US v. Millan-Roman

Filing

OPINION issued by Juan R. Torruella, Appellate Judge; Rogeriee Thompson, Appellate Judge and David J. Barron, Appellate Judge. Published. [15-2248]

Case: 15-2248

Document: 00117142357

Page: 1

Date Filed: 04/14/2017

Entry ID: 6084110

United States Court of Appeals
For the First Circuit
No. 15-2248
UNITED STATES OF AMERICA,
Appellee,
v.
JOSÉ A. MILLÁN-ROMÁN,
Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. José Antonio Fusté, U.S. District Judge]

Before
Torruella, Thompson, and Barron,
Circuit Judges.

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

April 14, 2017

Case: 15-2248

Document: 00117142357

Page: 2

Date Filed: 04/14/2017

Entry ID: 6084110

BARRON, Circuit Judge. This appeal requires us to review
José Millán-Román's challenge to the 120-month prison sentence
that

he

received

after

he

pled

guilty,

pursuant

to

a

plea

agreement, to two offenses: possession of a firearm in furtherance
of a drug trafficking crime, in violation of 18 U.S.C. § 924(c),
and possession of controlled substances with intent to distribute,
in violation of 18 U.S.C. § 841(b)(1)(C).

We affirm.

I.
Millán entered his plea in June 2015. The plea agreement
set forth detailed recommendations regarding the sentence.
As to the firearms count, the plea agreement stated that
the

applicable

Commission
statutory

sentence

Guidelines
minimum

under

the

60

months

was

sentence

for

that

United
of

States

Sentencing

imprisonment

offense.

See

--

the

U.S.S.G.

§2K2.4(b) (noting that the guideline sentence for a conviction
under 18 U.S.C. § 924(c) is the minimum term of imprisonment
required by statute).

Nonetheless, the plea agreement recommended

an upward-variant sentence of 84 months of imprisonment.

The plea

agreement did not give a reason for this upward-variant sentence,
but Millán's defense counsel acknowledged at sentencing that the
parties had stipulated to a sentence higher than the statutory
minimum "knowing that [the sentencing judge] was not going to give
him [the statutory minimum]."

- 2 -

Case: 15-2248

Document: 00117142357

Regarding

the

Page: 3

Date Filed: 04/14/2017

controlled-substances

count,

Entry ID: 6084110

the

plea

agreement stated that, under the Guidelines, Millán had a base
offense level of twelve, but that he was entitled to a two-level
reduction for acceptance of responsibility under U.S.S.G. §3E1.1.
The plea agreement thus calculated Millán's total offense level to
be ten.
The plea agreement did not set forth a criminal history
category ("CHC") for Millán.

But the plea agreement stated that

the recommended sentencing range under the Guidelines would be 612 months of imprisonment if Millán had a CHC of I and 8-14 months
of imprisonment if Millán had a CHC of II.
The plea agreement then recommended a sentence of six
months of imprisonment for the controlled-substance offense.

The

plea agreement also recommended that this sentence be served
consecutively to the 84-month prison sentence for the firearms
offense.

Thus, the plea agreement recommended a total sentence of

90 months' imprisonment.
On September 22, 2015, the District Court imposed a
sentence of 114 months' imprisonment for the firearm offense, and
six months' imprisonment for the controlled-substance offense, to
be served consecutively, for a total prison sentence of 120 months.
The District Court also imposed five years' supervised release.
On

appeal,

Millán

contends

that

the

District

Court

committed a number of errors -- some of which he characterizes as

- 3 -

Case: 15-2248

Document: 00117142357

Page: 4

Date Filed: 04/14/2017

Entry ID: 6084110

procedural and others as substantive -- in calculating his sentence
for the firearms count.
II.
We

begin

with

the

characterizes as procedural.

claims

of

error

that

Millán

Because Millán did not object to the

District Court's sentencing decision below, our review is for plain
error.

United States v. Arroyo-Maldonado, 791 F.3d 193, 197 (1st

Cir. 2015).

Thus, Millán must show (1) that an error occurred (2)

which was clear or obvious and which not only (3) affected the
defendant's substantial rights, but also (4) seriously impaired
the

fairness,

proceedings.

integrity,

or

public

reputation

of

judicial

Id.
A.

Millán argues, first, that the District Court committed
procedural

error

by

failing

properly

to

factors as required by 18 U.S.C. § 3553(a).

consider

mitigating

Specifically, Millán

contends that the District Court failed to consider that Millán
was a first-time offender, that he had no prior adult criminal
history, that he was close with his family, that he was employed,
and that he helped to support his three-year-old son.
The record makes clear, however, that the District Court
was aware of these mitigating factors, as Millán's defense counsel
elucidated them at the sentencing hearing.

