US v. Nieves-Mercado

Filing

OPINION issued by Jeffrey R. Howard, Chief Appellate Judge; Rogeriee Thompson, Appellate Judge and William J. Kayatta , Jr., Appellate Judge. Published. [15-1627]

Case: 15-1627

Document: 00117111824

Page: 1

Date Filed: 01/30/2017

Entry ID: 6065915

United States Court of Appeals
For the First Circuit
No. 15-1627
UNITED STATES OF AMERICA,
Appellee,
v.
JOSHUA J. NIEVES-MERCADO,
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
Howard, Chief Judge,
Thompson and Kayatta, Circuit Judges.

Cathryn A. Neaves on brief for appellant.
Rosa Emilia Rodríguez-Vélez, United States Attorney, Mariana
E. Bauzá-Almonte, Assistant United States Attorney, Chief,
Appellate Division, and Francisco A. Besosa-Martínez, Assistant
United States Attorney, on brief for appellee.

January 30, 2017

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KAYATTA, Circuit Judge.
defendant

Joshua

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Entry ID: 6065915

The district court sentenced

Nieves-Mercado

("Nieves")

to

60

months'

imprisonment, a term that exceeded by 9 months the top of the
guidelines sentencing range and by 14 months the government's
recommendation pursuant to a plea agreement.
arguing

that

unreliable

the

court

evidence,

abused

by

its

varying

Nieves appeals,

discretion

upward

based

by

considering

on

information

already factored into the guidelines sentencing range, and by
ignoring

"the

According

to

significant
Nieves,

mitigating

these

errors

factor"
rendered

procedurally and substantively unreasonable.

of

his

his

youth.
sentence

We disagree and so

affirm.
I.
We draw the following facts from the plea agreement and
change-of-plea
presentence
hearing.

colloquy,

investigation

the

undisputed

report

("PSR"),

portions
and

the

of

the

sentencing

See United States v. Rivera-González, 776 F.3d 45, 47

(1st Cir. 2015).
The criminal conduct at issue took place in the early
morning hours of March 15, 2013.

Nieves and two other men were

traveling westbound on the highway between Río Grande and Carolina
in Puerto Rico.

Their vehicle approached an intersection and

pulled alongside a red Ford Explorer stopped at the light.

Nieves

exited the vehicle and carried "a long pointed tip object" to the

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driver's side of the Explorer.
out.

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Entry ID: 6065915

He first ordered the driver to get

When she did not immediately comply, he opened the driver's

side door, yanked the driver from her seat, and pushed her toward
the highway lane divider.

Nieves drove away in the Explorer, and

the vehicle in which he arrived likewise fled the scene.
Hours later, reports surfaced of three armed individuals
disassembling a red Ford Explorer in Canóvanas.

Police officers

responded to the scene and observed two men removing parts from
the Explorer.
investigation

The officers took both men into custody.
confirmed

that

the

Explorer

was

the

Their
vehicle

carjacked hours earlier.

It also led them to Nieves, whom federal

officers

following

arrested

the

day.

Nieves

waived

his

constitutional rights and admitted to his participation in the
carjacking.
On March 20, 2013, a grand jury returned a one-count
indictment charging Nieves and the two other men with carjacking
and aiding and abetting in violation of 18 U.S.C. § 2119(1).
Nieves pled guilty to that charge, pursuant to a plea agreement
with

the

government,

on

September

23,

2013.

The

agreement

obligates the government to recommend a sentence in "the middle
range of the applicable guideline," with no stipulation as to
Nieves's criminal history category.

