US v. Santini-Santiago

Filing

OPINION issued by Juan R. Torruella, Appellate Judge; Norman H. Stahl, Appellate Judge and William J. Kayatta , Jr., Appellate Judge. Published. [15-1605]

Case: 15-1605

Document: 00117111139

Page: 1

Date Filed: 01/27/2017

Entry ID: 6065535

United States Court of Appeals
For the First Circuit
No. 15-1605
UNITED STATES OF AMERICA,
Appellee,
v.
KELVIN SANTINI-SANTIAGO,
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
Torruella, Stahl, and Kayatta,
Circuit Judges.

Luz M. Ríos-Rosario on brief for appellant.
Rosa Emilia Rodríguez-Vélez, United States Attorney, Nelson
Pérez-Sosa, Assistant United States Attorney, Chief, Appellate
Division, and Julia M. Meconiates, Assistant United States
Attorney, on brief for appellee.

January 27, 2017

Case: 15-1605

Document: 00117111139

KAYATTA,

Page: 2

Circuit

Date Filed: 01/27/2017

Judge.

Kelvin

Entry ID: 6065535

Santini-Santiago

("Santini") pled guilty to being a prohibited person in possession
of a firearm in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2).1
Although the applicable sentencing guidelines range recommended a
term of imprisonment of twelve to eighteen months, the district
court sentenced him to thirty-six months' imprisonment to be
followed by a three-year term of supervised release.
challenges his sentence on three bases.

Santini now

First, he contends that

he did not receive adequate notice that the court was considering
an upward departure from the applicable guidelines range.

Second,

he argues that the district court inappropriately found facts and
relied

on

unproven

accusations

to

increase

his

term

of

imprisonment. Third, he avers that the sentencing judge was biased
against him and should have recused herself. Finding none of these
arguments persuasive, we affirm Santini's sentence.
I.

Discussion

We typically review sentencing decisions for abuse of
discretion.

Gall v. United States, 552 U.S. 38, 51 (2007).

Because Santini failed to raise contemporaneous objections in the
court below, however, "the plain error standard supplants the
customary standard of review."

United States v. Arroyo-Maldonado,

1

The plea agreement included an appellate waiver.
The
parties agree, however, that the waiver does not bar this appeal
because Santini's sentence exceeded the parties' stipulated range.

- 2 -

Case: 15-1605

Document: 00117111139

Page: 3

Date Filed: 01/27/2017

Entry ID: 6065535

791 F.3d 193, 197 (1st Cir. 2015) (quoting United States v.
Fernández-Hernández, 652 F.3d 56, 71 (1st Cir. 2011)).

"Under

this rigorous standard, an appellant must demonstrate '(1) that an
error occurred (2) which was clear or obvious and which not only
(3)

affected

(4)

seriously

the

defendant's

impaired

the

substantial
fairness,

reputation of judicial proceedings.'"

rights,

integrity,

but
or

also
public

United States v. Colón de

Jesús, 831 F.3d 39, 44 (1st Cir. 2016) (quoting United States v.
Duarte, 246 F.3d 56, 60 (1st Cir. 2001)).
Santini challenges only the procedural reasonableness of
his sentence.

We address his arguments in the order in which he

presents them.
A.

Variance or Departure?
Santini

first

invokes

Federal

Rule

of

Criminal

Procedure 32(h), which provides in pertinent part that "[b]efore
[a] court may depart from the applicable sentencing range on a
ground not identified for departure in the presentence report or
in a party's prehearing submission, the court must give the parties
reasonable notice that it is contemplating such a departure."
Santini contends that the sentence he received was the result of
a departure from the applicable guidelines sentencing range based
on the court's view of information contained in the presentence
report probation supplied, and that neither the presentence report
nor the court warned him that such a departure was in the offing.

- 3 -

Case: 15-1605

Document: 00117111139

Page: 4

Date Filed: 01/27/2017

Entry ID: 6065535

Rule 32(h) is a vestige of the time before United States
v. Booker, 543 U.S. 220 (2005), an era when the guidelines were
mandatory and variances were little more than a gleam in the eye
of the Supreme Court.

See Fed. R. Crim. P. 32(h) advisory

committee's note to 2002 amendment (describing the addition of
Rule 32(h)).

Booker eliminated the need for sentencing courts to

rely on departures to justify movements away from the guidelines
sentencing range.
Booker,

a

Booker, 543 U.S. at 259–60.

sentencing

court

can

pick

a

Instead, post-

sentence

outside

the

applicable guidelines sentencing range simply by announcing a
discretionary "variance."
variances.

