US v. Rivera-Gonzalez

Filing

OPINION issued by Jeffrey R. Howard, Appellate Judge; Bruce M. Selya, Appellate Judge and Rogeriee Thompson, Appellate Judge. Published. [13-1620]

Case: 13-1620

Document: 00116788597

Page: 1

Date Filed: 01/20/2015

Entry ID: 5880718

United States Court of Appeals
For the First Circuit
No. 13-1620
UNITED STATES OF AMERICA,
Appellee,
v.
KERMIT RIVERA-GONZÁLEZ,
Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Francisco A. Besosa, U.S. District Judge]

Before
Howard, Selya and Thompson,
Circuit Judges.

Edwin E. Leon-Leon on brief for appellant.
Rosa Emilia Rodríguez-Vélez, United States Attorney, Nelson
Pérez-Sosa, Assistant United States Attorney, Chief, Appellate
Division, and Tiffany V. Monrose, Assistant United States Attorney,
on brief for appellee.

January 20, 2015

Case: 13-1620

Document: 00116788597

Page: 2

Date Filed: 01/20/2015

Entry ID: 5880718

SELYA, Circuit Judge. Defendant-appellant Kermit RiveraGonzález challenges his 84-month sentence for a firearms offense.
After careful consideration, we affirm.
I.
Background
Since this appeal trails in the wake of a guilty plea, we
draw

the

facts

from

the

plea

agreement,

the

change-of-plea

colloquy, the undisputed portions of the presentence investigation
report (PSI Report), and the transcript of the disposition hearing.
See United States v. Almonte-Nuñez, 771 F.3d 84, 86 (1st Cir.
2014); United States v. Del Valle-Rodríguez, 761 F.3d 171, 173 (1st
Cir. 2014).
defendant

Beginning in 2007 and continuing into 2010, the

engaged

in

a

conspiracy

to

distribute

controlled

substances at various drug distribution points in San Juan, Puerto
Rico. In carrying out his role in the conspiracy, he possessed and
used firearms.
After a federal grand jury charged the defendant with
various

drug-trafficking

offenses,

the

government

filed

a

supplemental information containing two additional counts arising
out of the defendant's possession, at the time of his apprehension,
of four kilograms of marijuana (supplemental count 1) and four
firearms (supplemental count 2).

Although the defendant initially

maintained his innocence, he soon entered into a non-binding plea

-2-

Case: 13-1620

Document: 00116788597

Page: 3

Date Filed: 01/20/2015

agreement (the Agreement) with the government.

Entry ID: 5880718

See Fed. R. Crim.

P. 11(c)(1)(B).
Pursuant to the Agreement, the defendant pleaded guilty
to count 1 of the indictment (charging him with conspiring to
possess with intent to distribute various controlled substances
within

1,000

feet

of

a

protected

location,

see

21

U.S.C.

§§ 841(a)(1), 846, 860), supplemental count 1 (charging him with
possessing
§

marijuana

841(a)(1)),

and

with

intent

supplemental

to

count

distribute,
2

(charging

see
him

id.
with

possessing firearms in furtherance of a drug-trafficking offense,
see 18 U.S.C. § 924(c)(1)(A)). The remaining five counts contained
in the indictment were to be dismissed.
The Agreement made clear the parties' expectation that
the guideline sentencing range (GSR) for count 1 would be 108 to
135 months and that the GSR for supplemental count 1 would be 6 to
12 months.

These anticipated GSRs were based on the assumption

that the defendant would be placed in criminal history category
(CHC)

I.

The

parties

agreed

that,

should

this

assumption

materialize, they would jointly recommend a 120-month sentence for
count 1 and a concurrent 6-month sentence for supplemental count 1.
With respect to supplemental count 2, they agreed to recommend the
mandatory minimum 60-month term of immurement, to run consecutively
to the sentences on the underlying drug charges.

-3-

The parties'

Case: 13-1620

Document: 00116788597

Page: 4

Date Filed: 01/20/2015

Entry ID: 5880718

recommendation of a 60-month consecutive term for the gun charge
was not contingent upon the sentencing court's CHC designation.
Some months after accepting the defendant's guilty plea,
the district court received the PSI Report, which grouped the drug
charges.

See USSG §3D1.2.

Using CHC I, the PSI Report set the GSR

at 87 to 108 months for the grouped counts.

The Report made only

a passing reference to the gun charge, noting that the statute of
conviction

required

imprisonment.

a

minimum

60-month

consecutive

term

of

See 18 U.S.C. § 924(c)(1); USSG §2K2.4(b).

At the disposition hearing, the district court, without
objection, adopted the guideline calculations limned in the PSI
Report.