It also includes a sentencing

guidelines calculation table that lists Nieves's total offense
level as twenty-two, reflecting the following:

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a base offense

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Entry ID: 6065915

level of twenty, U.S. Sentencing Guidelines Manual § 2B3.1(a);
plus

a

two-level

enhancement

because

the

offense

involved

carjacking, id. § 2B3.1(b)(5); plus a three-level enhancement
because
§

Nieves

2B3.1(b)(2)(E);

brandished
less

three

a

dangerous

levels

because

weapon,
Nieves

id.

accepted

responsibility, id. § 3E1.1. The parties agreed to seek no further
adjustment to, or departure from, the base offense level.
The

timely

produced

PSR

mirrors

the

offense

level

computation in the plea agreement, finds a criminal history score
of zero, and computes Nieves's criminal history category as I.
Additionally, the PSR provides a detailed description of the
offense conduct according to the reports of investigation.

As

relevant to this appeal, the PSR states that FBI agents interviewed
Nieves's codefendants on the date of their arrest.

Both admitted

their role in the carjacking and subsequent disassembling of the
Explorer,

explaining

that

Nieves

approached

one

of

the

codefendants after the carjacking, told him where to find the
Explorer, and suggested that he remove and sell the radiator to
satisfy a debt Nieves owed to that codefendant.
The sentencing hearing took place on April 29, 2015.
The district court asked defense counsel whether he had read and
examined the PSR. Defense counsel responded that he had and lodged
one objection unrelated to the issues on appeal.

Defense counsel

also confirmed that he had explained the PSR to his client and

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that they had discussed it together.

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Entry ID: 6065915

He then addressed the court,

providing context for a juvenile adjudication briefly referenced
in the PSR, and noting Nieves's compliance with the terms of his
probation during a previous period of supervision.

He also

referenced

positive

literature

calling

into

question

the

correlation between incarceration and deterrence, and he reported
statistics indicating a higher percentage of guidelines sentences
in the District of Puerto Rico compared to the national average.
Finally, defense counsel argued that offender characteristics
including age, employment, and education made Nieves's potential
for rehabilitation "tremendous" and his risk of recidivism "low."
The court then heard from Nieves.

In his address to the

court, he stated, "I must apologize to the victims, because what
happened was a momentary thing and I ask them to forgive me."

The

court responded by questioning Nieves's assertion:
Mr. Nieves, I think it is very good and proper for
you to ask the victims for forgiveness.
However you
mentioned that this event and what transpired of you
committing this carjacking was . . . the result of a
spur of the moment thing. However, there is information
to the effect that whatever the situation was between
you and your two codefendants and whether the three of
you were arguing or not, at the time in which the vehicle
is found you had stated that you had a debt, you owed
money to a codefendant of yours and you told him, take
the car, sell the parts and use that to cover for my
debt. So it had a purpose, it served a purpose.
Defense counsel interjected that the information on which the court
relied "did not come from the defendant" and was instead "an

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allegation

from

the

other

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Date Filed: 01/30/2017

codefendant."

He

Entry ID: 6065915

explained

that,

although Nieves accepted responsibility for his participation in
the carjacking, he had a different account of his motivation and
his conduct following the carjacking.

Defense counsel questioned

the credibility of the allegation reported in the PSR, arguing
that it was an "improper factor for the Court to consider" because
the court lacked "any elements on the record before it to determine
if the codefendants [sic] statement is true and he is not trying
to minimize his participation or if our client [sic] version is
true and he is trying to minimize his participation."

The court

made no explicit ruling with respect to the information, instead
indicating that it would hear from the government.
After hearing from the government, which did not comment
on the disputed evidence, the district court imposed its sentence.
It agreed with the total offense level listed in the plea agreement
of twenty-two and, applying a criminal history category of I,
calculated the applicable guidelines sentencing range as 41 to 51
months of imprisonment.

See U.S. Sentencing Guidelines Manual

ch. 5, pt. A (Sentencing Table). Turning to the sentencing factors
enumerated in 18 U.S.C. § 3553(a), the court discussed "the history
and characteristics of the defendant," id. § 3553(a)(1), including
Nieves's age, education, employment history, family situation,
history of drug abuse, and criminal record.

