US v. Gallardo-Ortiz
Filing
OPINION issued by Jeffrey R. Howard, Appellate Judge; Bruce M. Selya, Appellate Judge and Rogeriee Thompson, Appellate Judge. Published. [08-2292]
Case: 08-2292
Document: 00116323019
Page: 1
Date Filed: 01/24/2012
Entry ID: 5613030
United States Court of Appeals
For the First Circuit
No. 08-2292
UNITED STATES OF AMERICA,
Appellee,
v.
JORGE LUIS GALLARDO-ORTIZ, a/k/a Legend,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Aida M. Delgado-Colón, U. S. District Judge]
Before
Howard, Selya and Thompson,
Circuit Judges.
Chauncey B. Wood, with whom Wood & Nathanson, LLP was on
brief, for appellant.
Thomas F. Klumper, Assistant United States Attorney, with whom
Nelson Pérez-Sosa, Assistant United States Attorney, Chief,
Appellate Division, was on brief, for appellee.
January 24, 2012
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HOWARD, Circuit Judge.
Date Filed: 01/24/2012
Entry ID: 5613030
By plea agreement, defendant-
appellant Jorge Luis Gallardo-Ortiz pled guilty to two criminal
counts involving his unlawful possession of ammunition and a
firearm, a Glock Model 27, which is .40 caliber handgun capable of
operating as a fully automatic machine gun.
See 18 U.S.C. §§
922(g)(1), 922(o); see also 18 U.S.C. § 921(23) (incorporating
definition of "machinegun" firearm under 26 U.S.C. § 5845(b)). The
parties recommended a sentence of 33 months of incarceration, which
the district court rejected.
Instead, after considering the
particulars of the case in light of the statutory sentencing
factors, 18 U.S.C. § 3553(a), the court imposed a sixty-month
sentence of incarceration -- nineteen months beyond the top of the
guidelines sentencing range (GSR) of 33-41 months -- and three
years of supervised release.
stringent
sentence
is
Gallardo appeals, arguing that the
tainted
substantively unreasonable.1
by
procedural
error
and
is
We disagree and affirm the sentence.
I. Background
In the early morning hours of April 16, 2007, police in
San Juan, Puerto Rico received a call that an armed male was seen
in the vicinity of the Manuel A. Perez housing project.
Two
responding officers promptly arrived at the scene around 1:45 a.m.
1
The government agrees with the appellant's contention that
the "waiver of appeal" clause in his plea agreement does not
preclude this appeal because the sentencing judge did not impose
the recommended sentence.
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and
saw
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Gallardo
holding
Page: 3
a
Date Filed: 01/24/2012
firearm.
Catching
sight
Entry ID: 5613030
of
the
officers, Gallardo fled on foot. The officers quickly captured him
and recovered his Glock .40 caliber pistol.
The loaded gun was equipped with a conversion clip
allowing it to operate as a fully automatic machine gun and accept
extended ammunition magazines. Gallardo also had on his person two
extended magazines,
loaded
with
twenty-three
grand
jury
later
and
twenty-seven
rounds, respectively.
A
federal
returned
a
three-count
indictment charging Gallardo with (1) possession of ammunition and
a firearm by a convicted felon, see 18 U.S.C. § 922(g), (2) knowing
and intentional possession of ammunition and a machine gun, see 18
U.S.C. § 922(o), and (3) knowing possession of ammunition and a
firearm within 1,000 feet of a school zone, see 18 U.S.C. §
922(q)(2)(A).
Gallardo pleaded guilty to the first two charges,
and the government agreed to dismiss the third.
The parties also
agreed to recommend a sentence of 33 months of incarceration, the
bottom of the advisory GSR calculation of 33-41 months. See United
States v. Booker, 543 U.S. 220, 259-60 (2005) (declaring the
sentencing guidelines advisory).
At the sentencing hearing, the district court informed
the parties that it had carefully considered the indictment, the
charges filed within the indictment, and the plea agreement.
It
also had reviewed the pre-sentence investigation report (PSR) in
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detail with the probation officer.
its intent
to
depart
upward
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Entry ID: 5613030
The court informed Gallardo of
from the
recommended
sentence.
Gallardo then presented his allocution, expressing his regret and
his desire to serve minimal incarceration so that he could continue
to financially support his family. After requesting two changes to
the PSR, which the court largely obliged, Gallardo assented to the
contents of the report.
