US v. Carrasco-De-Jesus

Filing 920091211

Opinion

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var WPFootnote1 = ' Of course, we have discretion to overlook waiver by the\
government in a criminal case when circumstances justify us in\
doing so. See United States v. Borrero-Acevedo, 533 F.3d 11, 15\
n.3 (1st Cir. 2008); United States v. Rose, 104 F.3d 1408, 1414\
(1st Cir. 1997); see also United States v. Moran, 393 F.3d 1, 11\
(1st Cir. 2004) (acknowledging this discretion, but declining to\
exercise it). There is nothing in the record of this case that\
commends such a practice to us.\
'

var WPFootnote2 = ' The Court listed several examples of procedural error, such\
as "failing to calculate (or improperly calculating) the Guidelines\
range, treating the Guidelines as mandatory, failing to consider\
the § 3553(a) factors, selecting a sentence based on clearly\
erroneous facts, or failing to adequately explain the chosen\
sentence — including an explanation for any deviation from the\
Guidelines range." Gall, 552 U.S. at 51.\
'

var WPFootnote3 = ' To be sure, the $101.60 check is mentioned once in the\
amended PSI Report — but only as an overt act of the conspiracy. \
It is not mentioned in connection with the offense level\
computation. \
'

var WPFootnote4 = ' In United States v. Caraballo, 200 F.3d 20, 26 n.9 (1st Cir.\
1999), we reached a somewhat different decision, but we did so\
under a different version of the guideline. See USSG §5G1.3(b)\
(1998). That earlier version was modified by the Sentencing\
Commission\'s promulgation in 2003 of Amendment 660. That amendment\
clarified the guideline\'s meaning and made Caraballo something of\
an anachronism. See Lino, 493 F.3d at 45. It is the clarified\
version of the guideline with which we are concerned.\
'

var WPFootnote5 = ' These factors include:\
              (1) the nature and circumstances of the offense and the\
history and characteristics of the defendant; (2) the\
need for the sentence imposed — (A) to reflect the\
seriousness of the offense, to promote respect for the\
law, and to provide just punishment for the offense; (B)\
to afford adequate deterrence to criminal conduct; (C) to\
protect the public from further crimes of the defendant;\
. . . (6) the need to avoid unwarranted sentence\
disparities among defendants with similar records . . .;\
and (7) the need to provide restitution to any victims of\
the offense.\
\
18 U.S.C. § 3553(a).\
'

var WPFootnote6 = ' The appellant alludes to the unpublished decision in United\
States v. Díaz-Fontánez, 317 F. App\'x 9, 10 (1st Cir. 2008), to\
support her argument that a concurrent sentence would have achieved\
the appropriate total punishment. That allusion compares plums\
with pomegranates. In Díaz-Fontánez the government had stipulated\
to the fact that the conduct underlying the prior state conviction\
was the basis for an increase in the offense level referable to the\
federal offense. That is quite different from the situation here.\
'

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