US v. Vega-Salgado

Filing

OPINION issued by Jeffrey R. Howard, Appellate Judge; Bruce M. Selya, Appellate Judge and Rogeriee Thompson, Appellate Judge. Published. [13-1484]

Case: 13-1484

Document: 00116751342

Page: 1

Date Filed: 10/14/2014

Entry ID: 5859686

United States Court of Appeals
For the First Circuit
No. 13-1484
UNITED STATES OF AMERICA,
Appellee,
v.
ANTOINE VEGA-SALGADO,
Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Carmen Consuelo Cerezo, U.S. District Judge]

Before
Howard, Selya and Thompson,
Circuit Judges.

Todd A. Bussert and Frost Bussert, LLC on brief for appellant.
Rosa Emilia Rodríguez-Vélez, United States Attorney, Nelson
Pérez-Sosa, Assistant United States Attorney, Chief, Appellate
Division, and Carmen M. Márquez-Marín, Assistant United States
Attorney, on brief for appellee.

October 14, 2014

Case: 13-1484

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Entry ID: 5859686

SELYA, Circuit Judge. After entering into a written plea
agreement with a commitment that the government would recommend a
sentence of no more than 56 months, defendant-appellant Antoine
Vega-Salgado

pleaded

guilty

possession of a firearm.

to

being

a

prohibited

See 18 U.S.C. § 922(g)(1).

person

in

The district

court, without objection, fashioned a guideline sentencing range
(GSR) significantly higher than that anticipated by the parties and
— notwithstanding the government's recommendation of a 56-month
incarcerative term — proceeded to impose a mid-range sentence (103
months).

The appellant challenges both the procedural propriety

and the substantive reasonableness of the sentence. Concluding, as
we do, that the sentence imposed was free from error, we affirm.
We start by rehearsing the circumstances underlying this
appeal.

The appellant, a previously convicted felon, was found in

possession of a small arsenal: a loaded 9mm pistol that had been
modified

to

operate

as

a

fully

automatic

magazines, and 38 rounds of ammunition.

machine

gun,

two

In due course, a federal

grand jury sitting in the District of Puerto Rico returned an
indictment charging the appellant with being a felon in possession
of a firearm.1
After initially maintaining his innocence, the appellant
entered into a non-binding plea agreement with the government (the

1

The indictment contained two other counts, which were
dismissed pursuant to the plea agreement. Those counts need not
concern us.
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Document: 00116751342

Agreement).

Page: 3

Date Filed: 10/14/2014

See Fed. R. Crim. P. 11(c)(1)(B).

Entry ID: 5859686

In the Agreement,

the parties projected the appellant's base offense level at 20.
See USSG §2K2.1(a)(4)(B)(i)(II), (ii)(I).

The government conceded

that the appellant deserved a three-level reduction for acceptance
of responsibility. See id. §3E1.1(b). However, the Agreement made
no effort to determine the appellant's criminal history category
(CHC).

Knowing that the applicable GSR could not be computed

without pinpointing the CHC, the parties agreed to recommend a term
of imprisonment "in the middle range of" whatever GSR proved
appropriate.
The Agreement went on to spell out what the sentencing
ranges might be if the adjusted offense level stipulated by the
parties were combined with various CHCs. It specified that, at the
highest possible CHC (VI), the GSR would be 51-63 months and the
recommended mid-range sentence would total 56 months.
Once the Agreement was executed, the appellant tendered
his guilty plea.

A magistrate judge accepted it and ordered a

Presentence Investigation Report (PSI Report).
In the course of preparing the PSI Report, the probation
officer noted that the appellant had a number of prior convictions
for aggravated felonies.2

The circumstances of these convictions

boosted

base

the

appellant's

offense

2

level

to

26,

see

USSG

The PSI Report described no fewer than five prior felony
convictions, including several controlled substance convictions and
one conviction for a crime of violence.
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§2K2.1(a)(1)(A)(ii), (B), and resulted in an adjusted offense level
of 23.

With this offense level in place, the probation officer

assigned the appellant to CHC VI and set his GSR at 92-115 months.
See id. ch. 5, pt. A (sentencing table).
Neither party objected to any portion of the PSI Report
(including the probation officer's guideline calculations). At the
disposition hearing, the district court followed the probation
officer's recommendation and — again without objection — adopted
the suggested guideline computations in full.