The court also

considered "the nature and circumstances of the offense," id.,

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such as the events immediately preceding the carjacking and the
injury suffered by the victim.
sentence

of

60

months'

It imposed an upwardly variant

imprisonment,

followed

by

a

term

of

supervised release not challenged on appeal.
Defense

counsel

asked

the

court

to

reconsider

the

sentence, noting that it exceeded the government's recommendation
and arguing that the additional prison time did not further the
goals of punishment set forth in § 3553(a)(2).

The court, in

denying reconsideration, emphasized that Nieves's actions evinced
his "lack of maturity" and "disregard for human life and disregard
for others."

The court also stated,

I still have my doubts as to whether this was a way or
mechanism of paying a debt.
I have to base this on
information that is available, that is relevant to the
case, given by a person against his own interest per say
[sic] in terms of explaining how he was there and why he
was there and how he got the vehicle and why this person
got to be related.
The

court

further

explained

that

it

"factored

in"

several

considerations, including "his prior record of delinquency, the
seriousness of this offense[, and] . . . the leading role that he
had in being the one that decided and instructed the other ones."
II.
Nieves advances several arguments on appeal.1

First, he

argues that the district court impermissibly considered unreliable

1

Nieves's plea agreement contains a waiver of appeal. The
government agrees with Nieves that the waiver does not bar this
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evidence in determining his sentence.

Entry ID: 6065915

Next, he contends that the

court justified the upward variance with factors the guidelines
sentencing range already took into account.

Additionally, he

claims that the court overlooked the importance of his youth, which
Nieves declares a "significant mitigating factor."

According to

Nieves,

unreasonable

these

errors

produced

a

substantively

sentence.
A.
"We

review

sentencing

decisions

imposed

under

the

advisory Guidelines, whether outside or inside the applicable
[guidelines sentencing range], for reasonableness."
v. Pantojas-Cruz, 800 F.3d 54, 58 (1st Cir. 2015).

United States
Although we

customarily apply the abuse of discretion standard to assess
reasonableness, "the plain error standard supplants the customary
standard of review" when the defendant neglects to preserve an
objection before the district court.

United States v. Dávila–

González, 595 F.3d 42, 47 (1st Cir. 2010). The government contends
that the plain error standard applies to certain of Nieves's
arguments on appeal, but we sidestep that question because Nieves's
arguments fail under even the more favorable abuse of discretion
standard.

appeal because the court did not sentence Nieves according to the
agreement's recommendations.

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We

review

Page: 9

sentences

guidelines in two phases.

Date Filed: 01/30/2017

imposed

under

Entry ID: 6065915

the

advisory

In the first phase, we "examine whether

the district court committed any procedural missteps."
States v. Rossignol, 780 F.3d 475, 477 (1st Cir. 2015).

United
Such

missteps include "failing to calculate (or improperly calculating)
the

Guidelines

range,

treating

the

Guidelines

as

mandatory,

failing to consider the section 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. Rivera–

Moreno, 613 F.3d 1, 8 (1st Cir. 2010) (quoting Gall v. United
States, 552 U.S. 38, 51 (2007)).

We have described our abuse of

discretion standard in this context as "multifaceted," as we apply
clear

error

review

to

factual

findings,

de

novo

review

to

interpretations and applications of the guidelines, and abuse of
discretion

review

to

judgment

calls.

See

United

States

v.

Serunjogi, 767 F.3d 132, 142 (1st Cir. 2014) (citing United States
v. Leahy, 668 F.3d 18, 21 (1st Cir. 2012)).
In the second phase of our review, we "ask whether the
sentence is substantively reasonable."

Rossignol, 780 F.3d at

477. Our inquiry "focuses on the duration of the sentence in light
of the totality of the circumstances." United States v. Del ValleRodríguez, 761 F.3d 171, 176 (1st Cir. 2014).

It acknowledges

that, although the "sentencing court is under a mandate to consider

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a myriad of relevant factors, . . . the weighting of those factors
is largely within the court's informed discretion."

