to determining
whether [the district court's] sentence, 'in light of the totality
of the circumstances, resides within the expansive universe of
reasonable sentences.'" Id. (quoting United States v. King, 741
F.3d 305, 308 (1st Cir. 2014)).
But when a defendant fails to preserve a claim of
procedural or substantive error below, we review for plain error.
- 7 - Montero-Montero, 817 F.3d at 37. "To succeed under plain error
review, an appellant must show '(1) that an error occurred (2)
which was clear or obvious and which not only (3) affected the
[appellant's] substantial rights, but also (4) seriously impaired
the fairness, integrity, or public reputation of judicial
proceedings.'" Id. (alteration in original) (quoting United
States v. Duarte, 246 F.3d 56, 60 (1st Cir. 2001)).
A. Procedural Reasonableness
Melendez lodges several challenges to the procedural
reasonableness of his sentence. He contends that the district
court erred by (1) making conflicting statements about his
applicable guidelines sentence; (2) failing to consider relevant
mitigating factors; (3) not providing specific reasons for
upwardly varying beyond the parties' recommended sentence; (4)
failing to identify its reasons for imposing an upwardly variant
sentence; and (5) not stating clearly whether it was departing or
varying from the applicable guidelines sentence.
As a threshold matter, the government argues that
Melendez waived his procedural challenges because he failed to
preserve his claims below and did not address the plain error
standard in his opening brief. "To preserve a claim of procedural
sentencing error for appellate review, a defendant's objection
need not be framed with exquisite precision." United States v.
Rivera-Berríos, 968 F.3d 130, 134 (1st Cir. 2020) (citing United
- 8 - States v. Soto-Soto, 855 F.3d 445, 448 n.1 (1st Cir. 2017)). It
must, however, be "sufficiently specific to call the district
court's attention to the asserted error." Id. (quoting Soto-Soto,
855 F.3d at 448 n.1).
Here, after the court handed down the sentence, Melendez
made the following objection:
We object to, first of all, the recitation of facts. My client only accepts the stipulation of facts as entered into the plea agreement . . . . There are no proper reasons for the excessively upward variance in the [c]ourt's sentence. As the [c]ourt noted, the proper guideline for the charge is 120 months. The parties came up with an already-included variance as a recommendation of 44 months, which is a total of 164 months. 924(c) convicts have a lower risk[] of recidivism as per US Sentencing Commission studies.
And for those reasons . . . we object to the sentence[] and will entertain the possibility of appealing the variance that was handed down of 30 months on top of the recommended sentence.
Because Melendez alerted the court to a perceived deficiency in
its justification for varying upward, he preserved the two related
claims: (1) that the district court failed to provide specific
reasons for varying upward beyond the parties' recommended
sentence and (2) that the district court did not identify its
reasons for the upward variance. See Rivera-Berríos, 968 F.3d at
134 (concluding that defendant preserved his procedural claim
where "appellant's counsel made clear that he believed that the
- 9 - sentence was 'excessive' and that the court had not articulated
any cognizable grounds that would support an upward variance").
Because the objection does not reach the subject matter
of Melendez's three remaining procedural challenges,6 those claims
are subject to plain error review. But Melendez "does not attempt
to satisfy that standard of review" in his opening brief. United
States v. Rodriguez-Monserrate, 22 F.4th 35, 40 (1st Cir. 2021).
And even in the face of the government raising this deficiency,
Melendez forewent the opportunity to explain by opting not to
reply. Melendez has therefore waived his unpreserved claims. Id.
We review the two surviving procedural claims for abuse
of discretion. Soto-Soto, 855 F.3d at 448 ("Preserved claims of
sentencing error are typically reviewed for reasonableness, under
an abuse of discretion rubric."). This is a multifaceted standard
whereby "we apply clear error review to factual findings, de novo
review to interpretations and applications of the guidelines, and
abuse of discretion review to judgment calls." United States v.
Nieves-Mercado, 847 F.3d 37, 42 (1st Cir. 2017).
Melendez argues that the court erred in imposing an
upwardly variant sentence without stating the specific reasons for
doing so. And that likewise, the court failed to explain why it
6 The remaining claims are: (1) improper understanding of the guidelines range, (2) failure to address mitigating factors, and (3) lack of clarity on whether the court was departing or varying.
