United States v. Rivera-Berrios

968 F.3d 130

• Court: Court of Appeals for the First Circuit
• Decided: August 3, 2020
• Docket: 19-1467P
• Status: Published

Opinion

United States Court of Appeals For the First Circuit

No. 19-1467

UNITED STATES OF AMERICA,

Appellee,

v.

JULIAN G. RIVERA-BERRÍOS,

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, Selya, and Barron, Circuit Judges.

Rafael F. Castro Lang on brief for appellant. W. Stephen Muldrow, United States Attorney, Mariana E. Bauzá- Almonte, Assistant United States Attorney, Chief, Appellate Division, and Antonio L. Perez-Alonso, Assistant United States Attorney, on brief for appellee.

August 3, 2020 SELYA, Circuit Judge. After defendant-appellant Julian

G. Rivera-Berríos entered a guilty plea to a single count charging

him with illegal possession of a machine gun, see 18 U.S.C.

§ 922(o)(1), the district court sentenced him to a forty-two-month

term of immurement — a year above the top of the guideline

sentencing range. The appellant challenges this upwardly variant

sentence, asserting that the sentencing court erred by (among other

things) varying upward from the range without adequately

distinguishing his case from the mine-run of machine gun possession

cases. Because the record reveals nothing that distinguishes this

case from a garden-variety machine gun possession case within the

contemplation of the sentencing guidelines, we vacate the

appellant's sentence and remand for resentencing within the

guideline sentencing range.

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 glean the facts from the plea colloquy, the

presentence investigation report (PSI Report), and the transcript

of the disposition hearing. See United States v. Miranda-Díaz,

942 F.3d 33, 37 (1st Cir. 2019).

In July of 2018, law enforcement officers were

surveilling a restaurant in Bayamón, Puerto Rico, hoping to locate

a federal fugitive. During this surveillance, the officers

- 2 - observed the appellant, then age twenty-eight, interacting with

the fugitive. When some of the officers entered the restaurant to

effectuate the fugitive's arrest, other officers (charged with

perimeter security) saw the appellant toss a firearm and a detached

magazine out of a window. The firearm proved to be a Glock machine

pistol equipped with a device that enabled it to fire automatically

and loaded with a high-capacity magazine containing eighteen

rounds. The detached magazine carried a like number of rounds.

The appellant was arrested, and a federal grand jury

sitting in the District of Puerto Rico indicted him within a matter

of days. The indictment contained two counts, one charging the

appellant with being a felon in possession of a firearm and

ammunition, see 18 U.S.C. § 922(g)(1), and the second charging him

with illegally possessing a machine gun, see id. § 922(o)(1). The

appellant initially maintained his innocence as to both charges.

In January of 2019, the appellant reversed his field and

entered a straight guilty plea to the charge of illegal possession

of a machine gun.1 Thereafter, the probation office prepared and

submitted the PSI Report. The Report noted that the appellant had

been living with his girlfriend and their two young children, that

he had worked at various jobs, that he had no prior criminal

1Subsequent to the return of the indictment, the government realized that the appellant had never been convicted of any previous crime. Consequently, it dropped the felon-in-possession charge.

- 3 - record, and that he claimed to have purchased the firearm for self-

protection. It also noted his frequent use of marijuana. After

reviewing the details of the offense and finding no aggravating

circumstances warranting a variance — for example, there was no

evidence that the appellant had employed the gun in any criminal

venture or (for that matter) had ever used it — the PSI Report

calculated the guideline sentencing range as twenty-four to thirty

months.2 Neither the government nor the appellant challenged this

calculation, and both sides recommended that the court impose a

sentence at the low end of the range.

Before imposing sentence, the district court mentioned

a few biographical facts pertaining to the appellant. Shifting

gears, the court spoke at some length about the incidence of

machine guns and related violence in Puerto Rico. The court then

sentenced the appellant to an upwardly variant term of immurement:

forty-two months. This timely appeal followed.

2 The underlying computations are straightforward. With exceptions not relevant here, the statute of conviction makes it "unlawful for any person to transfer or possess a machinegun." 18 U.S.C. § 922(o)(1). Building on this proscription, the guidelines assign a base offense level of twenty to a prohibited person in illegal possession of a machine gun. See USSG §2K2.1(a)(4)(B). Here, the base offense level was reduced by three levels for acceptance of responsibility. See id. §3E1.1. Because the appellant was a first-time offender, he registered a criminal history score of zero and fell into criminal history category I. His total offense level of seventeen, paired with his criminal history category, yielded the guideline sentencing range.

