US v. Vega-Rivera

Filing

OPINION issued by Juan R. Torruella, Appellate Judge; Rogeriee Thompson, Appellate Judge and David J. Barron, Appellate Judge. Published. [15-2467]

Case: 15-2467

Document: 00117184662

Page: 1

Date Filed: 08/02/2017

Entry ID: 6110199

United States Court of Appeals
For the First Circuit
No. 15-2467
UNITED STATES OF AMERICA,
Appellee,
v.
JESÚS HUMBERTO VEGA-RIVERA,
Defendant, Appellant.

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

Before
Torruella, Thompson, and Barron,
Circuit Judges.

Franco L. Pérez-Redondo, with whom Eric Alexander Vos,
Federal Public Defender, Vivianne M. Marrero, Assistant Federal
Public Defender, Supervisor, Appeals Section, and Liza L. RosadoRodríguez, Research and Writing Specialist, were on brief for
appellant.
Juan Carlos Reyes-Ramos, Assistant United States Attorney,
with whom Rosa Emilia Rodríguez-Vélez, United States Attorney, and
Mariana E. Bauzá-Almonte, Assistant United States Attorney, Chief,
Appellate Division, were on brief for appellee.

August 2, 2017

Case: 15-2467

Document: 00117184662

Page: 2

THOMPSON, Circuit Judge.

Date Filed: 08/02/2017

Entry ID: 6110199

Appellant Jesús Humberto Vega-

Rivera ("Vega"), was charged with possession of a firearm by a
convicted felon, in violation of 18 U.S.C. §§ 922(g)(1) and
924(a)(2) (Count One), and illegal possession of a machine gun, in
violation of 18 U.S.C. §§ 922(o) and 924(a)(2) (Count Two).
Pursuant to a plea agreement, Vega pled guilty to both counts.
sentencing,

the

district

court

declined

to

follow

the

At

plea

agreement's recommendations, calculated the applicable Guidelines
range at 46 to 57 months, and sentenced Vega at the top of the
Guidelines range to 57 months' imprisonment.

Vega appeals his

sentence arguing that: (1) the district court improperly applied
a

two-level

Manual

enhancement

("U.S.S.G.")

§

pursuant
3C1.2

for

to

United

reckless

States

Guidelines

endangerment

while

fleeing from law enforcement; (2) the district court abused its
discretion in imposing a curfew and electronic monitoring as
conditions of his supervised release; and (3) that his sentence is
substantively unreasonable.

Finding his claims without merit, we

affirm.
Background
Because this appeal follows a guilty plea, "we glean the
relevant facts from the change-of-plea colloquy, the unchallenged
portions of the presentence investigation report (PSI Report), and
the record of the disposition hearing."
560 F.3d 45, 47 (1st Cir. 2009).

- 2 -

United States v. Vargas,

Around 4:00 p.m. on April 14,

Case: 15-2467

Document: 00117184662

Page: 3

Date Filed: 08/02/2017

Entry ID: 6110199

2015, Guaynabo City Municipal Transit Police attempted to pull
Vega over for a routine traffic stop on Road 177 in Puerto Rico.
Instead of pulling over when instructed by police, Vega took off,
resulting in a high speed chase that ended when Vega crashed his
car into another vehicle in the intersection of Road 177 and
Francisco Sein Street.

Immediately following the accident, Vega

took off from the vehicle on foot, carrying a Glock 23 .40 caliber
pistol in his hand.

While fleeing, Vega decided to ditch his gun,

throwing the Glock pistol into a bank parking lot on the northwest
corner of the intersection.

After abandoning the gun, Vega

continued to run from police, but he eventually surrendered at an
adjacent gas station and was placed under arrest.

This incident

took place near the Inter American University of Puerto Rico and
several businesses and restaurants in the area.
Police later recovered the Glock pistol discarded by
Vega in the bank parking lot.

The handgun was loaded with a 22-

round magazine filled with 20 bullets, modified to fire in fully
automatic mode, and contained one round of ammunition already
loaded in the chamber of the gun.

During an inventory of Vega’s

car, police also found a bullet-proof vest and two additional Glock
22-round capacity magazines with 20 bullets in each.

A records

check of the Glock handgun showed that the gun was reported stolen
in September 2009.

Further investigation revealed that the Glock

and accompanying ammunition were not manufactured in Puerto Rico

- 3 -

Case: 15-2467

Document: 00117184662

Page: 4

Date Filed: 08/02/2017

Entry ID: 6110199

and must have been shipped or transported in interstate or foreign
commerce.
Several hours after being taken into custody, Homeland
Security

Investigations

agents

interviewed

Vega.

At

the

interview, Vega waived his constitutional rights, including his
right to have a lawyer present.

Vega then told the investigators

that three days prior to the incident, he had paid $400 for the
Glock handgun already modified for fully automatic fire and the
three accompanying ammunition magazines.

Vega also told the

special agents that he had just finished serving a three-and-ahalf year prison sentence for narcotics.