The government acknowledged that grouping had resulted in

a lower GSR for the drug counts but nevertheless pressed for the
imposition of the previously agreed 120-month sentence on count 1
and a 6-month sentence on supplemental count 1. The district court
eschewed the non-binding sentencing recommendations contained in
the Agreement and imposed concurrent within-the-range sentences of
96 months on count 1 and 12 months on supplemental count 1.
The court then took up the gun charge.

It again turned

a deaf ear to the parties' joint recommendation and levied an 84month sentence on supplemental count 2 to run consecutively to the
other sentences.1

This timely appeal ensued.

1

As contemplated in the Agreement, the district court
dismissed the remaining five counts contained in the indictment.
-4-

Case: 13-1620

Document: 00116788597

Page: 5

Date Filed: 01/20/2015

Entry ID: 5880718

II.
Analysis
On appeal, the defendant abjures any challenge to either
the

district

court's

guideline

imposed on the drug counts.

calculations

or

the

sentences

Instead, he focuses with laser-like

intensity on the reasonableness (procedural and substantive) of the
84-month sentence for the gun charge.
We review challenges to the reasonableness of a sentence
in line with a two-step pavane.

See United States v. King, 741

F.3d 305, 307 (1st Cir. 2014); United States v. Martin, 520 F.3d
87, 92 (1st Cir. 2008).
procedural error.
(2007).

We begin by examining allegations of

See Gall v. United States, 552 U.S. 38, 51

If no procedural error is found, we then assess the

substantive reasonableness of the sentence.

See id.

In carrying

out these tasks, our review is for abuse of discretion.

See id.;

United States v. Narváez-Soto, ___ F.3d ___, ___ (1st Cir. 2014)
[No. 13-1963, slip op. at 5].

Within this rubric, we review

conclusions of law de novo and findings of fact for clear error.
See Narváez-Soto, ___ F.3d at ___, [slip op. at 5]; United States
v. Walker, 665 F.3d 212, 232 (1st Cir. 2011).

-5-

Case: 13-1620

Document: 00116788597

Page: 6

Date Filed: 01/20/2015

Entry ID: 5880718

A.
Preliminary Matters
Even though the Agreement contained a waiver-of-appeal
clause, the defendant's appeal is properly before us.

Such a

clause only precludes appeals falling within its scope.

See

Almonte-Nuñez, 771 F.3d at 88; United States v. Murphy-Cordero, 715
F.3d 398, 400 (1st Cir. 2013).

Here, the defendant waived his

right of appeal to the extent that he was subsequently "sentenced
in accordance with the terms and conditions set forth in the
Sentence Recommendation provisions" of the Agreement. The sentence
imposed on the gun charge was not in accordance with the terms and
conditions

of

the

Sentence

Recommendation

provisions,

which

memorialized the parties' joint recommendation of a 60-month term
of immurement.

Because of this digression from what the parties

had proposed, the waiver-of-appeal clause does not bar this appeal.
A few words about a second preliminary matter will help
to put our merits discussion in perspective.

The statute of

conviction provides in pertinent part, with exceptions not relevant
here, that any person who possesses a firearm in furtherance of a
drug-trafficking

crime

"shall,

in

addition

to

the

punishment

provided for such . . . drug trafficking crime . . . be sentenced
to a term of imprisonment of not less than 5 years."
§ 924(c)(1)(A)(i).

18 U.S.C.

This term of imprisonment shall not "run

concurrently with any other term of imprisonment imposed on the
-6-

Case: 13-1620

Document: 00116788597

person,

including

.

drug

.

.

any

term

trafficking

. . . possessed."

Page: 7

of

crime

Date Filed: 01/20/2015

imprisonment
during

which

imposed
the

Entry ID: 5880718

for

the

firearm

was

Id. § 924(c)(1)(D)(ii).

The general rule is that convictions (like this one) that
carry a statutory mandatory minimum term of immurement designed to
run consecutively to any sentence on the underlying crime are to be
sentenced "independent of the guideline sentence on any other
count."

USSG §5G1.2(a), cmt. (n.2(A)).

Consecutive sentences for

violations of 18 U.S.C. § 924(c) are, moreover, to be calculated
without regard to chapters three and four of the sentencing
guidelines.

See USSG §2K2.4(b).

Even so, a mandatory minimum sentence under section
924(c) is not wholly independent of the sentencing guidelines.
Rather, the statutory mandatory minimum sentence is deemed to be
the guideline sentence.2

See id. §2K2.4(b); United States v.

Millán-Isaac, 749 F.3d 57, 67 (1st Cir. 2014). We hold, therefore,
that since a mandatory minimum sentence under section 924(c) is the
recommended guideline sentence, a reviewing court should treat any
sentence above that statutory mandatory minimum as an upward
variance.

