United States Court of Appeals For the First Circuit
No. 18-1761
UNITED STATES OF AMERICA,
Appellee,
v.
JONATHAN FRANK MIRANDA-DÍAZ,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF PUERTO RICO
[Hon. Gustavo A. Gelpí, U.S. District Judge]
Before
Howard, Chief Judge, Selya and Lynch, Circuit Judges.
Robert Millán on brief for appellant. Rosa Emilia Rodríguez-Vélez, United States Attorney, Mariana E. Bauzá-Almonte, Assistant United States Attorney, Chief, Appellate Division, and Thomas F. Klumper, Assistant United States Attorney, Senior Appellate Counsel, on brief for appellee.
November 5, 2019 SELYA, Circuit Judge. Defendant-appellant Jonathan
Frank Miranda-Díaz pleaded guilty to one count of possession of a
firearm as a convicted felon. See 18 U.S.C. § 922(g)(1). Varying
upward from the applicable guideline sentencing range (GSR), the
district court sentenced the appellant to a 36-month term of
immurement. Taking aim at the sentencing court's consideration of
both the conduct underlying a dismissed charge and a prior
controlled substance conviction, the appellant submits that his
sentence is both procedurally and substantively unreasonable.
Concluding that the sentence is sound, we affirm.
I. BACKGROUND
We briefly rehearse the relevant facts and travel of the
case. When — as in this instance — a sentencing appeal follows 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. Dávila-González, 595 F.3d 42, 45 (1st Cir. 2010) (quoting
United States v. Vargas, 560 F.3d 45, 47 (1st Cir. 2009)).
On the morning of May 10, 2017, police officers in
Carolina, Puerto Rico, carried out a traffic stop after observing
the appellant drive through a red light. Upon approaching the
appellant's vehicle, the officers spotted a firearm near the
appellant's thigh. Once the appellant admitted that he lacked a
license to carry a firearm, the officers arrested him. At the
- 2 - same time, they seized a .40 caliber Glock pistol loaded with nine
rounds of ammunition and an additional Glock magazine (also loaded
with nine rounds of ammunition) from the vehicle.
During an interview later that morning with Bureau of
Alcohol, Tobacco, Firearms and Explosives (ATF) agents, the
appellant stated that he had obtained the firearm from a friend
the day before and that he was on his way to purchase drugs for
his personal consumption when stopped. He volunteered that he had
arrived in Puerto Rico six days earlier from New York, where he
was on parole "for possession of [one] kilogram of cocaine." A
background check soon revealed that the appellant had previously
been convicted of a crime punishable by imprisonment for more than
one year.
In due course, a federal grand jury sitting in the
District of Puerto Rico returned a single-count indictment,
charging the appellant with possession of a firearm as a convicted
felon. See 18 U.S.C. § 922(g)(1). After some preliminary
skirmishing, not relevant here, the appellant pleaded guilty to
this charge.
At the disposition hearing, the district court heard
arguments of counsel and the appellant's allocution. Emphasizing
the heightened need for deterrence in light of the appellant's
earlier brushes with the law, the government requested a 21-month
prison sentence. Before the appellant's counsel spoke, the court
- 3 - suggested that she address its concern that the appellant was an
individual for whom "the guidelines do not necessary make justice"
and that, therefore, the case "perhaps would warrant an upward[]
variance." In response, counsel noted the appellant's successful
completion of a diversionary drug-treatment program, his work as
a barber while in prison, and the likelihood that he would face an
additional state sentence for violating the conditions of his
parole. In light of these considerations, she deemed a 17-month
prison sentence sufficient. Without objection, the district court
adopted the guideline calculations limned in the PSI Report, set
the appellant's total offense level at 12, and placed him in
criminal history category III. These uncontested determinations
yielded a GSR of 15 to 21 months. After mulling the sentencing
factors elaborated in 18 U.S.C. § 3553(a), the court varied upward
and imposed a 36-month term of immurement.
In the process, the court explained its sentencing
rationale. To begin, the court observed that over the previous
"five [to] six years," the appellant had squandered "opportunity
after . . . opportunity after . . . opportunity" to live in a law-
abiding manner. The court mentioned three relevant data points to
undergird this observation.