Further investigation

confirmed that Vega had in fact been found guilty of possession of
a controlled substance in July 2009.
Vega was subsequently charged in a two-count indictment
with possession of a firearm by a convicted felon, in violation of
18 U.S.C. §§ 922(g)(1) and 924(a)(2) (Count One) and illegal
possession of a machine gun, in violation of 18 U.S.C. §§ 922(o)
and 924(a)(2) (Count Two).1

Vega eventually pled guilty to both

counts pursuant to a plea agreement.

Under the terms of the plea

agreement Vega's base offense level was set at twenty, pursuant to
U.S.S.G. § 2K2.1(a)(4).

His base offense level was then increased

1

The indictment also contained a firearms and ammunition
forfeiture allegation, pursuant to 18 U.S.C. § 924(d)(1) and 28
U.S.C. § 2461(c).

- 4 -

Case: 15-2467

Document: 00117184662

Page: 5

Date Filed: 08/02/2017

Entry ID: 6110199

by two levels because the firearm he possessed was stolen, pursuant
to

U.S.S.G.

§

2K2.1(b)(4),

and

decreased

three

levels

acceptance of responsibility, pursuant to U.S.S.G. § 3E1.1.

for
With

these adjustments, Vega's total offense level was calculated at
nineteen. The parties did not stipulate to Vega's Criminal History
Category and agreed to a sentence within the applicable Guidelines
range, depending on whatever the court determined Vega's Criminal
History Category to be.

Vega also agreed to waive his right to

appeal if sentenced in accordance with the terms of the plea
agreement.
The

Pre-Sentence

Investigation

Report

("PSR")

was

originally prepared in September 2015 and revised in October 2015.
Like the plea agreement, probation calculated Vega's base offense
level at twenty, added two levels because the firearm he possessed
was

stolen,

and

responsibility.
also

added

a

subtracted

three

levels

for

acceptance

of

Unlike the plea agreement, however, probation
two-level

enhancement

for

reckless

endangerment

during flight, pursuant to U.S.S.G. § 3C1.2, stating that Vega
"recklessly created a substantial risk of death or serious bodily
injury to another person in the course of fleeing from a law
enforcement officer."

Consequently, the PSR calculated Vega's

total offense level at twenty-one.

The PSR also calculated Vega's

Criminal History Category at III because of two prior convictions
for possession and conspiracy to possess with intent to distribute

- 5 -

Case: 15-2467

Document: 00117184662

Page: 6

Date Filed: 08/02/2017

Entry ID: 6110199

controlled substances in 2007 and 2008. With a total offense level
of

twenty-one

and

a

Criminal

History

Category

of

III,

the

applicable Guidelines range was 46 to 57 months.
Vega filed objections to the PSR, including in relevant
part, an objection to the application of the two-level enhancement
for recklessly creating a substantial risk of death or serious
bodily injury.

Vega argued that his conduct "did not create a

risk to others of the degree required by the Guidelines, therefore
his actions were not reckless."

Vega also argued that he did not

create a substantial risk of death or serious bodily injury while
fleeing from police because "[h]e did not brandish nor discharge[]
the firearm . . . , [n]o one was injured . . . , [h]e did not want
to use [the firearm] and did not use [it]," and he did not run
into any individuals while fleeing.
At sentencing, Vega's counsel again argued that the twolevel enhancement should not apply.

Vega's counsel argued that

"although [she] may concede that [Vega] acted recklessly and he
created

a

risk,

that

risk

had

to

be

substantial;

and

[she]

believe[d] that in this case [Vega's] actions . . . did not reach
the level of substantial."

The government agreed with defense

counsel that Vega's actions did not rise to the level of creating
a "substantial" risk.

Probation, however, argued that the two-

level enhancement was merited because:

- 6 -

Case: 15-2467

Document: 00117184662

Page: 7

Date Filed: 08/02/2017

Entry ID: 6110199

the defendant disobeyed the officers and fled
at a high rate of speed and crashed into
another vehicle. This was the location near
a college when he actually fled the scene. He
got out of the car after crashing the other
vehicle, ran with a gun in his hand. [Vega
later discarded the gun in a public place.]
And this all happened next to a college at
4:00 p.m. where students are around all the
time.
So we do believe that it was a
substantial risk of death of any of those
students, any other person driving a car, or
just a person that was around.
The district court agreed with probation and applied the
two-level enhancement for creating a substantial risk of death or
serious bodily injury while fleeing from law enforcement.

The

court found that the sentence agreed to by the parties in the plea
agreement "[did] not reflect the seriousness of the offense, [did]
not promote respect for the law, [did] not protect the public from
further crimes by Mr. Vega and [did] not address the issues of
deterrence and punishment."

Finding a total offense level of

twenty-one, with a Criminal History Category of III, the court
sentenced Vega at the top of the Guidelines range to 57 months'
imprisonment.

The court imposed a term of three years' supervised

release to be served upon Vega's release from prison.

The court

also set a curfew and electronic monitoring as terms of Vega's
supervised release.

Vega's counsel objected to both terms of

supervised release and again to the application of the two-level
enhancement under U.S.S.G. § 3C1.2.

