Not for Publication in West's Federal Reporter
United States Court of Appeals For the First Circuit
No. 20-1888
UNITED STATES OF AMERICA,
Appellee,
v.
FÉLIX VEGA-LA TORRES,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF PUERTO RICO
[Hon. Francisco Besosa, U.S. District Judge]
Before
Thompson, Lipez, and Gelpí, Circuit Judges.
Franco L. Pérez-Redondo, Assistant Federal Public Defender, with whom Eric Alexander Vos, Federal Public Defender, and Kevin E. Lerman, Research and Writing Specialist, were on brief, for appellant. Gregory B. Conner, Assistant United States Attorney, with whom W. Stephen Muldrow, United States Attorney, and Mariana E. Bauzá-Almonte, Assistant United States Attorney, Chief, Appellate Division, were on brief, for appellee.
July 14, 2022 THOMPSON, Circuit Judge. Arrested near a drug point
with a Glock pistol altered to fire automatically, Defendant later
pled guilty under a plea agreement to illegally possessing a
machine gun (indictment count 2). The government agreed not to
prosecute him for possessing a gun and ammo as a felon (indictment
count 1) and possessing a gun with an obliterated serial number
(indictment count 3). Consistent with the agreement, the parties
at sentencing jointly recommended that he get a 51-month prison
stint. But not bound by the agreement, the district judge — after
calculating a suggested guidelines range of 57 to 71 months and
working his way through the sentencing factors in 18 U.S.C.
§ 3553(a) — settled on 84 months, among other things.1
From that sentence Defendant appeals, calling the 13-
month above-guidelines term both procedurally and substantively
unreasonable. Writing solely for the parties — who know the facts,
procedural history, and arguments presented — and applying abuse-
of-discretion review, see United States v. Dávila-Bonilla, 968
F.3d 1, 9 (1st Cir. 2020), we affirm, reporting only those details
necessary to explain our reasoning.2
1 Defendant concedes, at least implicitly, that the judge correctly calibrated the applicable sentencing range (we say "at least implicitly" because Defendant does not challenge the judge's calibration on appeal). 2 Defendant alleges that the government's appellate defense of the judge's sentence breached the agreement. It did not. See, e.g., United States v. Jurado-Nazario, 979 F.3d 60, 62-63 (1st
- 2 - I
Relying on United States v. Rivera-Berríos, 968 F.3d 130
(1st Cir. 2020), Defendant principally argues that the judge
procedurally erred because (to quote his brief quoting Rivera-
Berríos, italics added by us though) "an upwardly variant sentence
based on the 'highly dangerous and unusual' nature of machine guns
is unreasonable when no other factor relied on is entitled to extra
weight." That the judge commented on how "machine guns are highly
dangerous" and "largely exist on the black market" (quotes taken
from a section of the transcript where Defendant's judge discussed
community-based concerns) did not relieve him of his duty to base
his "sentencing determination [o]n individual factors related to
the offender and the offense." See id. at 136 (quoting United
States v. Rivera-González, 776 F.3d 45, 50 (1st Cir. 2015)). But
here — unlike in Rivera-Berríos — factors tied either to the
criminal or to the crime differentiate today's case from the
ordinary machine-gun case covered by the guidelines. See United
States v. Flores-Machicote, 706 F.3d 16, 21 (1st Cir. 2013).
A
Focusing on the "universe of things," the judge (to quote
again from the transcript) gave individualized attention to the
circumstances, "identif[ying] factors that do not make this case
Cir. 2020); United States v. Carbajal-Váldez, 874 F.3d 778, 786- 87 (1st Cir. 2017).
- 3 - a mine-run machine gun case." And as we understand his position,
Defendant argues not that the judge failed to identify those
factors but that those factors cannot justify the 13-month upward
variance. We think otherwise, however.
To begin, the judge considered Defendant's criminal
history — a history that includes two convictions in commonwealth
courts for violent offenses.
A portion of the presentence investigation report
("PIR") unchallenged below describes how (emphases ours)
"[D]efendant illegally, maliciously, voluntarily and criminally,
aiding and abetting with [another], used violence and intimidation
against a police officer by resisting arrest and not allowing the
officer to execute his duties by dragging the police officer
through the road[,] causing the officer damages to his back and
legs." That conviction resulted in no criminal-history points,
thus allowing the judge to conclude that Defendant's guidelines
range "underrepresented [his] criminal history," see United States
v. Contreras-Delgado, 913 F.3d 232, 243 (1st Cir. 2019) — which
distinguishes his case from the mine-run, see United States v.