Ultimately, the district court rejected components of
Gallardo's allocution and concluded that a sentence within the GSR2
would not constitute an appropriate sentence.
Instead, after
considering the section 3553(a) factors, the judge imposed a
sentence outside the guideline range in order to reflect both the
seriousness of the offense and its nature and circumstances, to
promote respect for the law, to protect the public from further
crimes by the appellant and to otherwise address the issues of
deterrence and punishment.
As noted earlier, the sentencing judge
imposed a sixty-month sentence of imprisonment, as well as three
years of supervised release.
This timely appeal followed.
II. Discussion
On
appeal,
Gallardo
argues
that
his
sentence
is
constitutionally unreasonable because the district court committed
numerous
procedural
and
substantive
2
errors
when
devising
the
The record reflects that the district court reviewed and
accepted the GSR calculation in the PSR, and no one disputes its
accuracy.
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sentence.
Page: 5
Date Filed: 01/24/2012
Entry ID: 5613030
Before turning to the specifics of his arguments, we
frame the governing law.
Sentencing "is much more an art than a science,"
United
States v. Clogstron, 662 F.3d 588, 593 (1st Cir. 2011), and
"appellate review of sentencing decisions is limited to determining
whether they are reasonable," Gall v. United States, 552 U.S. 38,
46 (2007) (internal quotation marks omitted).
Reasonableness
correlates with the abuse of discretion standard and incorporates
two review components -- discerning whether the challenged sentence
is procedurally sound and substantively reasonable. See id. at 51;
United States v. Thurston, 544 F.3d 22, 24-25 (1st Cir. 2008).
Procedural soundness requires that the district court must not have
committed "a procedural error in arriving at the sentence." United
States v. Rivera-Moreno, 613 F.3d 1, 8 (1st Cir. 2010); see Gall,
522 U.S. at 51 (providing examples of procedural errors, including
a sentencing judge "selecting a sentence based on clearly erroneous
facts").
For substantive reasonableness, the linchpin is "a
plausible sentencing rationale and a defensible result."
United
States v. Pol-Flores, 644 F.3d 1, 4-5 (1st Cir. 2011) (internal
quotation marks omitted).
An established roadmap exists to guide sentencing courts
when discerning a reasonable sentence, which begins with assessing
the
GSR.
See
Gall,
552
U.S.
at
49-50;
United
States
v.
Madera-Ortiz, 637 F.3d 26, 29-30 (1st Cir. 2011); United States v.
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Martin, 520 F.3d 87, 91-92 (1st Cir. 2008).
Entry ID: 5613030
The sentencing court
must also consider a number of relevant factors, see 18 U.S.C. §
3553(a), but "the weighting of those factors is largely within the
court's informed discretion." Clogston, 662 F.3d at 593; see Gall,
552 U.S. at 49-50 (holding that while the GSR is a valuable
starting point, the sentencing judge must make an "individualized
assessment based on the facts presented").
Indeed, "[t]here is no
single reasonable sentence in any particular case but, rather, a
universe of reasonable outcomes," United States v. Walker, No. 101092, 2011 WL 5865652, at *15 (1st Cir. Nov. 23, 2011), and
sentencing decisions are entitled to great deference given the
superior judicial vantage point of sentencing judges, see Gall, 552
U.S. at 51-52.
Our task is to determine whether the district
court's informed decision falls within that universe, not to
supplant its judgment.
See Walker, 2011 WL 5865652, at *15;
Clogston, 662 F.3d at 593.
We note two additional principles before turning to the
details of the sentencing in this case. First, we are mindful that
the sentencing judge may consider all relevant information that has
"sufficient
accuracy";
sentencing.
indicia
the
usual
of
reliability
rules
of
to
evidence
support
do
not
its
probable
pertain
at
See United States v. Cintrón-Echautegui, 604 F.3d 1,
6 (1st Cir. 2010) (internal quotations omitted).
Further, the
sentencing court "has wide discretion to decide whether particular
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evidence is sufficiently reliable to be used at sentencing."
Id.;
see United States v. Marsh, 561 F.3d 81, 87 (1st Cir. 2009)
(determining
that
the
district
court
is
free
to
credit
the
descriptions contained in the PSR when the defendant does not
contest the reliability of the information in the report).
Second, our appellate review includes consideration of
the extent of any variance from the GSR in the context of the
totality of the circumstances.