- 10 - imposed a sentence exceeding the parties' already upwardly variant
joint recommendation of 164 months of incarceration.
A court commits "significant procedural error" by
"failing to adequately explain the chosen sentence -- including an
explanation for any deviation from the Guidelines range," Gall,
552 U.S. at 51 -- but has no independent obligation to explain its
decision not to adopt a joint recommendation, United States v.
Flores-Nater, 62 F.4th 652, 657 (1st Cir. 2023) ("[T]he court was
not required to explain why it rejected the . . . upwardly variant
sentence recommended by the parties."). Accordingly, we need only
address whether the court adequately explained the variance.
Melendez was sentenced to 194 months in prison, 74 months
over the 120-month statutory minimum sentence -- which is also the
guidelines sentence -- and 30 months over the parties' 164-month
joint recommendation.
When a sentence exceeds the applicable guidelines range,
as it did here, "[the court] must justify the upward variance" by
"articulat[ing] why it believe[s] that the appellant's case
differ[s] from the norm." United States v. Del Valle-Rodríguez,
761 F.3d 171, 176, 177 (1st Cir. 2014). The exact parameters of
this requirement fluctuate because "the greater a deviation from
the [guidelines sentencing range], the more compelling the
sentencing court's justification must be." Id. at 177 (citing
- 11 - United States v. Smith, 445 F.3d 1, 4 (1st Cir. 2006)). Here, the
court provided an adequate explanation for the level of variance.
Typically, we look for an express justification. And to
be sure, here, the court's express explanation consisted of the
type of boilerplate explanation that we have deemed insufficient
before:
[T]he [upwardly variant] sentence recommended by the parties does not reflect the seriousness of the offense, . . . promote respect for the law, . . . protect the public from further crimes by . . . Melendez, and . . . address the issues of deterrence and punishment.
Generic explanations like this that "simply rehearse[] -- but d[o]
not apply -- certain of the factors that Congress has instructed
courts to consider in imposing sentences" are inadequate because
they do not satisfy "the requirement that an upward variance
be '[]moored [to] individual characteristics of either the
offender or the offense of conviction.'" Flores-Nater, 62 F.4th
at 656 (alterations in original) (quoting Rivera-Berríos, 968 F.3d
at 137); see also United States v. Franquiz-Ortiz, 607 F.3d 280,
282 (1st Cir. 2010) (providing defendant-specific reasons for
sentencing decision is necessary to produce "a record that provides
a basis for evaluating the district court's exercise of its broad
authority"). But if the court's rationale can be "teased from the
sentencing record," we consider the requirement satisfied.
Flores-Nater, 62 F.4th at 656.
- 12 - Here, the court's rationale for imposing the 194-month
sentence is apparent from the record. After rejecting the parties'
recommended sentence, the court recounted the horrific details of
the murder and emphasized Melendez's participation by noting he
"had given a revolver to the person who first shot the victim."
The court signaled that these details weighed heavily in its
decision to impose a harsher sentence than the one recommended by
the parties, and also referenced its agreement with the probation
officer's position that the jointly recommended sentence was
inadequate, before concluding that a 164-month sentence was
insufficient to achieve the goals of sentencing. From this, we
draw the fair inference that the upwardly variant sentence was
predicated on the court's belief that the recommended
sentence -- and thus the guidelines -- failed to account for the
gravity of the offense conduct.
The court's rationale was also adequate. The rationale
passes muster if it identifies "idiosyncratic facts [that]
'remove[] th[e] case from the heartland of the applicable guideline
provisions.'" United States v. Bruno-Campos, 978 F.3d 801, 806
(1st Cir. 2020) (quoting United States v. Díaz-Lugo, 963 F.3d 145,
155 (1st Cir. 2020)). Here, the applicable guideline sets the
sentence for defendants "convicted of violating section 924(c)" as
"the minimum term of imprisonment required by statute" regardless
of the severity of the underlying crime or the individual
- 13 - characteristics of the defendant. U.S.S.G. § 2K.2.4(b). Indeed,
unless exempted, the guidelines sentence applies so long as the
defendant was convicted of "us[ing] or carr[ying] a firearm"
"during and in relation to any crime of violence." 18 U.S.C.
§ 924(c)(1)(A). In this case, the crime of violence was "kidnapping
resulting in death." But to be convicted under 18 U.S.C.