United States

v. Clogston, 662 F.3d 588, 593 (1st Cir. 2011). Our review demands
only "a plausible sentencing rationale and a defensible result."
United States v. Martin, 520 F.3d 87, 96 (1st Cir. 2008).
B.
Nieves's first argument concerns the PSR's report of a
statement made by one of Nieves's codefendants concerning the
reasons for disassembling the stolen car.

Nieves argues that the

district court improperly relied on this out-of-court statement by
a codefendant to an FBI agent, whose report of the statement then
made it into the PSR.

We agree with Nieves that the reported

statement can be seen as hearsay, and that the district court
relied on it, at least in part.

Generally, though, "there is no

limitation on the information which a court may consider in
sentencing other than that the information bear sufficient indicia
of reliability to support its probable accuracy, and evidence not
ordinarily admissible under the rules of evidence at trial may be
considered."

United States v. Berzon, 941 F.2d 8, 21 (1st Cir.

1991). Accordingly, district courts may rely on hearsay statements
that bear such indicia of reliability.

See United States v.

Ramírez-Negrón, 751 F.3d 42, 52 (1st Cir.) ("Reliable hearsay is,
of course, admissible during sentencing proceedings."), cert.

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denied, 135 S. Ct. 276 (2014); U.S. Sentencing Guidelines Manual
§ 6A1.3 cmt. ("Reliable hearsay evidence may be considered.").
The report of the statement made by his codefendant was
disclosed to Nieves in the PSR.

Nieves does not deny that the

statement was made, nor does he dispute the context in which it
was made. The nature and circumstances of the reported explanation
bolster its reliability.

The codefendant made an inculpatory

statement to law enforcement on the date of his arrest.

This was

not a statement attendant to plea bargaining, a context that
sharpens the codefendant's incentive to shift blame.
was

a

near-contemporaneous

confession

that

Instead, it

acknowledged

the

codefendant's participation not only in the carjacking but also in
the additional criminal activity of disassembling the Explorer to
sell its parts.

Furthermore, the codefendant's statement was

consistent with the actions of the codefendants immediately prior
to their apprehension by law enforcement:

the codefendants had

removed one part from the Explorer, which they had placed in their
vehicle, and were working on removing the radiator when the police
detained them.
In these circumstances, we find no abuse of discretion
or legal error by the district court in relying on this evidence
at sentencing.

See, e.g., United States v. Parra-Gonzalez, 329 F.

App'x 887, 889 (11th Cir. 2009) (per curiam) (citing United States
v. Gordon, 231 F.3d 750, 761 (11th Cir. 2000)) (finding no clear

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error

Document: 00117111824

in

district

statements,

even

reliability

of

Page: 12

court's
where

reliance

court

statements

Date Filed: 01/30/2017

at

did

on

Entry ID: 6065915

codefendants'

not

explicitly

sentencing,

because

hearsay
address
"hearsay

statements by [the] codefendants were supported by sufficient
indicia of reliability and [the defendant] had an opportunity to
rebut those statements"); United States v. Berry, 258 F.3d 971,
976–77 (9th Cir. 2001) (similarly finding no abuse of discretion
in district court's reliance on codefendants' hearsay statements,
even where court made no express findings regarding reliability,
given "external consistency" of statements).2
C.
Nieves next contends that, apart from the codefendant's
statement, the factors relied on by the district court to support
the variance "were reiterations of the factors already used to
calculate
Nieves,

the
the

[guidelines
district

sentencing

court

range]."