First, the court referenced a 2011 robbery charge in
Puerto Rico. Drawing on factual details that the appellant himself
had reported to the probation officer, the court noted that this
- 4 - charge had been reclassified as an illegal appropriation charge
and then dismissed following the appellant's completion of a
diversionary drug-treatment program.1 But, the court observed,
the appellant had absconded from the drug-treatment program at one
point. According to unchallenged statements in the PSI Report, he
was arrested and ordered to serve four months in prison after his
abscondment. He subsequently completed the program only after his
release from that prison stay.
Second, the court noted that in 2016 — only two years
after securing the dismissal of his illegal appropriation charge
— the appellant was found in possession of one kilogram of cocaine,
was charged with possession of a controlled substance in the third
degree, and was ultimately sentenced by a New York court to serve
an incarcerative term, followed by parole.2 Importantly, the
appellant admitted to ATF agents that he was "on parole in New
York for possession of [one] kilogram of cocaine" when he was
arrested.
1 At the disposition hearing, the appellant described the robbery charge as "expunged." On appeal, though, he describes the charge as "dismissed." This latter description is consistent with both the PSI Report and the sentencing court's characterization. 2 The appellant describes this charge as having been "reclassified" from an "initial charge of possession of one kilo[gram] of cocaine" to possession of a controlled substance. Withal, the PSI Report contains no indication that the appellant was ever initially charged with any offense other than possession of a controlled substance in the third degree; and we discern no concrete support elsewhere in the record for the appellant's characterization of this charge as having been "reclassified."
- 5 - Third, the court discussed the circumstances surrounding
the offense of conviction. Again drawing on the unchallenged PSI
Report, the court observed that, during the pendency of his parole,
the appellant had requested and been granted leave to complete his
parole in Puerto Rico. Moreover, the court expressed concern that
the appellant had failed to report to the probation office upon
his arrival in Puerto Rico. To cap the matter, the court noted
that the appellant, despite being fully aware of the conditions of
his parole, had been found with a firearm on his way to purchase
drugs mere days after his arrival in Puerto Rico, in brazen
violation of those conditions. The court concluded that the
appellant "simply [did] not respect the law or respect the
conditions which . . . [were] placed on [him]." The appellant's
continued criminality, in the court's view, bespoke a troubling
"trajectory over the last couple of years."
The court went on to stress the seriousness of the crime
and community-related factors, concluding that the appellant's
offense was "more serious than just a simple mathematical
calculation" and warranted an upward variance of 15 months above
the top of the GSR. Consequently, the court imposed a 36-month
incarcerative sentence.
After the court pronounced the sentence, the appellant
objected to it in general terms as both procedurally and
substantively unreasonable. This timely appeal followed.
- 6 - II. ANALYSIS
Appellate review of a criminal defendant's claims of
sentencing error involves a two-step pavane. See United States v.
Matos-de-Jesús, 856 F.3d 174, 177 (1st Cir. 2017). Under this
bifurcated framework, we first examine the validity vel non of any
claims of procedural error. See id. If the sentence passes
procedural muster, we then examine any challenge to its substantive
reasonableness. See id. Here, the appellant attacks his sentence
both procedurally and substantively. We address each line of
attack in turn.
A. Procedural Reasonableness.
The appellant's procedural plaint focuses on the
district court's treatment of his dismissed illegal appropriation
charge and his prior controlled substance conviction. Although
the appellant objected that the sentence was "procedurally
unreasonable" after the court imposed sentence, his objection was
wholly generic and made no mention of the discrete claims of
procedural error that he now unveils. Such general objections are
inadequate to preserve specific challenges to the sentencing
court's particularized findings because they do not afford the
sentencing court either notice of the asserted claims of error or
an opportunity to rectify those claimed errors. See United States
v. Soto-Soto, 855 F.3d 445, 448 n.1 (1st Cir. 2017); United States
v. Ahrendt, 560 F.3d 69, 76 (1st Cir. 2009). Thus, our review of
- 7 - the appellant's procedural claims is for plain error. See Matos-
de-Jesús, 856 F.3d at 177-78. Under this rigorous standard, the
appellant must show "(1) that an error occurred (2) which was clear
or obvious and which not only (3) affected [his] 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). In this instance, the
first element of the four-part test proves fatal to the appellant's
procedural challenge.
