US v. Guzman-Fernandez

Filing

OPINION issued by Rogeriee Thompson, Appellate Judge; Kermit V. Lipez, Appellate Judge and David J. Barron, Appellate Judge. Published. [14-1576]

Case: 14-1576

Document: 00117008039

Page: 1

Date Filed: 06/01/2016

Entry ID: 6004794

United States Court of Appeals
For the First Circuit
No. 14-1576
UNITED STATES OF AMERICA,
Appellee,
v.
JAVIER GUZMAN-FERNANDEZ,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. José Antonio Fusté, U.S. District Judge]
Before
Thompson, Lipez, and Barron,
Circuit Judges.
Mary Davis and Tisdale & Davis, P.A. on brief for appellant.
Rosa Emilia Rodríguez-Vélez, United States Attorney, Nelson
Pérez-Sosa, Assistant United States Attorney, Chief, Appellate
Division, and Thomas F. Klumper, Assistant United States Attorney,
on brief for appellee.
June 1, 2016

Case: 14-1576

Document: 00117008039

LIPEZ,

Circuit

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Date Filed: 06/01/2016

Judge.

Javier

E.

Entry ID: 6004794

Guzman-Fernandez

("Guzman") pled guilty to one count of conspiring to commit Hobbs
Act

robberies

in

violation

of

18

U.S.C.

§

1951(a).

After

calculating Guzman's guideline sentencing range ("GSR") to be 97
to 121 months, the district court imposed a 135-month term of
imprisonment. Guzman appeals his sentence, arguing that the upward
variance was both procedurally and substantively unreasonable.
Finding no errors, we affirm.
I.
In June 2010, Guzman, who was a supervisor at Kmart,
provided his co-conspirators with security information about one
of the Kmart stores, including the layout of the store and the
identity of the security guard.

Relying on this information,

Guzman's co-conspirators robbed the store.

The robbery involved

the use of a firearm, physical restraint of the store security
guard, and injury to the guard.
In December 2010, Guzman provided security details about
another Kmart store to his co-conspirators and prepared a hiding
spot in the store for his co-defendant, who then hid in that spot
until

the

store

closed.

When

Guzman

and

other

employees

encountered the robber at the store the next morning,1 Guzman
pretended

to

be

both

a

victim

and

a

negotiator

between

the

It is not clear from the record why the robbery was still
in progress the following morning.
1

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employees and the robber.

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Entry ID: 6004794

The second robbery involved a firearm,

restraint of the store employees, and injury to the store watchman.
The value of all the property taken during the two robberies
exceeded $50,000.
Guzman pled guilty to conspiracy to commit Hobbs Act
robberies.

See 18 U.S.C. § 1951(a).

His plea agreement and

presentence investigation report recommended a GSR of 97 to 121
months, based on a total offense level of 30 and a criminal history
category of I.
enhancements:

The offense level calculation included multiple
(1) a five-level increase applied because a firearm

was brandished, see U.S.S.G. § 2B3.1(b)(2)(C); (2) a two-level
increase applied because victims sustained bodily injury, see id.
§ 2B3.1(b)(3)(A); (3) a two-level increase applied because victims
were physically restrained, see id. § 2B3.1(b)(4)(B); (4) a twolevel increase applied because the loss exceeded $50,000, see id.
§ 2B3.1(b)(7)(C)2; and (5) a two-level increase applied because
Guzman "abused [his] position of public or private trust, . . . in
a

manner

that

significantly

facilitated

concealment of the offense," id. § 3B1.3.
hearing,

Guzman's

counsel

argued

for

a

the

commission

or

At the sentencing
97-month

term

of

imprisonment because "all the worst aspects of this case have been

This section was amended, effective November 1, 2015. Here,
we are relying on the guidelines that were in effect at the time
that the presentence investigation report was prepared and Guzman
was sentenced.
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included in the [GSR] calculation."