See, e.g., United States v. Goodrich, 739 F.3d 1091,

1095, 1099 (8th Cir. 2014); United States v. Gantt, 679 F.3d 1240,

2

The guidelines also make clear that if the defendant's
conviction for a section 924(c) offense pushes him into career
offender status, his GSR would be determined under section
4B1.1(c). See USSG §2K2.4(c). That principle is not implicated
here.
-7-

Case: 13-1620

Document: 00116788597

Page: 8

Date Filed: 01/20/2015

Entry ID: 5880718

1243, 1248 (10th Cir. 2012); United States v. Lucas, 670 F.3d 784,
789, 796-97 (7th Cir. 2012).

We proceed accordingly.

B.
Procedural Reasonableness
The defendant first contends that the district court
failed to conduct an adequate individualized assessment of his
history and characteristics.

Specifically, he contends that the

court did not take into account mitigating factors, such as his
relatively crime-free past, his age (33), and the duration of his
sentence on the underlying drug counts.
This is whistling past the graveyard.
pellucid

that

the

court

below

focused

The record makes

appropriately

defendant's personal history and characteristics.

on

the

With respect to

the defendant's particular complaints, we note that the court
specifically acknowledged not only that the defendant's criminal
record was minimal but also that he was a "good father" and a good
family man. So, too, the court recognized the defendant's age. It
is true that no extensive comment about the defendant's age was
made — but none was required.

Age is normally relevant in

sentencing only if age-based considerations "are present to an
unusual degree," USSG §5H1.1, and distinguish a particular case in
a meaningful way (such as when a defendant is either very young or
very old).

No such special considerations obtain here.
-8-

Case: 13-1620

Document: 00116788597

In

a

nutshell,

Page: 9

the

Date Filed: 01/20/2015

sentencing

court

Entry ID: 5880718

indicated

its

awareness of the defendant's personal history and characteristics.
The defendant's real complaint is not that the court overlooked
those factors but that it weighed those factors less heavily than
he would have liked.

But that type of balancing is, within wide

limits, a matter for the sentencing court.

See United States v.

Carrasco-De-Jesús, 589 F.3d 22, 29 (1st Cir. 2009) (holding that a
criminal defendant is entitled to a weighing of relevant factors,
not to a particular result); United States v. Deppe, 509 F.3d 54,
62 (1st Cir. 2007) (similar). Those wide limits were not exceeded,
or even closely approached, in this instance.
The defendant's claim that the district court disregarded
the sentences imposed on the underlying drug charges is made up out
of whole cloth.

The record offers no reason to doubt that the

court took into account the sentences imposed on the underlying
drug charges.

After all, the sentences on all three counts were

imposed at the same time.

To cinch the matter, the aggregate

period of incarceration portended by the combined sentences — 180
months

—

is

exactly

the

same

as

the

aggregate

period

of

incarceration jointly recommended by the parties in the Agreement.
That smacks of deliberate decisionmaking, not mere happenstance.
Though the defendant's lack of individualization claim is
meritless, his challenge to the procedural reasonableness of the
sentence has another facet: his asseveration that the sentencing

-9-

Case: 13-1620

Document: 00116788597

Page: 10

Date Filed: 01/20/2015

Entry ID: 5880718

court erred by increasing the mandatory minimum sentence in a kneejerk response to the high incidence of crime and illegal firearm
use in Puerto Rico and the local judiciary's perceived penchant for
leniency in such cases.

The defendant maintains that the court

placed too much emphasis on these community-based considerations
and, thus, overshadowed the appropriate sentencing factors limned
in 18 U.S.C. § 3553(a).
We agree with the defendant's premise that a sentencing
court's

appraisal

of

community-based

considerations

does

not

relieve its obligation to ground its sentencing determination in
individual factors related to the offender and the offense.

See

United States v. Flores-Machicote, 706 F.3d 16, 24 (1st Cir. 2013).
A sentencing court may abuse its discretion by focusing "too much
on the community and too little on the individual" in imposing a
sentence.

Id.; see Narváez-Soto, ___ F.3d at ___ [slip op. at 8].

But as we explain below, that is not what happened here.
That the court paid heed to the particulars of the
defendant's case is made manifest by its references to his family
life, age, education, employment record, absence of mental health
issues, drug consumption, and prior brushes with the law.

The

court also remarked that the defendant, who had been found in
possession of four firearms, had no training in their use. Nor did
he have any visible means of purchasing them.