- 4 - II. ANALYSIS

We review preserved claims of sentencing error for abuse

of discretion. See Gall v. United States, 552 U.S. 38, 46 (2007);

United States v. Martin, 520 F.3d 87, 92 (1st Cir. 2008). Under

this approach, we assay the sentencing court's factual findings

for clear error and evaluate its legal conclusions de novo. See

United States v. Díaz-Lugo, 963 F.3d 145, 151 (1st Cir. 2020);

United States v. Flores-Machicote, 706 F.3d 16, 20 (1st Cir. 2013).

Typically, we first examine claims of procedural error and inquire

into the substantive reasonableness of a sentence only after it

has passed procedural muster. See Miranda-Díaz, 942 F.3d at 39;

Martin, 520 F.3d at 92.

Here, the government contends that we should review the

appellant's procedural claims for plain error because (in its view)

his objections below lacked sufficient specificity. We reject

this contention. To preserve a claim of procedural sentencing

error for appellate review, a defendant's objection need not be

framed with exquisite precision. See United States v. Soto-Soto,

855 F.3d 445, 448 n.1 (1st Cir. 2017); cf. Bryant v. Consol. Rail

Corp., 672 F.2d 217, 220 (1st Cir. 1982) (explaining that counsel

did not have to "cite to the specific rule or use any particular

form of words" to preserve evidentiary objection). It is enough

if the objection is "sufficiently specific to call the district

- 5 - court's attention to the asserted error." Soto-Soto, 855 F.3d at

448 n.1.

In the court below, the appellant's counsel made clear

that he believed that the sentence was "excessive" and that the

court had not articulated any cognizable grounds that would support

an upward variance. We think those statements were adequate to

preserve the appellant's principal claim of procedural error: that

the district court impermissibly grounded its upward variance on

an improper factor (that is, a factor already fully accounted for

by the applicable guidelines). Consequently, we review this claim

for abuse of discretion.

Having clarified the standard of review, we proceed to

put this claim of procedural error into perspective. To do so, we

first revisit the basic architecture of the advisory sentencing

guidelines. Our starting point is the Sentencing Reform Act of

1984, Pub. L. No. 98-473, tit. II, ch. II, 98 Stat. 1987, in which

Congress crafted a neoteric framework for imposing sentences in

federal criminal cases. As relevant here, the statutory scheme

lays out a myriad of factors that a sentencing court "shall

consider" and requires that the court "state . . . the reasons"

for its choice of a particular sentence. 18 U.S.C. § 3553(a),

(c).

Although articulating this statement of reasons does not

require a sentencing court to offer an explanation of its

- 6 - sentencing decision that is "precise to the point of pedantry,"

United States v. Sepúlveda-Hernández, 817 F.3d 30, 33 (1st Cir.

2016) (quoting United States v. Turbides-Leonardo, 468 F.3d 34, 40

(1st Cir. 2006)), the explanation must elucidate the primary

factors driving the imposed sentence, see United States v. Rivera-

Morales, 961 F.3d 1, 18 (1st Cir. 2020). This requirement serves

as an important check on the sentencing court. As we have

cautioned, just because "a sentencing court possesses the raw power

to deviate from the guidelines does not mean that it can (or

should) do so casually." Martin, 520 F.3d at 91. The extent of

the explanation required will vary in direct proportion to how far

— if at all — the sentencing court strays from the guideline

sentencing range. See United States v. Montero-Montero, 817 F.3d

35, 37 (1st Cir. 2016) (observing that burden to provide

explanation "grows heavier" when sentence is outside guideline

sentencing range). It follows that when a court imposes an

upwardly variant sentence, it must provide a correspondingly

cogent explanation. See United States v. Fields, 858 F.3d 24, 31

(1st Cir. 2017); Montero-Montero, 817 F.3d at 37.