The District Court

also expressly noted that Millán "has no criminal record, no

- 4 -

Case: 15-2248

Document: 00117142357

Page: 5

Date Filed: 04/14/2017

Entry ID: 6084110

arrests, nothing," and added: "He's a young guy. The amount of
drugs he had was small, if you think about it."
The

District

Court

did

not

expressly

mention

the

particular mitigating factors Millán now identifies on appeal as
ones that were overlooked.

But, while district courts must

consider factors listed in § 3553(a) at sentencing, United States
v. Lozada-Aponte, 689 F.3d 791, 793 (1st Cir. 2012), "we do not
require an express weighing of mitigating and aggravating factors
or that each factor be individually mentioned."

Id.

Moreover, we

have held that the failure of a district court to "explicitly
mention them during the sentencing hearing suggests they were
unconvincing, not ignored."

Id.

Thus, Millán does not meet his

substantial burden of showing that the District Court plainly
erred.
B.
Separately,

Millán

argues

that

the

District

Court

committed procedural error by justifying the sentence in part by
reference to the "Tómbola massacre" -- a 2009 shooting in Sabana
Seca, the community in which Millán resided and in which a number
of people were killed -- without following the procedure for
"bring[ing] [a defendant's] uncharged conduct into play."
States v. Sklar, 920 F.2d 107, 110 (1st Cir. 1990).

United

But the record

makes clear that the District Court was not suggesting that Millán

- 5 -

Case: 15-2248

Document: 00117142357

Page: 6

Date Filed: 04/14/2017

Entry ID: 6084110

was in any way responsible for the massacre, and so Millán's
argument rests on a mistaken premise.
Moreover, we have made clear that, in considering the
need for deterrence, see 18 U.S.C. § 3553(a)(2)(B), district courts
may take into account not only the need for individual deterrence,
but also the need for community deterrence within the defendant's
particular community.

See United States v. Flores-Machicote, 706

F.3d 16, 22-23 (1st Cir. 2013) (holding that "a sentencing judge
may

consider

community-based

and

geographic

factors"

and

explaining that "the incidence of particular crimes in the relevant
community appropriately informs and contextualizes the relevant
need for deterrence"); Lozada–Aponte, 689 F.3d at 793 (noting that
sentencing judge's discussion of "incidence of crime in Puerto
Rico" was a "permissible [sentencing] consideration"); United
States v. Politano, 522 F.3d 69, 74 (1st Cir. 2008) (allowing
sentencing court "to take into account all of the circumstances
under which [the defendant] committed the offense, including the
particular community in which the offense arose").

Thus, while we

question the weight that may be given to a now seven-year-old
incident, the District Court did not plainly err in referencing
this incident as part of its more general explanation of the need
for community deterrence, given what the District Court perceived
to be the scourge of drugs and guns in Puerto Rico.

- 6 -

Case: 15-2248

Document: 00117142357

Page: 7

Date Filed: 04/14/2017

Entry ID: 6084110

C.
Millán next contends that the District Court committed
procedural error in failing to give Millán an opportunity to
address the Court about the Tómbola massacre.
v. Berzon, 941 F.2d 8, 18-19 (1st Cir. 1991).

See United States
We disagree.

The District Court first raised the Tómbola massacre
when Millán entered his guilty plea, prior to the sentencing
hearing.

The District Court asked, "You know for example what

happened in Sabana Seca some years ago? The La Tómbola? . . . You
know what happened there, how many people were killed?"

Millán

responded, "Yes," and the District Court stated that the massacre
was "the consequence of firearms" like those Millán pled guilty to
possessing.

Millán neither objected nor sought to address the

matter with the Court.
Then, at the sentencing hearing itself, the District
Court gave Millán's defense counsel another opportunity to address
the Court regarding the massacre:
District Court: Isn't it a fact, sir, that [Sabana
Seca] is an area of high criminality where horrible
things have occurred in the past? Including the
famous case I tried a couple of years ago involving
the murder of 13 people, the Alexis Candelario
case?
Defense counsel: We are aware.
District Court: Isn't that a fact?
Defense counsel: It is.

- 7 -

Case: 15-2248

Document: 00117142357

Page: 8

Date Filed: 04/14/2017

Entry ID: 6084110

Given this record, there is no basis for concluding that
Millán

was

not

given

an

opportunity

to

address

the

Tómbola

massacre.
III.
Finally, Millán brings a claim that he characterizes as
substantive. He contends that his sentence is unreasonable because
the District Court placed too much weight on the Tómbola massacre,
and did so at the expense of considering the particular facts of
Millán's conviction.