-10-

Case: 13-1620

Document: 00116788597

Page: 11

Date Filed: 01/20/2015

Entry ID: 5880718

Against this tableau, the defendant's asseveration is
unpersuasive. While the sentencing court referred to both the high
incidence of violent crime in Puerto Rico and to the local courts'
tendencies toward leniency in such cases, it did so in connection
with the need for deterrence — and deterrence is, of course, a
legitimate sentencing goal. See 18 U.S.C. § 3553(a)(2)(B); FloresMachicote, 706 F.3d at 23.
The short of it is that the district court sentenced the
defendant

in

light

of

the

totality

of

a

myriad

of

relevant

circumstances. Although community-based considerations were a part
of this mix, there is no compelling indication that the court gave
undue weight to them.

Consequently, we reject the defendant's

assignment of procedural error.
C.
Substantive Reasonableness
This leaves only the defendant's assertion that his
sentence on the gun charge is substantively unreasonable.

The

essence of appellate review for substantive reasonableness is
whether the sentence is the product of "a plausible . . . rationale
and a defensible result."

Martin, 520 F.3d at 96.

The defendant starts by attacking the lower court's
sentencing rationale.

We glean that rationale primarily from the

court's near-contemporaneous oral and written explanations of the
sentence.

See id. at 93.

In evaluating the plausibility of a
-11-

Case: 13-1620

Document: 00116788597

discerned

rationale,

we

Page: 12

are

Date Filed: 01/20/2015

mindful

that

a

Entry ID: 5880718

district

court's

sentencing portfolio is "broad, open-ended, and significantly
discretionary."
At

Id. at 92.

the

disposition

hearing,

the

court

noted

the

prevalence of gun-related crimes in Puerto Rico and the pressing
need to deter that kind of misconduct.

The court also noted that

such gun-related crimes are often committed by persons who, like
the defendant, have obtained firearms illicitly and have had no
proper training in their use.
Furthermore, the defendant was a drug point owner and
enforcer who possessed four firearms in furtherance of those roles.
For many drug dealers, guns are tools of the trade.

See, e.g.,

United States v. Acosta-Colón, 741 F.3d 179, 203 (1st Cir. 2013);
United States v. Green, 887 F.2d 25, 27 (1st Cir. 1989).

The

sentencing court's rationale stressed the need for deterrence in a
community and in a trade where gun-related crimes run rampant.
viewed, the court's sentencing rationale was plausible.

So
See

Flores-Machicote, 706 F.3d at 23; Martin, 520 F.3d at 96.
The defendant next frontally attacks the sentence itself,
insisting that it is unreasonably stiff.

He points out that the

court "exceeded by 24 months" the parties' joint recommendation for
a 60-month sentence on the gun charge, "represent[ing] a 40%
increase" over the recommended sentence.

This drastic upward

variance, he says, flouts the parsimony principle, which requires

-12-

Case: 13-1620

Document: 00116788597

Page: 13

Date Filed: 01/20/2015

Entry ID: 5880718

that a sentence be "sufficient, but not greater than necessary."
18 U.S.C. § 3553(a); see United States v. Rodríguez, 527 F.3d 221,
228 (1st Cir. 2008).
This argument lacks force.

Normally, a sentencing court

is not bound by the parties' mutual embrace of a recommended
sentence.3

See,

e.g.,

Flores-Machicote,

706

F.3d

at

19-20.

Moreover, a mandatory minimum sentence is just that: the lowest
sentence that can lawfully be imposed.

A sentencing court may

lawfully select a higher sentence up to the statutory maximum
(which in this case is life imprisonment).

See, e.g., Narváez-

Soto, ___ F.3d at ___ [slip op. at 4-5, 13].
Here, the crimes of conviction are serious and the
defendant was found in possession of a small arsenal. Seen in this
light, the 24-month upward variance is not unconscionably steep.
Together with the 96-month sentence on the underlying drug charges,
it produced the same aggregate period of incarceration to which the
parties had previously agreed.
In most cases, there is not a single appropriate sentence
but, rather, a universe of reasonable sentences.
F.3d at 234.

See Walker, 665

That is true here — and on this record, we cannot say

3

We say "normally" because, under Federal Rule of Criminal
Procedure 11(c)(1)(C), a plea agreement accepted by the district
court may thereafter bind the court to a particular sentence. See,
e.g., United States v. Rivera-Martínez, 665 F.3d 344, 345 (1st Cir.
2011); United States v. Teeter, 257 F.3d 14, 28 (1st Cir. 2001).
That is not the case here.
-13-

Case: 13-1620

Document: 00116788597

Page: 14

Date Filed: 01/20/2015

Entry ID: 5880718

that the court's upward variance either brought the challenged
sentence outside this universe or resulted in an indefensible
outcome.

We conclude, therefore, that the challenged sentence is

substantively reasonable and "sufficient, but not greater than
necessary" to further the legitimate goals of sentencing.

18

U.S.C. § 3553(a).
III.
Conclusion
We need go no further. For the reasons elucidated above,
the judgment of the district court is

Affirmed.

-14-