Santiago-González, 825 F.3d 41, 49 (1st Cir. 2016). See generally
United States v. Gonzalez-Flores, 988 F.3d 100, 102 (1st Cir. 2021)
(explaining that "sentencing factors, like public protection and
- 4 - deterrence, point in favor of a longer sentence" when the
defendant's prior crimes show "troubling patterns").
Perhaps anticipating this conclusion, Defendant argues
— without citing any relevant legal authority — that the judge
could not consider that offense because prosecutors pursued an
aiding-and-abetting theory and because the record does not
disclose "who caused an officer to be dragged." But even if we
set his lack-of-citation problem aside, see United States v.
Freitas, 904 F.3d 11, 21 (1st Cir. 2018) (deeming an argument
waived because the appellant "neither cite[d] any precedent nor
explain[ed] the lack of precedent, assuming he found none"), the
government protests that other complications get in Defendant's
way. Mentioning P.R. Laws Ann. tit. 33, § 5067, the government
tells us — without being contradicted by Defendant — that an aider
and abettor is treated as a principal under commonwealth law, just
as under federal law. The government also notes — without drawing
a response from Defendant — that the unchallenged description of
Defendant's criminal conduct in the PIR states (emphasis again
ours) that he, "aiding and abetting with [another], used violence
and intimidation against [the] police officer . . . by dragging
the police officer through the road[,] causing the officer"
injuries. The bottom line is that Defendant's arguments do not
Free access — add to your briefcase to read the full text and ask questions with AI
Not for Publication in West's Federal Reporter
United States Court of Appeals For the First Circuit
No. 20-1888
UNITED STATES OF AMERICA,
Appellee,
v.
FÉLIX VEGA-LA TORRES,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF PUERTO RICO
[Hon. Francisco Besosa, U.S. District Judge]
Before
Thompson, Lipez, and Gelpí, Circuit Judges.
Franco L. Pérez-Redondo, Assistant Federal Public Defender, with whom Eric Alexander Vos, Federal Public Defender, and Kevin E. Lerman, Research and Writing Specialist, were on brief, for appellant. Gregory B. Conner, Assistant United States Attorney, with whom W. Stephen Muldrow, United States Attorney, and Mariana E. Bauzá-Almonte, Assistant United States Attorney, Chief, Appellate Division, were on brief, for appellee.
July 14, 2022 THOMPSON, Circuit Judge. Arrested near a drug point
with a Glock pistol altered to fire automatically, Defendant later
pled guilty under a plea agreement to illegally possessing a
machine gun (indictment count 2). The government agreed not to
prosecute him for possessing a gun and ammo as a felon (indictment
count 1) and possessing a gun with an obliterated serial number
(indictment count 3). Consistent with the agreement, the parties
at sentencing jointly recommended that he get a 51-month prison
stint. But not bound by the agreement, the district judge — after
calculating a suggested guidelines range of 57 to 71 months and
working his way through the sentencing factors in 18 U.S.C.
§ 3553(a) — settled on 84 months, among other things.1
From that sentence Defendant appeals, calling the 13-
month above-guidelines term both procedurally and substantively
unreasonable. Writing solely for the parties — who know the facts,
procedural history, and arguments presented — and applying abuse-
of-discretion review, see United States v. Dávila-Bonilla, 968
F.3d 1, 9 (1st Cir. 2020), we affirm, reporting only those details
necessary to explain our reasoning.2
1 Defendant concedes, at least implicitly, that the judge correctly calibrated the applicable sentencing range (we say "at least implicitly" because Defendant does not challenge the judge's calibration on appeal). 2 Defendant alleges that the government's appellate defense of the judge's sentence breached the agreement. It did not. See, e.g., United States v. Jurado-Nazario, 979 F.3d 60, 62-63 (1st
- 2 - I
Relying on United States v. Rivera-Berríos, 968 F.3d 130
(1st Cir. 2020), Defendant principally argues that the judge
procedurally erred because (to quote his brief quoting Rivera-
Berríos, italics added by us though) "an upwardly variant sentence
based on the 'highly dangerous and unusual' nature of machine guns
is unreasonable when no other factor relied on is entitled to extra
weight." That the judge commented on how "machine guns are highly
dangerous" and "largely exist on the black market" (quotes taken
from a section of the transcript where Defendant's judge discussed
community-based concerns) did not relieve him of his duty to base
his "sentencing determination [o]n individual factors related to
the offender and the offense." See id. at 136 (quoting United
States v. Rivera-González, 776 F.3d 45, 50 (1st Cir. 2015)). But
here — unlike in Rivera-Berríos — factors tied either to the
criminal or to the crime differentiate today's case from the
ordinary machine-gun case covered by the guidelines. See United
States v. Flores-Machicote, 706 F.3d 16, 21 (1st Cir. 2013).