Rule 32(h), in turn, does not apply to

See Irizarry v. United States, 553 U.S. 708, 714

(2008); United States v. Pantojas-Cruz, 800 F.3d 54, 60 (1st Cir.
2015).
So one might therefore ask:

Is there any situation in

which a movement away from the applicable guidelines sentencing
range can be justified as a departure, but not as a variance?

For

practical

The

purposes,

the

answer

would

seem

to

guidelines authorize a variety of "departures."

be

"no."

Many account for

identified "offense characteristics or offender characteristics."
U.S.S.G. § 5K2.0, cmt. 2(A); id. §§ 5K2.1-24.

Others counsel

moving upward or downward from a given sentencing range based on
a

defendant's

criminal

history.

See,

e.g.,

id.

§

4A1.3.

Section 5K3.1 of the guidelines also authorizes departures for an

- 4 -

Case: 15-1605

Document: 00117111139

"early disposition program."

Page: 5

Date Filed: 01/27/2017

Entry ID: 6065535

In short, departures are justified

by reference to specified characteristics of the offense or the
offender, or to an early disposition program.

Variances, in turn,

can also be justified by "the nature and circumstances of the
offense" and "the history and characteristics of the defendant,"
plus much more, such as "deterrence," inducing "respect for the
law," and effective "correctional treatment." 18 U.S.C. § 3553(a);
see Gall, 552 U.S. at 49–50.
All of this means that we are at a loss to identify any
movement away from the applicable guidelines sentencing range that
can be justified as a departure but not as a variance.

And absent

such an example, or some change in either the sentencing factors
provided under § 3553(a) or the Guidelines' grounds for departure,
Rule 32(h) as it presently stands serves no substantive purpose at
all.

See United States v. Brown, 732 F.3d 781, 786 (7th Cir. 2013)

(opining that "Rule 32(h) has lost all utility").

Rather, it

polices only a sentencing court's choice of labels.
Whether a violation of such a vestigial rule could ever
qualify as plain error we need not decide because, in this case,
the

district

court

ultimately

rested

its

rationale

on

the

nomenclature of a § 3553(a) variance rather than a Rule 32(h)
departure.

Indeed, this case well illustrates that a departure is

just a variance by another name.

The objects of the district

court's unease with a non-departing, non-varying sentence within

- 5 -

Case: 15-1605

Document: 00117111139

Page: 6

Date Filed: 01/27/2017

Entry ID: 6065535

the applicable guidelines sentencing range were Santini's longtime
drug use, his status as a fugitive charged with first degree murder
and weapons violations, and the fact that he was captured carrying
a stolen firearm after attempting to flee.

To describe the effect

it proposed to give to these factors, the court at one point used
language that signaled an intent to make a departure:
in imposing the sentence[,] the Court will
consider going upwards pursuant to the
provisions of guideline section 4A1.3 and
takes into consideration reliable information
that concedes the possibility that this
[defendant's] Criminal History category is
substantially under represented and has
substantially
under
represented
the
seriousness of the offense, the one that he
was previously convicted.2
Just as we have already observed, the very same factors
that prompted these comments also fit well within the scope of
§ 3553(a):

the fact that Santini was fleeing serious criminal

charges, while armed, bore on the "seriousness of the offense," 18
U.S.C. § 3553(a)(2)(A), and the drug use and prior arrest bore on
"the

characteristics

of

the

defendant,"

id.

§

3553(a)(1).

Apparently seeing this overlap, the district court abandoned its
signaled departure route and expressly opted to engage in a
variance, concluding that, "in defining the proper sentence for
this defendant that will be consistent with one reflecting the

2

Section 4A1.3 is entitled "Departures Based on Inadequacy
of Criminal History Category."

- 6 -

Case: 15-1605

Document: 00117111139

Page: 7

Date Filed: 01/27/2017

Entry ID: 6065535

seriousness of the offense charged and consistent as well with the
actions that he had engaged in," the court would "engage in a
variance."

See United States v. Nelson, 793 F.3d 202, 206–07 (1st

Cir. 2015) (finding a variance where "[t]he district court at one
point used the term 'depart' but then expressly said that it was
'varying upward'" and "explained its decision to impose an abovethe-range

sentence

by

referencing

not

only

the

defendant's

criminal record but also several of the enumerated section 3553(a)
factors").

Setting a sentence in this manner is the hallmark of

a variance, even when the sentencing court references U.S.S.G.
§ 4A1.3.