See Gall, 552 U.S. at 51.
A
dramatic variance, however, cannot unduly influence our review of
substantive reasonableness.
552
U.S.
at
47
(rejecting
Thurston, 552 F.3d at 25; see Gall,
an
appellate
rule
that
requires
"extraordinary" circumstances to justify a sentence outside of the
GSR calculation). Nevertheless, the sentencing court's reasons for
its deviation "should typically be rooted either in the nature and
circumstances
of
the
offense
or
the
characteristics
of
the
offender; must add up to a plausible rationale; and must justify a
variance of the magnitude in question."
Martin, 520 F.3d at 91.
In the end, the standard of reasonableness applies regardless of
whether the challenged sentence falls inside or outside of the GSR.
United States v. Jimenez-Beltre, 440 F.3d 514, 519 (1st Cir. 2006)
(en banc); see also Martin, 520 F.3d at 92 (noting that once the
court has duly calculated the GSR, sentencing "becomes a judgment
call, and a variant sentence may be constructed based on a complex
of factors whose interplay and precise weight cannot even be
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precisely described" (internal quotation marks omitted)).
Against
this backdrop, we review the sentencing decision before us.
The
sentencing
judge
provided
imposing a sentence in excess of the GSR.
several
reasons
for
See Clogston, 662 F.3d
at 592 (noting that the appellate court "must assay the record as
a whole to gauge the sentencing judge's thought process").
she
focused
on
the
seriousness
of
the
offense,
First,
emphasizing
Gallardo's in-hand possession of a loaded high-capacity fully
automatic machine gun while publicly arguing with a family member
in a protected school zone.
Second, the sentencing judge noted
Gallardo's violent character, displayed in part by his criminal
history and post-arrest admissions to law enforcement.
Third, the judge underscored her concern for public
safety and for fostering respect for the law, as well as Gallardo's
need for a strong deterrent.
In this context, the judge noted the
minimal accountability Gallardo had faced in his life and his
continued failure to refrain from illegal activity. The court also
remarked on Gallardo's lack of maturity and consistent exercise of
poor judgment, noting especially Gallardo's use of his limited
financial resources to support his illegal conduct.
Finally, the
court noted Gallardo's misapplication of his intelligence for
manipulative purposes, his conduct in lying to the police after his
arrest,
and
his
efforts
to
minimize
his
culpability
to
the
probation officer. The appellant challenges several aspects of the
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sentencing decision on both procedural and substantive grounds,
which we address in turn.3
A. Claimed Procedural Error
The appellant claims that the sentencing decision is
procedurally flawed because it rests on a "series of errors" and
"speculative factual assertions."
He avers that the significance
of these errors is "magnified here because the district court
imposed a sentence far outside the GSR" and "nearly double the
parties' recommendation."
He specifically targets the manner in
which the district court relied on his employment history, his
criminal record, the circumstances of his offense, and his postarrest interaction with law enforcement.
His plaints, however,
rest on an overly myopic focus and a slanted recasting of portions
of the court's sentencing decision.
Our review of the targeted
court findings and conclusions, in the context of the whole fabric,
reveals no district court error.
See Clogston, 662 F.3d at 592
(emphasizing the importance of appellate court reviewing "the
3
The parties skirmish over the appropriate standard of review.
The government argues that plain error should apply because
Gallardo failed to make timely objections below. The appellant
contends, at least with respect to the alleged procedural flaws,
that any error should result in automatic remand for re-sentencing.
We strongly doubt the viability of the appellant's position, see,
e.g., United States v. Davila-Gonzalez, 595 F.3d 42, 47 (1st Cir.
2010), but we need not rule on its merits because he has not, in
all events, established any district court error, see, e.g., United
States v. Southern Union Co., 630 F.3d 17, 38 (1st Cir. 2010).
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record
Document: 00116323019
as
process").
a
whole
to
Page: 10
gauge
the
Date Filed: 01/24/2012
sentencing
judge's
Entry ID: 5613030
thought
We take up each criticism.
1. Employment History
The
appellant
first
claims
that
the
district
court
erroneously concluded that his employment history illustrates that
he had generated his income by illicit means, and that he was not
able to meet his financial obligations to his family.