Standing by the

Agreement, the government urged the court to impose a 56-month
sentence (despite the fact that such a sentence would, by virtue of
the

revised

guideline

downward variance).

calculations,

represent

a

substantial

When both attorneys had said their piece and

the appellant had allocuted, the court levied a mid-range sentence
of 103 months.

This timely appeal ensued.

The review process for federal criminal sentences is
bifurcated: "we first determine whether the sentence imposed is
procedurally

reasonable

substantively reasonable."
588, 590 (1st Cir. 2011).

and

then

determine

whether

it

is

United States v. Clogston, 662 F.3d
Consistent with this paradigm, we begin

here with the appellant's several claims of procedural error.

In

doing so, we reaffirm that findings of fact are reviewed for clear
error and questions of law (including questions about the meaning

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and application of the sentencing guidelines) are reviewed de novo.
See United States v. Leahy, 668 F.3d 18, 21 (1st Cir. 2012).
To

begin,

the

appellant

contends

that

he

was

not

adequately informed about the non-binding nature of the Agreement.
Because the appellant raises this contention for the first time on
appeal, our review is for plain error.

See United States v.

Duarte, 246 F.3d 56, 60 (1st Cir. 2001). The plain-error hurdle is
high. See id. (delineating standard). We discern no error in this
respect, plain or otherwise.
The Agreement itself states, in unequivocal terms, that
the appellant "understands and acknowledges that the court is not
a party to this . . . Agreement and thus[] is not bound by this
agreement or the sentencing calculations and/or recommendations
contained" in it.

The appellant vouchsafed that he had "read or

been read this . . . Agreement and carefully reviewed every part of
it with [his] attorney."

He represented that he "ha[d] no doubts

as

the

to

the

contents

of

[A]greement"

and

that

he

"fully"

understood its provisions.
To cinch matters, at the change-of-plea hearing the
magistrate judge specifically queried the appellant about whether
he understood that "any sentence imposed by the Court is entirely
in the discretion of the Sentencing Judge."

In the same vein, the

magistrate judge inquired whether the appellant understood that
"the terms of the Plea Agreement are only a recommendation, they

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are not mandatory." The appellant responded affirmatively to these
queries.
Viewed against this backdrop, the appellant's claim of
error disintegrates.
Along the same lines, the appellant suggests that he was
not properly informed about the effect of the Agreement on his
right to withdraw his guilty plea.

This suggestion, too, is

fatuous.
For one thing, the appellant made no effort to withdraw
his guilty plea, even after it became apparent that the district
court would not accept the 56-month recommendation.

For another

thing, the Agreement stated with conspicuous clarity that as long
as the court sentenced the appellant within the statutory maximum,
he "cannot, for that reason alone, withdraw his guilty plea."
Next, the appellant asseverates that the sentencing court
failed adequately to explain why it rejected the joint sentencing
recommendation.

This asseveration lacks force.

To be sure, a

sentencing court has a duty to explain its choice of a particular
sentence.

See United States v. Fernández-Cabrera, 625 F.3d 48, 53

(1st Cir. 2010); United States v. Turbides-Leonardo, 468 F.3d 34,
40 (1st Cir. 2006).

There is, however, no corollary duty to

explain why it eschewed other suggested sentences.3

3

Cf. Turbides-

There is no question but that the court was aware of the
joint recommendation for a 56-month sentence. The government made
this point clearly at the disposition hearing, and we think it
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Leonardo, 468 F.3d at 40 (explaining that "a sentencing court is
not required to address frontally every argument advanced by the
parties").
Here, the district court provided a cogent explanation of
its reasons for imposing a 103-month sentence. After acknowledging
the

presence

of

potentially

mitigating

factors

such

as

the

defendant's lifelong struggle with drug dependency and minimal
family support, the court summarized its reasoning:
Given the serious nature of the offense, the
type of weapon possessed by the defendant,
which had been modified to convert it to a
fully
automatic
pistol,
his
personal
circumstances and his extensive prior record,
the Court finds that a term of imprisonment at
mid applicable guideline range is sufficient
but not greater than necessary to meet
statutory objectives of punishment and of
deterrence in this case.
No more was exigible, especially since the sentence imposed fell
within a properly calculated GSR.

See Fernández-Cabrera, 625 F.3d

at 54 (explaining that "sentences that fall inside a properly
calculated guideline sentencing range require a lesser degree of
explanation

than

those

that

fall

outside"

(quoting

Turbides-

Leonardo, 468 F.3d at 41)).
Battling on, the appellant asserts that the sentencing
court impermissibly assumed the reasonableness of a within-the-

reasonable to infer that the court considered and rejected the
joint recommendation, even if the court did not say so explicitly.
See United States v. Dávila-González, 595 F.3d 42, 48-49 (1st Cir.
2010).
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range sentence and, for that reason, neglected to consider the
factors

enumerated

in

18

U.S.C.

