US v. Alvarez-Cuevas

Filing 920070104

Opinion

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Not For Publication in West's Federal Reporter
Citation Limited Pursuant to 1st Cir. Loc. R. 32.3

United States Court of Appeals
For the First Circuit
 

No. 06-1075

UNITED STATES,

Appellee,

v.

HENRY A. ALVAREZ-CUEVAS,

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF PUERTO RICO

[Hon. Daniel R. Domínguez, U.S. District Judge]

Before

Lipez, Circuit Judge,
 Campbell, Senior Circuit Judge,
and Howard, Circuit Judge.

    Robert M. Thomas, Jr., Royston H. Delaney and Thomas &
Associates on brief for appellant.
    Nelson Pérez-Sosa, Assistant U.S. Attorney and Rosa Emilia
Rodríguez-Vélez on brief for appellee.

 

January 4, 2007

 

         Per Curiam. Defendant-appellant Henry Alvarez-Cuevas
pled guilty, without a plea agreement, to one count of hostage
taking, in violation of 18 U.S.C. § 1203(a) (Count I), and one
count of using a firearm in relation to a crime of violence, in
violation of 18 U.S.C. § 924(c)(1) (Count II). He was originally
sentenced to 109 months' imprisonment on Count I and to the
statutory mandatory minimum of seven years on Count II. This court
vacated his original sentence on the ground that the sentencing
court had erred in applying U.S.S.G. § 2A4.1(b)(6) to enhance his
sentence on Count I, and remanded with instructions that in light
of the Court's intervening decision in United States v. Booker, 543
U.S. 220 (2005), "[t]he entire sentence is . . . subject to
reconsideration, not just the § 2A4.1(b)(6) enhancement." United
States v. Alvarez-Cuevas, 415 F.3d 121, 122 (1st Cir. 2005).
Alvarez appeals from the sentence of 78 months' imprisonment
imposed on Count I on remand.
         Alvarez' sole argument on appeal is that the district
court erred in denying his motion for preparation of a new
presentence investigation report (PSR) prior to resentencing. He
maintains that the court on resentencing should have "sought
further information in a revised, comprehensive pre-sentence report
addressing the hitherto prohibited or discouraged factors."
Appellant's Brief, p.8. The only such factors that appellant
specifically mentioned (age, education and lack of guidance as a
youth), however, were addressed in the original PSR. No specific
mitigating facts related to those factors were raised at
resentencing or in appellant's brief.
         At the resentencing hearing, defense counsel asked the
court to consider defendant's "history and characteristics" under
18 U.S.C. § 3553(a)(1). Specifically, defense counsel raised two
mitigating facts: 1) defendant's IQ and 2) defendant's role
relative to other participants. The court expressly took those
facts into account in arriving at a sentence in the middle of the
recalculated guideline range (70 - 87 months). Defense counsel
also asked the court to consider his client's psychological state.
However, that factor was addressed at length in the original PSR.
         Neither at the resentencing hearing nor in his brief has
appellant identified any new information not already considered by
the sentencing judge which a new or revised PSR would have
provided. The information in the record, including the information
presented at the resentencing hearing, enabled the district court
to "meaningfully exercise its sentencing authority under 18 U.S.C.
§ 3553." Fed. R. Crim. P. 32(c)(i)(A)(ii). The court did not abuse
its discretion in denying the motion for preparation of a new PSR.
See United States v. Triestman, 178 F.3d 624, 633 (2d Cir. 1999).
         Appellant's argument that the district court "simply
applied the guidelines as presumptively reasonable" is not
supported by the record. The court expressly stated that it was
relying upon the § 3553 factors urged by appellant, based on facts
presented at resentencing regarding defendant's limited mental
capacity and his responsibility relative to other participants in
the offense. Post-Booker, "a district court should normally begin
with a guideline calculation, and . . . after considering
departures, the district court should decide whether 'other
factors' (beyond the guidelines) warrant[] an ultimate sentence
above or below the guideline range." United States v. Smith, 445
F.3d 1, 4 (1st Cir. 2006). The record indicates that the district
court did just that, and provided a "plausible explanation and a
defensible overall result." United States v. Jiménez-Beltre, 445
F.3d 1, 4 (1st Cir. 2006).
         Appellant's conviction and sentence are affirmed. See 1st
Cir. R. 27(c).