Gallardo
focuses on the following statements by the judge: "Throughout your
life, you have had no steady record of employment, no steady
salary, even though questionable how you obtain or provide income,
or even $1,500 to purchase a weapon converted to a machine gun, is
questionable"; and "[Your] way of supporting [your children] and
gaining economic support is highly questionable in as much as there
is no steady record of employment or steady record of income."
According to the appellant, the district court's
conclusions are
directly undermined by the PSR's recitation of his extensive
legitimate work history.
He, however, fails to account for the
context of the court's statements and misconstrues their nature.
The court made the above-quoted statements in the context
of considering the veracity of Gallardo's allocution and when
concluding that he lacked maturity in exercising judgment about how
to properly prioritize his limited income.
The court plainly
doubted Gallardo's self-portrayal as a responsible family man who
had been financially supporting his family, including his ten
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children, his current wife, and his mother.
Entry ID: 5613030
In so doing, the court
juxtaposed his spotty employment history and lack of a consistent
income against his history of spending money on himself rather than
on his family. The judge pointedly noted Gallardo's $1,500 machine
gun purchase and his financial investment in his persistent drug
use.
She
also
noted
that
the
record
seemed
to
contradict
Gallardo's claim that he had been helping provide for his mother's
financial needs. In short, the court was convinced that Gallardo's
skewed allocution and lack of maturity, as a 37-year-old grown man
and father of ten, was pertinent to assessing his character in full
when rendering its sentencing decision.
In sum, the record belies
the appellant's characterization of the court's statements as
displaying a belief that Gallardo earned money illicitly or that he
was unable to support his family financially.
2. Criminal History
The appellant next challenges several aspects of the
manner in which the district court considered his criminal history.
None is availing.
We outline his history, and the court's
corresponding analysis of it, to frame his specific claims of
error.
The appellant's record includes a 1991 conviction for
drug
possession,
and
1991
violence related conduct.
and
1993
convictions
for
domestic
A two-year prison sentence was imposed
for the drug conviction, but the district court noted that he
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actually served seven months of incarceration. Fines were assessed
for both convictions involving domestic violence.
The district
court emphasized the circumstances of the 1993 conviction, in which
Gallardo entered the home of the mother of three of his children -despite the existence of a protective order -- and beat her in the
children's presence.
From 2000 to 2006, Gallardo faced several
charges alleging weapons violations, a drug violation and domestic
violence conduct; all or most were dismissed for speedy trial
violations.
The district court referred to this criminal history
in assessing different aspects of Gallardo's character, and the
appellant challenges two particular conclusions drawn by the court
about the minimal repercussions that he had faced in the past and
about his violent nature.
He first points to the court's statement that he "never
[had]
been
able
or
been
placed
consequences of [his] actions."
in
a
situation
to
confront
He contends that this finding is
erroneous because the court failed to account for his prior twoyear sentence imposed for his 1991 drug conviction. A view through
a
wider
lens,
however,
reveals
that
the
sentencing
judge
specifically considered that conviction and corresponding sentence
when expressing concern that his past encounters with the legal
system resulted in relatively minimal consequences.
The court
underscored: "[e]ven for those charges in which you were convicted
it seems you served a very short period of imprisonment, ranging
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from 7 months before you were paroled"; this was a direct reference
to his punishment for the 1991 drug conviction.
Thus, his prior
punishment did not go unnoticed by the district court.
The
appellant
also
contends
that
the
court's
"no
consequences" statement reflects an improper engagement in "rank
speculation" based on his "bare arrest record" to conclude that he
actually committed the charged criminal conduct underlying the
dismissed charges.
He characterizes the court's statement as
meaning that he "should have had to face consequences" for his
conduct underlying the dismissed charges, and that he "avoided the
consequences
of
these
alleged
actions."
According
to
the
appellant, because the charged conduct was never proven true and
there was no reliable evidence establishing that it occurred, the
dismissed charges were of no probative value in assessing his
"history and characteristics."
The argument lacks merit.
When devising the appellant's sentence, the court took
into account the fact that numerous charges had been lodged against
Gallardo from 2000 to 2006 but he never had to face prosecution for
them due to dismissal on speedy trial grounds.
Indeed, in looking
at the totality of Gallardo's history, the sentencing judge found:
"from prior brushes with the law and encounters with the legal
system, [Gallardo] has not learned to exercise good judgment or
refrain from engaging in illegal conduct."
sentencing
decision,
we
do
not
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In the context of the
understand
the
court's
"no
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consequences"
statement
Page: 14
as
either
Date Filed: 01/24/2012
explicitly
or
Entry ID: 5613030
implicitly
rendering a value judgment on the legitimacy of the dismissed
charges themselves or casting a nefarious shadow on Gallardo
avoiding prosecution.