§ 924(c)(1)(A)(iii), a death need not result from the crime of
violence. And the fact that the crime of violence resulted in
death here was not accounted for anywhere in the guidelines
calculation because, pursuant to U.S.S.G. § 2K.2.4(b), the
guidelines sentence was the minimum term of imprisonment required
by statute.7 Accordingly, because "[Melendez]'s situation is
different from the ordinary situation covered by the guidelines
calculation," Bruno-Campos, 978 F.3d at 806 (quoting United States
v. Zapete-Garcia, 447 F.3d 57, 60 (1st Cir. 2006)), a variance was
proper. Nor can we fault the district court for concluding that
a roughly six-year variance was warranted in light of the severity
7 To be sure, Melendez was also initially charged with a separate count of brandishing a firearm during or in relation to a "[c]rime of [v]iolence [c]ausing [m]urder." But that charge was dismissed pursuant to the plea agreement and Melendez ultimately pled to the single, lessor count requiring only a "crime of violence." "A sentencing court may take into account relevant conduct underlying counts dismissed as part of a plea negotiation as long as that conduct was not used in constructing the defendant's guideline range." United States v. Fernández-Garay, 788 F.3d 1, 7 (1st Cir. 2015).
- 14 - of the crime, which resulted in a death. We therefore discern no
error.
B. Substantive Reasonableness
Melendez also challenges the substantive reasonableness
of his sentence. Echoing his claims of procedural error, Melendez
contends his sentence was substantively unreasonable because it
was "unmoored from any particular factor."
The government again argues that Melendez failed to
preserve this challenge. This time, the government argues that
the broad objection below could not preserve the specific
substantive reasonableness arguments Melendez makes in his opening
brief. We disagree. Here, Melendez objected to the "excessive[]
upward variance" before reiterating his support for the shorter
jointly recommended sentence, and we have consistently held that
by arguing for a shorter sentence before the district court, a
defendant preserves a challenge to the substantive reasonableness
of his sentence on appeal. See, e.g., United States v.
Bruzón-Velázquez, 49 F.4th 23, 32 (1st Cir. 2022);
Rodriguez-Monserrate, 22 F.4th at 40; United States v.
Ramos-David, 16 F.4th 326, 335 (1st Cir. 2021). We therefore
review for abuse of discretion. See Rodriguez-Monserrate, 22 F.4th
at 41.
There are a broad range of reasonable outcomes in the
sentencing context and our task is simply "to determine whether
- 15 - the sentence falls within [that permissible range]."
Flores-Nater, 62 F.4th at 655 (quoting United States v.
Rivera-Morales, 961 F.3d 1, 21 (1st Cir. 2020)). The components
of a substantively reasonable sentence are a plausible rationale
and a defensible result. United States v. Díaz-Rivera, 957 F.3d
20, 25 (1st Cir. 2020).
We have already established that the court properly
predicated Melendez's upwardly variant sentence on the fact that
the "crime of violence" required for conviction was a premediated
murder, a fact unaccounted for by the guidelines. See supra
Section II(A). "[A]n adequate explanation for an upward variance
and a plausible rationale for that variance are almost always two
sides of the same coin." United States v. Valle-Colón, 21 F.4th
44, 50 (1st Cir. 2021). And this is such a case. Having already
concluded that the court provided a sufficient justification for
imposing the upwardly variant sentence, we need look no further to
find that the rationale here was plausible.
Likewise, for all the reasons we found the variant
sentence justified, we also find it defensible. In addition to
the serious nature of the offense and Melendez's contribution to
it, other sentencing factors contribute to the defensibility of
Melendez's 194-month sentence. Factors that bolster the
defensibility of the sentence include Melendez's history of
- 16 - committing crimes while on "escape status," his history of firearms
offenses, and his lengthy criminal record.8
Having found that the court provided a plausible
sentencing rationale and arrived at a defensible result, we
conclude that Melendez's 194-month sentence was substantively
reasonable. Accordingly, we discern no error.
III. Conclusion
For the foregoing reasons, Melendez's sentence is
affirmed.
8 As the court noted at sentencing, had Melendez's criminal history been calculated and factored into his guidelines sentence, Melendez would have been placed in criminal history category IV. Because criminal history was not a factor in his guidelines sentence, the court's rationale for upwardly varying could have properly rested on Melendez's past convictions.
- 17 -