We start with the appellant's contention that the
district court "elasticized his criminal history beyond its
limits" by considering a 2011 robbery charge that had been
reclassified to an illegal appropriation charge and eventually
dismissed following his completion of a diversionary drug-
treatment program. In mounting this contention, the appellant
relies primarily on our decision in United States v. Marrero-
Pérez, 914 F.3d 20 (1st Cir. 2019). There, we reviewed an upward
departure imposed largely on the basis of prior arrests that had
not resulted in convictions, most of which were unsupported by
reliable independent evidence that the underlying conduct had
occurred. See id. at 22-24. We held that error occurs when a
sentencing court imposing an upward departure "relies on an arrest
report, without some greater indicia of reliability that the
conduct underlying the arrest took place." Id. at 24.
- 8 - Consequently, district courts should afford "no weight" to
"arrests not buttressed by convictions or independent proof of
conduct" when fashioning departures. Id. at 22 (citing U.S.S.G.
§ 4A1.3(a)(3)).
The appellant's reliance on Marrero-Pérez is mislaid.
For one thing, Marrero-Pérez involved an upward departure, not —
as here — an upward variance. See United States v. Rodríguez-
Reyes, 925 F.3d 558, 564 (1st Cir.) (distinguishing Marrero-Pérez
on this ground), cert. denied, ___ S. Ct. ___ (2019). The
difference between the two is hardly semantic. A "departure" is
a "term of art under the Guidelines and refers only to non-
Guidelines sentences imposed under the framework set out in the
Guidelines." Id. at 567 (quoting United States v. Aponte-Vellón,
754 F.3d 89, 93 (1st Cir. 2014)). A variant sentence, by contrast,
"result[s] from a court's consideration of the statutory
sentencing factors enumerated in 18 U.S.C. § 3553(a)." Id.
(quoting Aponte-Vellón, 754 F.3d at 93).
This is not the only basis on which we find Marrero-
Pérez inapposite. Even if we assume for argument's sake that
Marrero-Pérez has bite beyond the departure context, the rule of
that case provides that error occurs only when the sentencing court
"equate[s] arrest with guilt" or otherwise gives "weight" to or
"relies on" bare arrest records without sufficiently reliable
corroborating evidence. 914 F.3d at 22-24. No error occurs when
- 9 - the sentencing court "merely refer[s]" to the defendant's
dismissed charges "in the course of relying on certain conduct
that took place in connection with the dismissed charges" and that
conduct is described in unchallenged portions of the PSI Report.
United States v. Mercer, 834 F.3d 39, 50 (1st Cir. 2016) (emphasis
omitted). Where conduct surrounding a dismissed charge is "set
forth in undisputed portions of the [PSI Report]," the district
court is "entitled to rely on that conduct when sentencing" the
defendant. Id.; see Rodríguez-Reyes, 925 F.3d at 568 (noting that
Marrero-Pérez did not purport to overrule Mercer and similar
precedents). This is such a case.
The court below did not equate the appellant's arrest
for robbery with guilt. Nor did it indicate that it was giving
any impermissible weight to either the arrest or the conduct that
gave rise to it. Rather, the court — drawing on the appellant's
own admissions in the unchallenged PSI Report — simply described
the basic procedural background of the illegal appropriation
charge in the course of discussing conduct related to that charge.
This conduct included the appellant's abscondment from the
diversionary drug-treatment program and his subsequent possession
of one kilogram of cocaine just two years after securing the
dismissal of the illegal appropriation charge. These admitted
facts were relevant to the sentencing calculus: they strongly
supported the court's articulated concern that the appellant
- 10 - "simply [did] not respect the law," despite having squandered
"several opportunities" during his various encounters with the
criminal justice system.
Moreover, it is common ground that a sentencing court
"may take into account any [relevant] information that has
sufficient indicia of reliability." United States v. Díaz-Arroyo,
797 F.3d 125, 130 n.3 (1st Cir. 2015). As a general rule, the PSI
Report "bears sufficient indicia of reliability to permit the
district court to rely on it at sentencing." United States v.