§

3553(a)

adequately.

The

appellant's premise is correct: the Supreme Court has forbidden any
presumption that the GSR reflects a reasonable sentence.

See

Nelson v. United States, 555 U.S. 350, 352 (2009) (per curiam);
Gall v. United States, 552 U.S. 38, 50 (2007).

But the conclusion

that the appellant seeks to draw is not borne out by the record.
In support of his "presumption" argument, he points only
to the "restricted rationale" offered by the sentencing court.
That restricted rationale, he says, evinces that the court "felt
more

compelled

to

adhere

to

the

Guidelines

thoughtful, individualized assessment."

than

to

make

a

Appellant's Br. at 15.

This is whistling past the graveyard: while the court's explanation
for the sentence was not elaborate, nothing about the explanation
indicates

that

it

either

considered

the

guidelines

to

be

a

straitjacket or that it embraced the GSR without due consideration
of the appellant's circumstances. That the guidelines are advisory
is, by now, a basic tenet of federal criminal sentencing.

We

presume that federal judges know the law, and a reviewing court
should not lightly assume that a lower court is either ignorant of
or has forgotten an abecedarian principle.
Gray, 533 F.3d 942, 943 (8th Cir. 2008).

See United States v.
In this instance, the

transcript of the sentencing hearing, read in its entirety, offers

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no plausible reason to doubt the court's awareness of the advisory
nature of the sentencing guidelines.
The appellant's related claim is that the sentencing
court failed adequately to take into account all the factors
enumerated in 18 U.S.C. § 3553(a).

In particular, the appellant

faults the sentencing court for omitting any mention of training or
rehabilitation.

See 18 U.S.C. § 3553(a)(2)(D).

The appellant is fishing in an empty stream.

His

argument is undermined by the sentencing court's explicit statement
that it "considered the sentencing factors set forth in 18 U.S.C.
section 3553(a)."

Such a statement "is entitled to some weight."

Clogston, 662 F.3d at 590 (internal quotation marks omitted). This
is especially so where, as here, the court proceeds to impose a
within-the-range sentence.

See id.

To say more on this point would be supererogatory. There
is simply no principled basis in the record to doubt the veracity
of the district court's explicit statement. Although consideration
of all relevant section 3553(a) factors is obligatory, parsing
through them mechanically is not.

See id. at 592.

The last leg of our journey brings us up against the
appellant's insistence that his 103-month sentence is substantively
unreasonable. We review for abuse of discretion whether a sentence
passes muster as substantively reasonable.

See Gall, 552 U.S. at

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

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In

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the course of that review, we remain mindful that the substantive
reasonableness of a sentence "focuses on the duration of the
sentence in light of the totality of the circumstances."

United

States v. Del Valle-Rodríguez, 761 F.3d 171, 176 (1st Cir.), cert.
denied, ___ S. Ct. ___ (Oct. 6, 2014) [No. 14-5790, 2014 WL
4079929].
This standard of review is quite deferential. In effect,
it reflects an understanding that, in any given case, "there is not
a single reasonable sentence but, rather, a range of reasonable
sentences."

Martin, 520 F.3d at 92.

Unless a sentence "falls

outside the expansive boundaries of that universe," we will uphold
the sentencing court's choice.

Id.

Reversal for such a reason is

particularly unlikely when, as in this case, the sentence imposed
fits within the compass of a properly calculated GSR.

See Gall,

552 U.S. at 51; Clogston, 662 F.3d at 592-93.
We need not tarry.

The sentence imposed in this case

falls comfortably within the commodious bounds of reasonableness.
This was no garden-variety felon-in-possession case; the type of
weapon involved — a pistol modified to operate as a fully automatic
machine gun — weighed heavily in assaying the gravity of the
appellant's criminal conduct. To make matters worse, the appellant
has an extensive criminal history including serious felonies.
While any one of us, if sitting as a trial judge, might have
fashioned a more lenient sentence, that is not the test.

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See

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Martin, 520 F.3d at 92.

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What counts is that, on this record, it

cannot be said that a 103-month sentence was unreasonable.

Thus,

the district court did not abuse its discretion in imposing such a
sentence.
We need go no further. For the reasons elucidated above,
the sentence is

Affirmed.

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