"pointed

2

to

According
no

to

particular

Nieves does not argue that the district court failed to
resolve the dispute over this evidence or used an improper
procedure to do so. See Fed. R. Crim. P. 32(i)(3); U.S. Sentencing
Guidelines Manual § 6A1.3(a)–(b). We permit implicit reliability
determinations as to the evidence considered at sentencing where
the basis of the implicit determination is manifest. See United
States v. Van, 87 F.3d 1, 3 (1st Cir. 1996) ("Although explicit
resolution of disputed material facts is preferable, we have found
that the court implicitly resolved the facts when the court's
statements and the sentence imposed showed that the facts were
decided in a particular way."). Here, the district court expressly
found that the statement tended to inculpate the codefendant and
that it explained "how he was there and why he was there and how
he got the vehicle."
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characteristics of either the offense itself or [Nieves] that
justified an upward variance." Not so. The district court, before
imposing this above-guidelines sentence, discussed not only the
existence but also the nature of Nieves's criminal history.

See

Del Valle-Rodríguez, 761 F.3d at 176 ("We have held that an upward
variance may be justified by, say, a finding that the defendant's
criminal history score underrepresents the gravity of his past
conduct, or by a finding that the [guidelines sentencing range]
underestimates the likelihood of recidivism." (citation omitted));
cf. United States v. Santa–Otero, 843 F.3d 547, 550–51 (1st Cir.
2016)

(rejecting

argument

that

district

court

double-counted

factor where offense level accounted for mere possession of weapon
yet district court based variance on circumstances attendant to
that possession).

The district court seemed particularly troubled

that Nieves's criminal history began at a young age and that the
circumstances of the juvenile adjudication bore similarities to
the circumstances of this case insofar as Nieves, when upset or
emotional, resorted to aggression and violence.

Additionally, the

district court discussed the emotional injury suffered by the
victim

of

the

carjacking.

Nieves

does

not

explain

how

the

guidelines sentencing range accounted for that factor.
Nor do we find persuasive Nieves's argument that the
district court abused its discretion by giving short shrift to the
role of his youth in this offense and the juvenile offense.

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According

to

Nieves,

neuroscientific

Page: 14

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although

evidence

that

his

"an

counsel

adolescent

Entry ID: 6065915

pointed
is

prone

to
to

impulsive, rash behavior," the district court "essentially gave
this factor no weight in considering the sentence."

Yet the

district court, before imposing its sentence, specifically noted
Nieves's age at the time of this offense and the juvenile offense.
Later, in response to the motion for reconsideration, the district
court

stated

developed

and

that--even
he

has

assuming
not

"his

matured

frontal

lobe

enough"--Nieves's

has

not

actions

reflected not just a "lack of maturity" but also a "disregard for
human life and disregard for others."

Thus, "[t]he defendant's

real complaint is not that the court overlooked [his youth] but
that it weighed th[at] factor[] less heavily than he would have
liked."

Rivera-González, 776 F.3d at 50.

However, "that type of

balancing is, within wide limits, a matter for the sentencing
court . . . [and t]hose wide limits were not exceeded, or even
closely approached, in this instance."

Id. (citations omitted).

D.
Finding no procedural missteps, we consider Nieves's
final argument that his sentence is substantively unreasonable.
According to Nieves, his sentence lacks a "plausible rationale"
because "[t]he court simply gave no reason specific either to
[Nieves's] history or to the crime itself that justified" the
variance.

We have already rejected this contention in finding

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that the district court gave reasons for its variance beyond those
factored into the guidelines sentencing range calculation--namely,
the particulars of Nieves's criminal history as well as the
emotional harm suffered by his victim.

The district court's

articulation of those reasons was sufficiently clear, and it
reflected

a

"plausible,

albeit

not

inevitable,

view

of

the

circumstances sufficient to distinguish this case from the minerun of cases covered by the [guidelines sentencing range]."
Valle-Rodríguez, 761 F.3d at 177.

Del

We are satisfied that the

district court's upward variance of 9 months on top of a 41-to51-month

range

constitutes

a

"defensible

result"

in

these

circumstances, see Martin, 520 F.3d at 96, and thus we find the
sentence substantively reasonable.
III.
For the foregoing reasons, we affirm Nieves's sentence.

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