Entry ID: 6004794

The government argued for a

120-month sentence.
The district court rejected both proposed sentences and
imposed a 135-month term of imprisonment, a 14-month variance from
the top end of the GSR.

In explaining its decision, the court

considered the sentencing factors as set forth in 18 U.S.C.
§ 3553(a).

The court's observations included the following:





he was involved in two robberies;



Guzman's insider role in the two robberies
-- including providing information "used to
intimidate and threaten employees" and
playing both the "victim's role" and "the
role of a negotiator" -- demonstrated the
"boldness" of the conduct and its "planned"
and "deliberate" nature; and



The

Guzman's
age
and
personal
background
suggested that he had "additional controls
and additional insight as to what are the
responsibilit[ies] of a mature individual";

the two robberies were serious crimes,
involving restraint of the victims and
injury to the store employees, and hence
were different from the typical Hobbs Act
robberies found in the "Federal case law."

district

court

determined

that

the

unique

facts

of

the

robberies and Guzman's personal circumstances "require[d]" the
variance in order "to promote respect for the law, . . . to deter
criminal conduct, and protect the public and hard working people
who [were] making basically minimum wage."
The court concluded, in short,

See id. § 3553(a)(2).

that a 14-month variance was

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warranted

to

"provide

Page: 5

just

Date Filed: 06/01/2016

punishment

with

Entry ID: 6004794

what

happened."

Guzman's counsel "object[ed] to the variance and the Court's
application to the 3553 factors" because "all the worst aspects of
th[e] case ha[d] been included in the [GSR] calculation."
II.
The reasonableness of a

district court's sentencing

determinations has procedural and substantive dimensions.
States

v.

Politano,

procedural

inquiry

522

asks

F.3d

69,

whether

72

the

(1st

Cir.

district

United

2008).

court

The

committed

errors "such as failing to calculate (or improperly calculating)
the

[GSR],

treating

the

Guidelines

as

mandatory,

failing

to

consider the 18 U.S.C. § 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."

United States v. Flores-Machicote,

706 F.3d 16, 20 (1st Cir. 2013) (alterations in original) (quoting
Gall v. United States, 552 U.S. 38, 51 (2007)).

The substantive

inquiry "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. 2014).
Guzman contends that his sentence was procedurally and
substantively unreasonable.3

We review both claims for abuse of

We may consider Guzman's appeal because the district court
did not sentence Guzman according to the parties' sentencing
3

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discretion.

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Date Filed: 06/01/2016

Id. (citing Gall, 552 U.S. at 46).

Entry ID: 6004794

Indeed, while the

government argues that a plain error standard should apply to
Guzman's procedural unreasonableness claim, we find that Guzman's
objection in the proceedings below -- that "all the worst aspects
of this case" have been accounted for in the Guidelines calculation
-- sufficed to place the district court on notice of the procedural
claim at issue.

Cf. United States v. Ríos-Hernández, 645 F.3d

456, 462 (1st Cir. 2011).

Hence, we review both reasonableness

claims under the abuse-of-discretion standard.

See Politano, 522

F.3d at 72.
A.

Procedural Error
Guzman argues that the district court failed to explain

the reasons for the upward variance from the GSR, independent of
the factors that were already accounted for in the offense level
calculation.
Our review indicates, however, that the district court
articulated at least one additional reason, beyond those accounted
for in the total offense level, in considering the § 3553(a)
factors.

The court discussed Guzman's mature age and personal

background, noting that he planned and carried out the dangerous
crimes despite his understanding of the nature and severity of his
conduct.

See United States v. Martin, 520 F.3d 87, 91 (1st Cir.

recommendation, and hence, as the government concedes, the waiver
of appeal provision in the plea agreement is not enforceable.
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2008) (explaining that sentencing decisions are "a unique study in
the human failings that sometimes mitigate, sometimes magnify, the
crime and the punishment to ensue" (quoting Gall, 552 U.S. at 52)).
Where

the

district

court

relied

on

factors

already

accounted for in the total offense level, namely, Guzman's insider
role, the fact of two robberies, injury, and restraint, the court
justified its reliance with an explanation.