See United States v. Aponte-Vellón, 754 F.3d 89, 93 (1st

Cir. 2014).
For these reasons, the district court did not obviously
violate Rule 32(h) when it decided to impose a sentence above the
guidelines sentencing range, nor did the manner in which it
proceeded affect Santini's substantial rights.3

There was, in

short, no plain error.

3

This is not to say that advance notice is never required
where a sentencing court engages in a variance; indeed, both we
and the Supreme Court have suggested otherwise. See Irizarry, 553
U.S. at 715–16; United States v. Vega-Santiago, 519 F.3d 1, 5 (1st
Cir. 2008) (en banc) ("[W]hen proposing to adopt a variant sentence
relying on some ground or factor that would unfairly surprise
competent and reasonably prepared counsel, a judge must either
provide advance notice or, on request, grant a continuance in order
to accommodate a reasonable desire for more evidence or further
research."). Santini, however, neither moved for a continuance
nor argues on appeal that reasonably competent counsel would have
been unfairly surprised by the district court's variant sentence.
- 7 -

Case: 15-1605

B.

Document: 00117111139

Page: 8

Date Filed: 01/27/2017

Entry ID: 6065535

Proper Grounds for Variance
Santini's next argument is that the factors cited by the

court in moving upward from the guidelines sentencing range were
not factors that a court can rely on in sentencing.

First, he

argues that the district court erred by accounting for unproven
allegations supporting his state arrest on weapons and homicide
charges, essentially penalizing him for criminal conduct for which
he had not yet been convicted at the time of sentencing.

Second,

he contends that the district court improperly based its decision
on his "fail[ure] to turn himself in."

Third, he argues that it

was inappropriate for the district court to consider either whether
he "learn[ed] his lesson" from a previous conviction and sentence
or whether he was carrying a dangerous weapon.
These challenges are unavailing because, among other
things, they materially misconstrue the district court's decisionmaking process.

For one thing, taking note of the pendency of the

criminal case against Santini neither constituted punishment for
a crime not yet proven nor deprived Santini of his constitutionally
guaranteed presumption of innocence.

The district court did not

purport to impose an above-guidelines sentence as a consequence of
the alleged criminal acts underlying Santini's state case. Rather,

Nor, it seems, could he: the facts upon which the district court
based its variant sentence were undisputed and contained within
the presentence report. See Vega-Santiago, 519 F.3d at 5.

- 8 -

Case: 15-1605

Document: 00117111139

Page: 9

Date Filed: 01/27/2017

Entry ID: 6065535

it took account of the fact that he was a fugitive from justice at
the time of his arrest.

Likewise, accounting for Santini's

fugitive status in balancing the sentencing factors was the court's
way of pointing out that when Santini committed the offense to
which he pled guilty, he did so under circumstances that posed
heightened risks:

he was not merely a felon in possession of a

firearm, but was a felon wanted for murder carrying a stolen gun
and both hiding and fleeing from capture.

So, too, the district

court's evaluation of Santini's firearm possession and his failure
to learn from his previous interaction with the criminal justice
system was nothing more than an exercise in factor-balancing
concerning the seriousness of Santini's crime and his likelihood
to recidivate.
The district court evaluated the factors provided under
18

U.S.C.

§

3553(a)

and

determined

sentence was appropriate.

that

an

above-guidelines

Decisions like these are within the

sound discretion of sentencing courts, and we "will not disturb a
well-reasoned

decision

to

give

greater

sentencing factors over others."
F.3d 40, 47 (1st Cir. 2009).

weight

to

particular

United States v. Gibbons, 553

We are especially loath to meddle

under a plain error standard of review, where an appellant must
show a deprivation of his substantial rights. In sum, the district
court's

decision

to

impose

a

sentence

- 9 -

of

thirty-six

months'

Case: 15-1605

Document: 00117111139

Page: 10

Date Filed: 01/27/2017

Entry ID: 6065535

imprisonment followed by a three-year term of supervised release
was not unreasonable.
C.

Judicial Bias
Finally, Santini makes a passing reference to what he

views as actions of the district court that "created an appearance
of bias or impartiality that could reasonably be questioned or
considered 'actual bias' which warrants . . . recusal" under 18
U.S.C. § 455.

Santini makes no citation to the record and offers

nothing in the way of argument to support this contention.

In

light of his failure to develop an argument on this front, the
issue is waived.

See United States v. Zannino, 895 F.2d 1, 17

(1st Cir. 1990).
II.
The
contained
decision."

a

Cir. 2011).

district
clear,

Conclusion

court's

cogent,

"explanation,

and

coherent

though

rationale

brief,
for

its

United States v. Madera-Ortiz, 637 F.3d 26, 31 (1st
We accordingly affirm.

- 10 -