González-Rodríguez, 859 F.3d 134, 137 (1st Cir. 2017) (quoting
United States v. Cyr, 337 F.3d 96, 100 (1st Cir. 2003)); see United
States v. Ocasio-Cancel, 727 F.3d 85, 92 (1st Cir. 2013) ("When a
fact is set out in a presentence investigation report and is not
the subject of a timely objection, the district court may treat
the fact as true for sentencing purposes."). This case falls
comfortably within the sweep of the general rule. Within the
circumstances at hand, we discern no error — let alone plain error
— in the district court's brief recitation of procedural facts
furnished by the appellant himself and adumbrated in the
unchallenged PSI Report, notwithstanding that those facts related
to a dismissed charge.
Let us be perfectly clear. "Reliance on bare arrests —
unexplained in the [PSI Report] or elsewhere in the district court
record and 'not buttressed' by 'some greater indicia of
- 11 - reliability' — can indeed be problematic, at least for an upward
departure."3 Rodríguez-Reyes, 925 F.3d at 564 (quoting Marrero-
Pérez, 914 F.3d at 22, 24). In the same vein, we have "cautioned
against district courts relying on mere arrests as indicative of
a defendant's character to justify an upward departure from the
GSR since a criminal charge alone does not equate with criminal
guilt of the charged conduct." United States v. Gallardo-Ortiz,
666 F.3d 808, 815 (1st Cir. 2012). But nothing in our precedents
forbids a sentencing court's mere mention of the undisputed facts
surrounding a dismissed charge as part of a broader assessment of
the defendant's troubling trajectory regarding his serial
encounters with the criminal justice system. See Rodríguez-Reyes,
925 F.3d at 564 n.4. Thus, we discern no procedural error — plain
or otherwise — in the district court's consideration of the conduct
surrounding the appellant's dismissed illegal appropriation
charge. The court's discussion of the charge was confined to facts
3We have significant doubt that the appellant's dismissed illegal appropriation charge was equivalent to a bare arrest record or other dismissed criminal charge, neither of which "equate with criminal guilt of the charged conduct." United States v. Gallardo- Ortiz, 666 F.3d 808, 815 (1st Cir. 2012). The government plausibly argues that the appellant was required to plead guilty to the illegal appropriation offense as a condition of participation in the diversionary drug-treatment program. Puerto Rico law appears to support this agrument. See P.R. Laws Ann. tit. 34A, app. II, Rule 247.1 (stating that a court may, "without returning a verdict of guilty," stay all criminal proceedings and place a defendant in a diversionary treatment program only "[o]nce the defendant has pleaded guilty"). In the last analysis, though, we need not reach this argument — and we take no view of it.
- 12 - that the appellant admitted, which had been incorporated into the
unchallenged PSI Report.
There remains the appellant's skeletal contention that
the district court committed procedural error by considering his
prior conviction for possession of a controlled substance in the
third degree. His brief devotes no more than a single sentence to
this contention, stating conclusorily that the district court
somehow "committed an error in considering the initial charge of
possession of one kilo[gram] of cocaine that was reclassified to
criminal possession of a controlled substance in a New York [s]tate
conviction." Putting to one side the question of whether the
appellant was ever initially charged with "possession of one
kilo[gram] of cocaine," we find that the appellant has waived this
contention.
We need not tarry. Few principles are better settled in
this circuit than that "issues adverted to in a perfunctory manner,
unaccompanied by some effort at developed argumentation, are
deemed waived." United States v. Zannino, 895 F.2d 1, 17 (1st
Cir. 1990). So it is here.4
4 At any rate, we think it plain that the district court did not err by discussing the procedural details of this conviction — as delineated in the unchallenged PSI Report — in the course of evaluating the appellant's history and characteristics and the circumstances precipitating the offense of conviction. See 18 U.S.C. § 3553(a)(1); see also Ocasio-Cancel, 727 F.3d at 92 (explaining that undisputed facts in the PSI Report can be "treat[ed] . . . as true for sentencing purposes").
- 13 - B. Substantive Reasonableness.
This leaves the appellant's contention that his 36-month
sentence is substantively unreasonable. Specifically, the
appellant asserts that the district court lacked a plausible
rationale for imposing an upward variance because its reasoning
was based, at least in part, on the appellant's dismissed illegal
appropriation charge and his conviction for possession of a
controlled substance in the third degree.
Where, as here, a claim of substantive unreasonableness
is preserved, appellate review is for abuse of discretion. See
Matos-de-Jesús, 856 F.3d at 179. We undertake this inquiry mindful
that "reasonableness is a protean concept" in the sentencing
context. 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)). Even so, the inquiry is not standardless: the hallmarks
of a substantively reasonable sentence are a "plausible sentencing
rationale" and a "defensible result." Martin, 520 F.3d at 96.