Rather, the judge was remarking that the
nature of the dismissals negated any legal compulsion for Gallardo
to contend with the legal system and face whether the allegations
actually held weight.
We explain further.
The court viewed the numerous dismissed charges, which
lodged serious allegations and spanned over half a decade, as
couched between his 1990s convictions for drug possession and
domestic violence on one hand, and his self-professed persistent
drug habit and present serious gun crimes on the other hand.
Remarking on this panoply, the court noted several details:
(1)
Gallardo's flagrant disregard of the law displayed by his violation
of a protective order during his 1993 crime; (2) the relatively
minimal consequences he had faced for his early convictions; and
(3) the fact that he continued to choose a path of unlawful conduct
in spite of the fortuity of about a half dozen criminal charges
being dismissed on speedy trial grounds from 2000 to 2006.
There
was no abuse of discretion in the court remarking on the dismissed
charges in this context, when determining the stringency of the
sentence necessary for purposes of deterrence, public safety, and
fostering respect for the law.
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Next, the appellant seems to challenge the district
court's reliance on the dismissed charges when concluding that he
displayed a violent character.
Specifically, after it considered
the nature of his criminal convictions, the court commented that
Gallardo's arrest record also reflected "similar violent conduct in
as much it was domestic violence, two weapons possession, also
dismissed and a drug case also dismissed."
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.
See United States v. Zapete-Garcia, 447
F.3d 57, 60-61 (1st Cir. 2006); see also United States v. Berry,
553 F.3d 273, 281-85 (3d Cir. 2009) (discussing proper reliance on
prior arrests for rendering sentencing decisions).
This premise,
however, does not advance Gallardo's cause because the court's
emphasis on his violent character, as one part of its sentencing
reasoning,
is
supported
by
reliable
evidence.
See
Cintrón-Echautegui, 604 F.3d at 6 (noting the district court's
discretion to rely on reliable evidence for sentencing purposes).
Gallardo's own incriminating statements made after his
arrest for the present conviction are indicative of his current
violent propensity and supplement the violence displayed by his
earlier criminal convictions. Specifically, the appellant does not
dispute the PSR's account of his explanation to the police that he
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took flight from them because he thought that his current wife had
called
them
violence.
and
they
were
going
to
arrest
him
for
domestic
This self-chosen excuse supports the court's finding
that violence remained a part of Gallardo's character. Indeed, the
district court
enforcement
was
that
troubled
he
by
purchased
his
the
further
Glock
admission
pistol
for
to
law
his
own
"protection." Again, the appellant's own words support the court's
conclusion about his violent character, because the weapon he
selected had been converted into a fully automatic machine gun, a
firearm with destructive power disproportionate to owning a gun for
purely self-defense purposes under ordinary circumstances.
Under
the circumstances of this case, we reject the appellant's attempt
to
undermine
the
district
court's
finding
that
his
violent
character properly served as one among several reasons under
section 3553(a) for enhancing his sentence.
Cf. United States v.
Politano, 522 F.3d 69, 75 n.3 (1st Cir. 2008) (noting that in a
case where a sentence variance is due solely to a prior arrest or
outstanding charge, more explanation for the variance may be
required (citing Zapete-García, 447 F.3d at 60)).
3. The Circumstances of the Offense
The appellant next challenges the manner in which the
district court relied on the circumstances of the offense to
enhance his sentence. He first contends that the court erroneously
relied
upon
Guideline
§5K2.17
to
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conclude
that
the
offense
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warranted an upward adjustment from the GSR.
Entry ID: 5613030
See United States v.
Anonymous Defendant, 629 F.3d 68, 73 (1st Cir. 2010) (noting that
a sentencing judge's "material error of law constitutes a per se
abuse of discretion").
This guideline provides in part:
"If the
defendant possessed a semiautomatic firearm capable of accepting a
large capacity magazine in connection with a crime of violence or
controlled
substance
warranted."
offense,
(Emphasis added).
an
upward
departure
may
be
While the government agrees that
§5K2.17 does not apply to this case, it points out that the
district court did not actually rely on that section to render its
sentencing decision.