We have previously

held that, "[w]hen a court varies from the GSR, its reasons for
doing so 'should typically be rooted either in the nature and
circumstances
offender.'"

of

the

offense

or

the

characteristics

of

the

Flores-Machicote, 706 F.3d at 21 (quoting Martin, 520

F.3d at 91).

When a factor within those § 3553(a) considerations

is already included in the total offense level that determines the
GSR, the court "must articulate specifically the reasons that this
particular defendant's situation is different from the ordinary
situation covered by the guidelines calculation."

United States

v. Zapete-Garcia, 447 F.3d 57, 60 (1st Cir. 2006); see also United
States v. Smith, 445 F.3d 1, 6-7 (1st Cir. 2006).
Here, the district court distinguished Guzman's insider
participation from the typical "abuse[] . . . of . . . private
trust"

reflected

Specifically,
immediate

the

in

the

court

consequence

of

Guidelines.

explained

that,

"facilitat[ing]

U.S.S.G.
in

§

addition

the

3B1.3.
to

commission

the
or

concealment of the offense," id., Guzman's insider role spoke to

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the "boldness" of the conduct and its "planned" and "deliberate"
nature.

Similarly, while the fact that there were two robberies

may have been considered in calculating the total loss amount
(which then enhanced the total offense level applicable to Guzman),
see id. § 2B3.1(b)(7)(C), the court relied on the number of
robberies to emphasize the seriousness or nature of the conduct in
imposing an upward variance -- a consideration different in kind
from the combined harm or losses.

The court also explained how

the particular facts of the robberies reinforced the seriousness
of the injury and restraint, which collectively differentiated
this case from the typical "in and out" robberies to which the
Guidelines apply.4
"[A] sentencing court's obligation to explain a variance
requires the court to offer a plausible and coherent rationale -but it does not require the court to be precise to the point of
pedantry."

Del Valle-Rodríguez, 761 F.3d at 177.

We conclude

In recognizing the fact-specific ways in which the district
court interpreted Guzman's insider position and the injury and
restraint, we note that we have applied a similarly discerning
approach to double-counting arguments in the context of upward
adjustments in the Guidelines calculation. There, we have held
that "[m]ultiple sentencing adjustments may derive from 'the same
nucleus of operative facts while nonetheless responding to
discrete concerns.'" United States v. Fiume, 708 F.3d 59, 61 (1st
Cir. 2013) (quoting United States v. Lilly, 13 F.3d 15, 19 (1st
Cir. 1994)). Indeed, "in the absence of an express prohibition,
this court routinely has permitted a single underlying fact to be
used more than once when that fact bears upon two separate
sentencing considerations." Id.
4

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that

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the

district

court

Page: 9

did

Date Filed: 06/01/2016

not

abuse

its

Entry ID: 6004794

discretion

in

articulating the reasons for an above-GSR sentence.
B. Substantive Error
Guzman also contends that his sentence is substantively
unreasonable because the district court relied on factors already
considered in the Guidelines enhancements to impose a sentence
"well above" the GSR, even though his conduct was not so egregious
as to warrant any variance.

The substantive assessment of a

criminal sentence is characterized by "a frank recognition of the
substantial discretion vested in a sentencing court."
Machicote, 706 F.3d at 20.

Flores-

Where, as here, a court has correctly

calculated the GSR, "sentencing becomes a judgment call, and a
variant sentence may be constructed based on a complex of factors
whose

interplay

described."

and

precise

weight

cannot

even

be

precisely

Martin, 520 F.3d at 92 (internal quotation marks

omitted).
At the outset, the district court did not abuse its
discretion in relying on § 3553(a) factors that overlapped with
factors in the Guidelines considerations, given the wide latitude
afforded to courts in making sentencing determinations.