Before announcing its sentence, the district court

described the factual circumstances surrounding the offense of

conviction, embraced the guideline calculations limned in the PSI

Report, and offered a two-sentence biography of the appellant. It

then dwelled at some length on the pervasiveness of violent crime,

- 7 - murder, and machine guns in Puerto Rico. The court made pellucid

that the driving force behind the upward variance — a full year

over the top of the guideline sentencing range — was the nature of

the firearm that the appellant possessed: a machine gun.

The appellant assigns error, arguing that the nature of

the firearm, without more, was insufficient to warrant the upward

variance. In his view, the guideline sentencing range already

fully accounted for the nature of the firearm, and the court never

pointed out any way in which his offense conduct differed from the

mine-run of ordinary machine gun possession cases. We turn

directly to this argument.

The guideline provision underpinning the appellant's

base offense level is USSG §2K2.1(a)(4)(B). In pertinent part,

this provision directs a base offense level of twenty if the

"offense involved" a "firearm that is described in 26 U.S.C.

§ 5845(a)" and the defendant was a "prohibited person" at the time

of the offense. In turn, 26 U.S.C. § 5845(a) includes "machinegun"

in its definition of "firearm," and section 5845(b) defines a

machine gun as "any weapon which shoots . . . automatically more

than one shot, without manual reloading, by a single function of

the trigger."3 The guideline sentencing range was derived largely

3 The appellant does not dispute either that his firearm qualified as a machine gun or that, as a marijuana user, he was a prohibited person, see 18 U.S.C. § 922(g)(3); USSG §2K2.1, cmt. n.3.

- 8 - from this guideline provision, with routine adjustments. See supra

note 2. In varying upward from this range, the sentencing court

appears to have relied on nothing beyond the mere fact that the

offense of conviction involved a machine gun. The court did not

identify any aggravating circumstance related to the appellant —

a first-time offender. Nor did it identify any aggravating

circumstance related to the offense of conviction — a non-violent

and victimless crime. And, finally, our independent review of the

record discloses no aggravating circumstances.

By the same token, the government — in its presentation

at sentencing — identified no aggravating circumstances. Indeed,

by recommending the imposition of a sentence at the low end of the

guideline sentencing range, the government implicitly conceded the

absence of any such exacerbation.

In its appellate brief, the government does mention,

albeit in passing, two potentially aggravating circumstances.

First, it alludes to the number of rounds of ammunition found in

the appellant's possession. In this instance, though, the amount

of ammunition was entirely consistent with simple possession of a

machine gun. There was no large cache of ammunition.

Second, the government says that the appellant committed

the offense of conviction "while he was seen with a federal

fugitive and his co-defendant . . . , who [later] pleaded guilty

to being a convicted felon in possession of two pistol magazines."

- 9 - The appellant told the probation officer, without contradiction,

that he was at the restaurant with "friends" and that he knew his

codefendant "from school gatherings." The record contains nothing

to show that the appellant knew the fugitive. Nor does it contain

anything to show that the appellant knew of his friends' criminal

ties and, in any event, he was free to socialize with whomever he

pleased. In the absence of some valid restriction on the

appellant's freedom of association (say, a probation condition) or

some indication of a joint venture, the company that the appellant

kept, without more, would not support an upward variance.

As far as we can tell, the sole factor upon which the

sentencing court relied as a basis for the upward variance was the

nature of the firearm involved in the offense of conviction — and

the court did not explain why this factor, which was already fully

accounted for by the sentencing guidelines, was entitled to extra

weight. Instead, the court's explanation of its sentence focused

almost exclusively on the "highly dangerous and unusual" nature of

machine guns in general. It noted the efficient lethality of such

weapons, stating that "[a] modern machine gun can fire more than

one thousand round[s] a[] minute allowing a shooter to kill dozens

of people within a matter of seconds"; and it also noted the

inherently illegal nature of machine guns, stating that "machine

guns largely exist on the black market." These concerns are

universal in their application, and we have no reason to believe

- 10 - that they were not factored into the mix when the Sentencing

Commission set the base offense level for the offense of

conviction.