We agree with the government, and again we
consider the sentencing court's actions in context.
The
district
court
first
reviewed
the
proper
GSR
calculation, then set forth the factors that it considered when
deciding to deviate from the resulting range, including "the
seriousness
appellant
of
the
appears
offense."
in
the
The
court's
remark
review
challenged
of
the
by
gravity
the
of
Gallardo's crime:
there exists grounds that would have warranted
a departure, for example under 5K2.17, use of
a high capacity semi-automatic, it is clear in
[this] case there were two large capacity
magazines with a capacity of 30 rounds and two
were in the possession of this defendant with
23 and 27 rounds respectively.
(Emphasis added.) The court also depicted the crime as serious due
to its occurrence in a "protected location that being a school or
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public housing project and that count [three] would have provided
for double the statutory penalty, which is 20 years . . . ."
While
the court ultimately considered a variety of factors when deciding
to impose an increased sentence, it never revisited section 5K2.17
nor did it otherwise gauge the propriety of the sentence in terms
of Gallardo's use of the firearm "in connection with a crime of
violence or controlled substance offense."
Thus, although it mentioned section 5K2.17, the court
actually relied upon Gallardo's use of a high power loaded firearm
and his possession of an abundance of ammunition within a protected
location to illustrate the seriousness of his crime.
Indeed, the
court emphasized the "very serious" nature of the offense as
follows:
"We are talking here not about a regular semi-automatic
but his pistol was converted to work as a fully automatic weapon
capable of using large magazines, two of which were found in the
defendant[']s possession."
In short, the record shows, at most,
that the court may have mistakenly referenced guideline section
5K2.17 as a guidepost for the seriousness of high-capacity gun
offenses; it did not, however, rely on the actual substance of that
guideline
section
to
justify
an
increase
in
the
appellant's
sentence.
The appellant next challenges the court's depiction of
the offense as a "very serious one" based on its factual rendition
of the crime as "occur[ing] at a time in which he was questioning
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and yelling in a public street at 1:45 a.m., in a quarrel with his
brother-in-law."
According to Gallardo, "there was no evidence
that [he] had been speaking to anyone much less yelling or arguing
at any point," and the government's "description of the offense"
did not include any mention of a quarrel with a family member.
The
appellant, however, does not dispute that the PSR itself documents
that he told the police that he had began arguing with his brotherin-law at or around the time that they spotted him holding the
loaded Glock pistol.
See United States v. Davila-Gonzalez, 595
F.3d 42, 45 (1st Cir. 2010) (noting that when sentencing appeal
follows a
guilty
plea, reviewing
unchallenged portions of the PSR).
court may glean
facts
from
Whether or not he was actually
yelling makes no difference to the valid concern the district court
expressed
about
the
obvious
dangerousness
of
the
volatile
situation.
4. Post-Arrest Interaction with Law Enforcement
Finally, the appellant contends that the district court
procedurally erred by taking into consideration that he initially
lied to law enforcement about where he had obtained the gun,
because he eventually told the truth and received a three-level GSR
reduction for accepting responsibility. We fail to discern how his
decision to accept a plea bargain and take responsibility for his
illegal conduct, while commendable, negates the obvious impropriety
of
spinning
a
tale
for
the
police
-19-
in
an
attempt
to
avoid
Case: 08-2292
Document: 00116323019
prosecution.
Page: 20
Date Filed: 01/24/2012
Entry ID: 5613030
Indeed, the district court also underscored his
attempt to minimize and conceal his responsibility during his
discussions with the probation officer.
We give this argument no
further attention.
B. Claim of Substantive Unreasonableness
In
challenging
his
sentence
as
substantively
unreasonable, Gallardo first argues that the procedural errors
"without more" demonstrate "the ultimate sentence imposed was
substantively unreasonable."
This argument is a nonstarter, in
view of the fact that the appellant has not established any
procedural error.
He goes a step beyond, however, and argues that
"there were other factors relied upon by the court which fell short
of
clear
error,
but
which
nevertheless
contributed
to
the
substantive unreasonableness of the sentence." We are unpersuaded.
The "other factors" that the appellant identifies consist
of plaints that the sentencing judge failed duly to consider (1)
the age of his 1991 conviction and corresponding prison sentence,
(2) the de minimus risk that his criminal conduct in a school zone
actually presented to children given the time of the crime (1:45 in
the morning) and (3) the so-called "parsimony" principle.