See

generally Flores-Machicote, 706 F.3d at 20 ("[A] sentencing judge
may draw upon his familiarity with a case, weigh the factors
enumerated

in

[§

3553(a)],

and

custom-tailor

an

appropriate

sentence.") (citing Kimbrough v. United States, 552 U.S. 85, 91

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(2007)).

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Entry ID: 6004794

Additionally, the district court explained that it was

the combination of all the § 3553(a) factors discussed -- some
overlapping, others not -- that required a variant sentence to
provide "just punishment with what happened."
We also add that a 14-month variance and a 135-month
term of imprisonment are not unreasonable in light of the totality
of the circumstances.

See Del Valle-Rodríguez, 761 F.3d at 176.

Consistent with the flexibility accorded to the sentencing court,
our substantive review has operated on a sliding scale, on which
the greater the variance, "the more compelling the sentencing
court's justification must be."

Id. at 176-77; see Smith, 445

F.3d at 4; Zapete-Garcia, 447 F.3d at 61.
The variance in this case is modest.

The rare cases in

which variant sentences were found to be unreasonable involved
more extreme variances from the GSR.

See United States v. Ortiz-

Rodríguez, 789 F.3d 15, 18-20 (1st Cir. 2015) (holding that a
sentence "three times greater than the top of the advisory [GSR]"
is a "large variance" that required, but lacked, significant
justification); Smith, 445 F.3d at 6-7 (holding that a sentence
that is less than half of the bottom end of the GSR is unreasonably
low); Zapete-Garcia, 447 F.3d at 60-61 (finding a sentence that is
eight times the top end of the GSR to be unreasonable).

By

contrast, we have here a 14-month variance over the 121-month high
end of the GSR, which is proportionately smaller than many of the

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variances that we have affirmed as reasonable.
States v. Díaz-Arroyo,

Entry ID: 6004794

See, e.g., United

797 F.3d 125, 127-30 (1st Cir. 2015)

(finding a 27-month variance from the 21-month high end of the GSR
to be reasonable); Del Valle-Rodríguez, 761 F.3d at 177 (holding
that a 15-month variance over the 105-month top end of the GSR is
modest and reasonable); Flores-Machicote, 706 F.3d at 20, 25
(finding a 19-month variance from the 41-month high end of the GSR
to be reasonable); Politano, 522 F.3d at 71-72, 75 (finding a 6month

variance

from

the

18-month

top

end

of

the

GSR

to

be

reasonable). The district court also justified the modest variance
with an adequate rationale, including the personal circumstances
of Guzman, the specific ways in which Guzman used his insider
position, and the overall seriousness of the offense.5
Within "a universe of reasonable sentences," where there
is "not a single appropriate sentence," United States v. Oquendo-

Guzman suggests that the district court's recognition that
departure from the GSR is not appropriate in this case means that
variance from the GSR was also not appropriate.
Departure and
variance, however, are two different concepts. See United States
v. Oquendo-Garcia, 783 F.3d 54, 56 (1st Cir. 2015) (noting that
departure "refers to specific deviations imposed in accordance
with a statute or a specific guidelines provision," whereas a
variance "exist[s] as a result of the advisory nature of the
guidelines").
Considerations
that
render
a
departure
inappropriate, such as the lack of prior notice as observed by the
district court here, do not necessarily render a variance
inappropriate.
See, e.g., Irizarry v. United States, 553 U.S.
708, 716 (2008) (holding that advance notice required in departure
under Rule 32(h) of the Federal Rules of Criminal Procedure is not
required in variance).
5

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Garcia, 783 F.3d 54, 57 (1st Cir. 2015) (quoting United States v.
Rivera-González, 776 F.3d 45, 52 (1st Cir. 2015)), the factors
relied on by the court "add[ed] up to a plausible rationale" for
the modest variance imposed in this case, Martin, 520 F.3d at 91.
Affirmed.

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