These are broad parameters, and in any given case there is no
single reasonable sentence "but, rather, a universe of reasonable
sentencing outcomes." United States v. Vargas-García, 794 F.3d
162, 167 (1st Cir. 2015) (quoting Clogston, 662 F.3d at 592).
So, too, we proceed on the understanding that it is not
our task simply to second-guess a sentencing court's considered
decisions about matters squarely within its discretion. See
- 14 - Clogston, 662 F.3d at 593. Even when we are reviewing a
significant upward variance, we must afford "due deference to the
district court's decision that the § 3553(a) factors, on a whole,
justify the extent of the variance." Vargas-García, 794 F.3d at
167 (quoting Martin, 520 F.3d at 92).
As we have explained, there was nothing improper about
the manner in which the district court considered the illegal
appropriation charge. Nor was there anything improper about its
consideration of the controlled substance conviction. Although
the court did refer to the conduct underlying the latter conviction
— that the appellant had been "found in possession of one
kilo[gram] of cocaine" — this reference was based squarely on the
appellant's admission to ATF agents that he was "on parole for
possession of [one] kilogram of cocaine." And to cinch the matter,
the appellant never challenged the PSI Report's description of the
conduct underlying this conviction.
We add that the two charges spotlighted by the appellant
were far from the only factors that informed the district court's
sentencing determination. In explaining its upward variance, the
court made pellucid that it was taking into account all of the
section 3553(a) factors. Such a statement, in itself, is "entitled
to significant weight." Rodríguez-Reyes, 925 F.3d at 568 (quoting
United States v. Calderón-Lozano, 912 F.3d 644, 648 (1st Cir.
2019)). Relatedly, the court discussed the appellant's persistent
- 15 - disrespect for the law, his flagrant violation of the conditions
of his parole, and the alarming rate of gun-related deaths in
Puerto Rico. These observations plainly reflect the section
3553(a) factors, including the need to protect the community, to
deter others from similar criminal conduct, and to promote respect
for the law. See 18 U.S.C. § 3553(a)(2); United States v. Flores-
Machicote, 706 F.3d 16, 22-23 (1st Cir. 2013) (explaining that a
sentencing court "may consider community-based and geographic
factors").
Furthermore, the appellant's repeated return to criminal
behavior despite earlier encounters with the criminal justice
system reflected an abject failure to renounce criminality and
amply justified an upwardly variant sentence. The district court
was entitled to give weight to the appellant's pattern of unalloyed
criminal behavior "when determining the stringency of the
sentence" to be imposed under the section 3553(a) factors.
Gallardo-Ortiz, 666 F.3d at 814-15. Taken together, these
justifications constitute a plausible sentencing rationale — a
rationale tailored to the facts and circumstances of the case at
hand.
We likewise conclude that the district court reached a
defensible result. After undertaking a thorough analysis of the
section 3553(a) factors, the court deemed an upward variance
appropriate and imposed a 36-month sentence. Although the extent
- 16 - of the variance (15 months) was substantial, "even a substantial variance
does not translate, ipso facto, into a finding that the sentence is
substantively unreasonable." Flores-Machicote, 706 F.3d at 25. Sentencing
is "more an art than a science," and the weighing of relevant factors is a
task best left, within wide limits, to the district court's informed
discretion. Clogston, 662 F.3d at 593. Those limits were not exceeded here:
the appellant, a convicted felon, was found in possession of a dangerous
weapon, just days after arriving in Puerto Rico and in direct violation of
the conditions of his parole. To make a bad situation worse, this offense
was the latest occurrence in a pattern of criminality spanning a number of
years — a pattern that emerged despite the fact that the appellant had been
afforded several opportunities to reform his behavior and respect the law.
Under these circumstances, we cannot say that a 36-month sentence, though
upwardly variant, falls outside the wide universe of substantively reasonable
sentences.
That ends this aspect of the matter. Because the district court
articulated a plausible sentencing rationale and achieved a defensible
result, we hold that the challenged sentence was substantively reasonable.
III. CONCLUSION
We need go no further. For the reasons elucidated above, the
appellant's sentence is
Affirmed.
- 17 -