The
first two claims amount to little more than disagreeing with the
weight that the sentencing judge afforded to certain aspects of the
sentencing factors.
the
sentencing
This exercise, however, is peculiarly within
court's
discretion,
-20-
and
Gallardo
offers
no
Case: 08-2292
Document: 00116323019
Page: 21
Date Filed: 01/24/2012
Entry ID: 5613030
meritorious reason to interfere with that judgment. See Gall, 552
U.S. at 51-52 (noting that sentencing judge has a judicial vantage
point superior to that of the reviewing appellate court); United
States v. Madera-Ortiz, 637 F.3d 26, 31 (1st Cir. 2011) (holding
that "judgment calls" on the weight to be given various relevant
factors "are for the sentencing court, not for this court"); see
also Davila-Gonzalez, 595 F.3d at 49 (concluding that the district
court's silence about a sentencing angle advocated by a party did
not undercut the sentencing decision where the record "evinc[ed] a
sufficient weighing of the section 3553(a) factors").
As his final tack, the appellant contends that the
sentencing judge failed to abide by the parsimony principle as
illustrated by the disproportion between his only prior term of
incarceration
of
seven
months
challenged sixty-month term.
judicial
temperance
such
for
his
1991
offense
and
the
See 18 U.S.C. § 3553(a) (requiring
that
the
sentence
imposed
must
be
"sufficient, but not greater than necessary, to comply with" the
purposes of sentencing); see United States v. Rodriguez, 527 F.3d
221, 228-29 (1st Cir. 2008) (discussing Supreme Court's decision in
Kimbrough v. United States, 552 U.S. 85 (2007), as reflective of
the parsimony principle). He also emphasizes the time span between
his last conviction in 1993 and his 2007 criminal conduct.
Again,
the challenge falls short of the target.4
4
We need not address the government's preservation attack
because we can resolve the merits of this argument rather quickly.
-21-
Case: 08-2292
Document: 00116323019
The
sentencing
Page: 22
court's
Date Filed: 01/24/2012
reasoning
for
Entry ID: 5613030
imposing
increased sentence duly acknowledges the parsimony principle.
an
The
judge provided a myriad of reasons, in accord with the § 3553(a)
sentencing factors, for imposing the enhanced sentence of sixtymonths' imprisonment on a convicted felon who possessed a machine
gun, who also possessed two extended magazines filled with an
abundance of ammunition, who brandished the high-capacity loaded
weapon in public amidst an argument with a family member, and who
fled from the police out of fear of being incarcerated for domestic
violence. As outlined earlier, the judge carefully considered both
the nature and circumstances of the crime, as well as Gallardo's
personal history and character -- including the minimal length of
his prior incarceration in the early 1990s and other criminal
history.
Further, the judge expressed legitimate concern about
providing adequate deterrence and protecting public safety, finding
that Gallardo had "not learned to exercise good judgment or refrain
from engaging in illegal conduct."
In short, the sentencing judge
was aware of the significant increase in incarceration that she was
imposing on the appellant and rooted that decision in the serious
nature of the particular offense and the characteristics of the
defendant.
Although determining whether and how far a sentencing
judge may exceed a GSR may not always be an easy task, we are
convinced that the judge's explanation in this case exhibits a
-22-
Case: 08-2292
Document: 00116323019
Page: 23
Date Filed: 01/24/2012
Entry ID: 5613030
plausible rationale and that she reached a sensible sentence within
the range of reasonableness.
F.3d 91, 95
See United States v. Scherrer, 444
(1st Cir. 2006) (affirming a sentence in excess of GSR
where judge relied on statutorily-approved purposes for sentencing
and provided reasonable basis for exceeding the guideline maximum);
see also Martin, 520 F.3d at 91 (noting that Gall made clear that
district
courts
sentencing
have
"wide
determinations,
institutionalization
of
an
latitude
thus
in
making
guarding
individualized
the
presumption
impermissible
against
that
outside-the-range sentences are unreasonable").
This ends the
matter.
III. Conclusion
The district court in this case ably and conscientiously
sifted the
myriad
sentence and
used
of
considerations
sound
judgment
that
born of
go
its
into
a
criminal
experience
and
superior vantage point. The appellant has failed to establish that
the district court committed either procedural or substantive error
in exercising its sentencing judgment.
is affirmed.
-23-
Accordingly, his sentence
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