A
Focusing on the "universe of things," the judge (to quote
again from the transcript) gave individualized attention to the
circumstances, "identif[ying] factors that do not make this case
Cir. 2020); United States v. Carbajal-Váldez, 874 F.3d 778, 786- 87 (1st Cir. 2017).
- 3 - a mine-run machine gun case." And as we understand his position,
Defendant argues not that the judge failed to identify those
factors but that those factors cannot justify the 13-month upward
variance. We think otherwise, however.
To begin, the judge considered Defendant's criminal
history — a history that includes two convictions in commonwealth
courts for violent offenses.
A portion of the presentence investigation report
("PIR") unchallenged below describes how (emphases ours)
"[D]efendant illegally, maliciously, voluntarily and criminally,
aiding and abetting with [another], used violence and intimidation
against a police officer by resisting arrest and not allowing the
officer to execute his duties by dragging the police officer
through the road[,] causing the officer damages to his back and
legs." That conviction resulted in no criminal-history points,
thus allowing the judge to conclude that Defendant's guidelines
range "underrepresented [his] criminal history," see United States
v. Contreras-Delgado, 913 F.3d 232, 243 (1st Cir. 2019) — which
distinguishes his case from the mine-run, see United States v.
Santiago-González, 825 F.3d 41, 49 (1st Cir. 2016). See generally
United States v. Gonzalez-Flores, 988 F.3d 100, 102 (1st Cir. 2021)
(explaining that "sentencing factors, like public protection and
- 4 - deterrence, point in favor of a longer sentence" when the
defendant's prior crimes show "troubling patterns").
Perhaps anticipating this conclusion, Defendant argues
— without citing any relevant legal authority — that the judge
could not consider that offense because prosecutors pursued an
aiding-and-abetting theory and because the record does not
disclose "who caused an officer to be dragged." But even if we
set his lack-of-citation problem aside, see United States v.
Freitas, 904 F.3d 11, 21 (1st Cir. 2018) (deeming an argument
waived because the appellant "neither cite[d] any precedent nor
explain[ed] the lack of precedent, assuming he found none"), the
government protests that other complications get in Defendant's
way. Mentioning P.R. Laws Ann. tit. 33, § 5067, the government
tells us — without being contradicted by Defendant — that an aider
and abettor is treated as a principal under commonwealth law, just
as under federal law. The government also notes — without drawing
a response from Defendant — that the unchallenged description of
Defendant's criminal conduct in the PIR states (emphasis again
ours) that he, "aiding and abetting with [another], used violence
and intimidation against [the] police officer . . . by dragging
the police officer through the road[,] causing the officer"
injuries. The bottom line is that Defendant's arguments do not
move the needle in his favor.
- 5 - Above and beyond all this, another part of the PIR
uncontested below describes how Defendant "illegally, maliciously,
knowing and with criminal intent used physical force against his
consensual partner by hitting her face with a pot lid, a car seat,
a fan guard, his fists and legs[,] causing bleeding in her mouth
and nose and bruises." Sentenced to probation, Defendant only got
criminal-history points for that offense because a commonwealth
court revoked his probation and sent him to prison. The judge
mentioned the domestic-violence conviction in discussing
Defendant's criminal history, which the government claims was fair
game — an argument that Defendant does not directly respond to.
And as the government also correctly notes, we can infer that this
conviction contributed to the judge's concern with Defendant's
multiple convictions for physical violence. See United States v.