It is settled beyond hope of contradiction "that 'when

a sentencing court relies on a factor already accounted for by the

sentencing guidelines to impose a variant sentence, [it] must

indicate what makes that factor worthy of extra weight.'" Díaz-

Lugo, 963 F.3d at 155 (alteration in original) (quoting Fields,

858 F.3d at 32); see United States v. Zapete-Garcia, 447 F.3d 57,

60 (1st Cir. 2006). The factor relied on by the district court —

that the offense involved a machine gun — was already fully

accounted for in the guideline calculus. And the record is devoid

of any basis for giving that factor extra weight here. We

conclude, therefore, that the appellant's possession of a machine

gun, unaccompanied by any hint of an explanation as to how his

crime differed from the mine-run of machine gun possession cases

within the contemplation of the sentencing guidelines, was

insufficient by itself to support the upward variance.

To be sure, in explicating the sentence, the district

court remarked "that violent crimes and murder are occurring at

all hours of the day in Puerto Rico, in any place on the island,

even on congested public highways, in shopping centers, public

basketball courts, and at cultural events." But even though such

community characteristics may be relevant at sentencing, see

- 11 - United States v. Ortiz-Rodríguez, 789 F.3d 15, 19 (1st Cir. 2015),

"the section 3553(a) factors must be assessed in case-specific

terms." Flores-Machicote, 706 F.3d at 23. In other words, a

"court's appraisal of community-based considerations does not

relieve its obligation to ground its sentencing determination in

individual factors related to the offender and the offense."

United States v. Rivera-González, 776 F.3d 45, 50 (1st Cir. 2015).

It is that case-specific nexus that is totally lacking in this

case. See United States v. Ofray-Campos, 534 F.3d 1, 44 (1st Cir.

2008) (concluding that "generic reference to 'violence' . . . did

not justify" upward variance imposed).

The government's appellate brief does not fill this

void. Attempting to justify the upward variance, it argues that

we should give decretory significance to the sentencing court's

statement that it considered all of the section 3553(a) factors.

But the mere fact that the court considered all of the relevant

factors cannot justify an upward variance when those factors,

whether taken singly or in combination, do not form a permissible

basis for an upward variance. See Flores-Machicote, 706 F.3d at

21.

So, too, the district court referenced "the seriousness

of the offense," the need to "promote[] respect for the law" and

"protect[] the public from further crimes by [the appellant]," and

the importance of "deterrence and punishment." These concerns,

- 12 - too, are generic: they apply to any defendant in any machine gun

possession case. Unmoored from any individual characteristics of

either the offender or the offense of conviction — and the district

court constructed no such mooring — they cannot serve as building

blocks for an upward variance. See Flores-Machicote, 706 F.3d at

21 ("When a court varies from the [guideline sentencing range],

its reasons for doing so 'should typically be rooted either in the

nature and circumstances of the offense or the characteristics of

the offender.'" (quoting Martin, 520 F.3d at 91)).

We summarize succinctly. The sentencing guidelines are

meant to cover the mine-run of particular crimes, see Spears v.

United States, 555 U.S. 261, 264 (2009) (per curiam); see also

USSG ch. 1, pt. A (1)(4)(b), thus ensuring a modicum of uniformity

in sentencing. Although the sentencing guidelines are advisory,

see United States v. Booker, 543 U.S. 220, 245 (2005), and a

district court has the authority to vary upward from a properly

calculated guideline sentencing range, it may exercise that

authority only if some special characteristic attributable either

to the offender or to the offense of conviction serves to remove

a given case from the mine-run, see Ortiz-Rodríguez, 789 F.3d at

19. Where, as here, the sentencing court has not identified any

such characteristic and the record reveals none, an upwardly

variant sentence cannot endure.

- 13 - To say more would be to paint the lily. Given that the

sentencing guidelines fully accounted for the nature of the firearm

involved in the offense of conviction, the sentencing court abused

its discretion in relying upon that factor to fashion an upwardly

variant sentence. See id. at 18-19; Ofray-Campos, 534 F.3d at 43.

And because the record reveals no circumstance that could justify

an upwardly variant sentence in this case, we vacate the challenged

sentence and remand for resentencing within the guideline

sentencing range.

III. CONCLUSION

We need go no further and — in particular — we need not

resolve the appellant's other challenges to his upwardly variant

sentence. Based on the reasoning elucidated above, we vacate the

appellant's sentence and remand to the district court for

resentencing consistent with this opinion.

Vacated and remanded. Judgment to issue forthwith.

- 14 -