Though Millán characterizes this claim as a

claim of substantive error, the case he relies on in making this
claim treats this type of error as procedural.

See United States

v. Santiago-Rivera, 594 F.3d 82, 83 (1st Cir. 2010).
we.

So, too, do

See also Flores-Machicote, 706 F.3d at 22-24 (finding no

procedural error where District Court placed great weight on
violence in the community but also paid sufficient heed to the
facts particular to the defendant's case).

Thus, we again apply

the standard of review that we use for claims of procedural error
that were not raised below -- namely, plain error.

See Arroyo-

Maldonado, 791 F.3d at 197.
While a court may consider the incidence of crimes in
the defendant's geographic community in order to properly weigh
the need for community deterrence, "[a] sentencing judge's resort
to community-based characteristics does not relieve him or her of
the

obligation

to

ground

sentencing

- 8 -

determinations

in

case-

Case: 15-2248

Document: 00117142357

specific factors."
omitted).
to

focus

Page: 9

Date Filed: 04/14/2017

Entry ID: 6084110

Flores-Machicote, 706 F.3d at 24 (citation

Accordingly, "[i]t is possible for a sentencing judge
too

individual."

much

on

the

community

and

too

little

on

the

Id.

The District Court here, however, committed no such
error.

Rather, the District Court discussed the facts of Millán's

particular conviction in detail and specifically enumerated each
firearm that Millán pled guilty to possessing, stating:
The firearms were AK-47 type rifle with an
obliterated serial number, loaded with 41 rounds,
and one in the chamber; a Baretta pistol, nine
millimeter, loaded with 11 rounds, and one in the
chamber; a Baretta pistol, nine millimeter, bearing
whatever serial number, loaded with 11 rounds, and
one in the chamber; a Smith and Wesson pistol,
caliber -- .40 caliber, loaded with 12 rounds, and
one in the chamber, in furtherance of a drug
trafficking crime.
The District Court then explained that the 84-month sentence
recommended by the parties in the plea agreement did not "seem to
correlate with this number of firearms" and the firearms' "deadly
fire power."
In addition, the District Court observed that, unless
Millán was storing the firearms for someone else, the nature of
the firearms suggested that Millán "was involved in big time drug
dealing and he understood that he needed all these things to
protect these drugs and his business."

And the District Court

noted that, according to the unchallenged pre-sentence report,

- 9 -

Case: 15-2248

Document: 00117142357

Page: 10

Date Filed: 04/14/2017

Entry ID: 6084110

Millán "voluntarily stated to the police, to the agents, that he
is indeed a drug dealer."

The District Court concluded that the

pre-sentence report painted a picture "not of an individual who
was storing firearms for somebody else," but "of a man who has no
criminal record, who is young, who accepted being a drug dealer,
and who had all these guns in reference to his drug trafficking
crimes."
Thus, while the District Court noted the massacre in the
context of considering the need for community deterrence, it did
not do so at the expense of considering the facts of Millán's
individual case.

Accordingly, Millán has not shown that the

District Court erred procedurally.
Millán appears to separately assert that the length of
his sentence was substantively unreasonable.

The law in our

circuit is unsettled as to whether we review claims of substantive
error

for

abuse

of

discretion

defendant fails to object below.
F.3d 24, 29 (1st Cir. 2016).

or

for

plain

error

where

the

United States v. Arsenault, 833

We need not resolve this question

here, as Millán's claim fails even under the more favorable abuse
of discretion standard.
"The
reasonableness

essence
is

of

whether

appellate
the

review

sentence

is

for
the

plausible . . . rationale and a defensible result."

substantive

product

of

a

United States

v. Rivera-González, 776 F.3d 45, 51 (1st Cir. 2015) (citation

- 10 -

Case: 15-2248

Document: 00117142357

omitted).

Page: 11

Date Filed: 04/14/2017

Entry ID: 6084110

As discussed above, the District Court articulated a

plausible rationale for arriving at its sentence by weighing the
relevant facts of the offense and the need for deterrence against
the mitigating factors.

To be sure, the sentence the District

Court arrived at was higher than the statutory minimum of 60 months
and the 84-month sentence jointly recommended by the parties.

But

the District Court was not bound by the parties' recommended
sentence. See id. And "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 [18 U.S.C. § 924(c)] is life imprisonment)."
Id.

at

51-52.

Thus,

to

the

extent

that

this

challenge

is

preserved, it, too, fails, as we see no basis for concluding on
this record that the sentence that resulted was unreasonably long.
IV.
For the foregoing reasons, the sentence is affirmed.

- 11 -