Jiménez-Beltre, 440 F.3d 514, 519 (1st Cir. 2006) (en banc),
abrogated on other grounds by Rita v. United States, 551 U.S. 338
(2007) (emphasizing that a judge's reasoning for the sentence can
"often be inferred by comparing what was argued by the parties or
contained in the [PIR] with what the judge did"). But to the
extent Defendant believes that the judge erred on this front, our
caselaw says that a judge can consider "prior criminal history in
both the [criminal-history category] determination and the section
3553(a) variance analysis." See United States v. Hernández, 906
F.3d 213, 215 (1st Cir. 2018); see also United States v. Díaz-
- 6 - Lugo, 963 F.3d 145, 156 (1st Cir. 2020) (recognizing that in
picking a variant sentence, a judge can rely on a factor "that was
considered in constructing the [guidelines-sentencing range] but
not in a way that sufficiently accounts for the idiosyncrasies of
[the] particular case"); United States v. Maisonet-González, 785
F.3d 757, 764 (1st Cir. 2015) (holding that an "overlap between
the [g]uidelines and other sentencing factors enumerated in
[section] 3553(a) did not constitute double counting and is neither
surprising nor impermissible").
More, the judge also considered the two counts dismissed
under the plea agreement. As part of the agreement, Defendant
stipulated to unlawfully possessing the gun as a convicted felon
(count 1) and to possessing a gun with an obliterated serial number
(count 3). And contrary to what Defendant contends, the judge
could "consider[] the seriousness of the other charges in the
indictment, which the parties had agreed to dismiss pursuant to
the plea agreement." See United States v. Díaz-Rivera, 957 F.3d
20, 28 (1st Cir. 2020).
More still, the PIR contained the uncontested fact that
Defendant (by his own admission) test-shot the machine gun. The
government writes that this fact suggests a willingness on
- 7 - Defendant's part to use the gun if push came to shove. And
Defendant's reply brief does not respond to that suggestion.
B
To summarize, because the judge grounded his decision in
individual factors related to the offender and the offense,
Defendant's bid to show reversible procedural error fails — i.e.,
"[w]hile the judge may have lingered longer than necessary on
community characteristics," including when discussing his beliefs
about gun accuracy, the notion that he did not individually tailor
the sentence "is unfounded." See Flores-Machicote, 706 F.3d at
24.3
II
On the substantive-reasonableness front, Defendant
argues that "[n]o justification supported the [judge's] thirteen-
months-above-guideline-range sentence" because his "commercially
available (but altered) handgun with ammunition falls within the
guideline-range heartland." This basically mirrors his failed
argument under the procedural-reasonableness label. And he does
no better using the substantive-reasonableness tag. See United
States v. Tosi, 897 F.3d 12, 15 (1st Cir. 2018) (rejecting
substantive-reasonableness arguments that "essentially rehash
Because the grounds highlighted above suffice to justify 3
the judge's decision, we need not consider the government's other arguments.
- 8 - [defendant's] already-rejected procedural-reasonableness
claims").
Citing 18 U.S.C. § 3553(a)(6), Defendant also claims
that his prison term creates "unwarranted sentence disparities"
because the judge's "sentence parted ways with numerous machine
gun cases in the District of Puerto Rico" that produced
"sentence[s] firmly within or below the guidelines." Section
3553(a)(6) "primarily refers to national disparities among
similarly situated defendants." United States v. Munyenyezi, 781
F.3d 532, 545 (1st Cir. 2015) (first emphasis omitted).
Concentrating on the similarly-situated requirement, we note a
couple things. "A credible claim of sentencing disparity requires
that the proponent" give us "enough relevant information" to show
his comparisons involve like-situated individuals. See United
States v. Rodríguez-Adorno, 852 F.3d 168, 177 (1st Cir. 2017).
And as the government points out — without any contradiction —
Defendant offers nothing showing his comparators had guideline
ranges or criminal histories similar to his (among other
shortcomings), which is enough to reject this claim. See, e.g.,
United States v. Bedini, 861 F.3d 10, 22 (1st Cir. 2017);
Rodríguez-Adorno, 852 F.3d at 177.
III
All that is left to say is: Affirmed.
- 9 -