- 7 -

Case: 15-2467

Document: 00117184662

Page: 8

Date Filed: 08/02/2017

Entry ID: 6110199

On appeal, Vega seeks to vacate his sentence, arguing
that the district court erred in: (1) applying the § 3C1.2 twolevel enhancement for reckless endangerment during flight and (2)
imposing a curfew and electronic monitoring as conditions of his
supervised release.

Vega also argues that (3) his sentence is

substantively unreasonable.

We address each argument in turn.

1. U.S.S.G. § 3C1.2 Enhancement
Vega argues that the district court erred in increasing
his base offense level by two levels pursuant to U.S.S.G. § 3C1.2.
Vega argues that his actions did not rise to the degree of
recklessness required and, even if his actions were reckless, they
did not create a substantial risk of death or serious injury.

The

government argues that Vega's actions were sufficiently reckless
and created a substantial risk to others.2
Section

3C1.2

provides

that

"[i]f

the

defendant

recklessly created a substantial risk of death or serious bodily
injury to another person in the course of fleeing from a law

2

As an initial matter, the government also argues that Vega
waived the argument that his conduct was not reckless when his
attorney stated at sentencing that "although [she] may concede
that [Vega] acted recklessly and he created a risk, that risk had
to be substantial; and [she] believe[d] that in this case [Vega's]
actions [] did not reach the level of substantial." Because Vega's
arguments fail on the merits, we need not address whether he waived
his recklessness argument. See United States v. Llanos-Falero,
847 F.3d 29, 33 n.2 (1st Cir.), cert. denied, 137 S. Ct. 2229
(2017) ("Because the issues Llanos–Falero raises on appeal all
fail, we bypass the appellate-waiver issue and proceed to the
merits.").

- 8 -

Case: 15-2467

Document: 00117184662

Page: 9

Date Filed: 08/02/2017

Entry ID: 6110199

enforcement officer, [his base offense level may be] increase[d]
by 2 levels." "Recklessness requires that the defendant was 'aware
of the risk created by his conduct and the risk was of such a
nature and degree that to disregard that risk constituted a gross
deviation from the standard of care that a reasonable person would
exercise

in

such

a

situation.'"

United

States

v.

Carrero-

Hernández, 643 F.3d 344, 348 (1st Cir. 2011) (citing U.S.S.G.
§ 2A1.4, cmt. n.1; U.S.S.G. § 3C1.2, cmt. n.2).
"We review a district court's interpretation of the
'legal meaning and scope' of a sentencing guideline de novo.
However, 'we review the court's factfinding for clear error, giving
due deference to the court's application of the guidelines to the
facts.'"

Id. at 349 (citing United States v. Thompson, 32 F.3d 1,

4 (1st Cir. 1994)).
a. Recklessness
Contrary to Vega's contentions, there were sufficient
bases to support the district court's finding that his conduct was
reckless.
First, Vega's attempts to flee from officers resulted in
a high-speed chase near a local university that only ended when he
rammed his car into another vehicle.

The intersection where the

accident and subsequent chase (on foot) took place was in an active
business area near several restaurants, fast-food spots, bars, and

- 9 -

Case: 15-2467

Document: 00117184662

a clinical laboratory.3

Page: 10

Date Filed: 08/02/2017

Entry ID: 6110199

Such facts alone are sufficient to support

the district court's finding that Vega's conduct was reckless.
See United States v. Jimenez, 323 F.3d 320, 324 (5th Cir. 2003)
(upholding district court application of a § 3C1.2 enhancement
where defendant engaged officers in a high speed chase through
business and residential areas late at night, defendant's conduct
"exhibit[ed] a reckless disregard for the safety of various persons
who resided on the street, those who might otherwise be present on
the street, and the police officers involved in the pursuit");
United States v. Velasquez, 67 F.3d 650, 654-55 (7th Cir. 1995)
(defendant fleeing scene at high rate of speed through residential
neighborhoods supported § 3C1.2 increase).

And while the record

does not indicate the specifics of the chase or accident, such as
whether Vega crashed into a parked or moving vehicle, the precise
speed at which he was driving, or whether individuals were located
inside or near the vehicle at the time of the accident, Vega

3

We take judicial notice of the Google map provided by the
government identifying the area where Vega crashed his car and
began his flight on foot from police.
See United States v.
Burroughs, 810 F.3d 833, 835 n.1 (D.C. Cir. 2016) ("We grant the
government's motion to take judicial notice of a Google map. It
is a 'source[] whose accuracy cannot reasonably be questioned,' at
least for the purpose of identifying the area where Burroughs was
arrested and the general layout of the block." (quoting Fed. R.
Evid. 201(b))).

- 10 -

Case: 15-2467

Document: 00117184662

Page: 11

Date Filed: 08/02/2017

Entry ID: 6110199

proceeded to take off running with a loaded firearm in his hand in
an area where students, various persons purchasing meals, and
others may have been present.

He then threw the loaded, fully

automatic gun in a public parking lot.

And, again, while the

record does not indicate whether there were individuals located in
the parking lot at the exact time when he discarded the gun, it is
reasonable to infer that the gun, so casually tossed into a public
arena, could have been found and resulted in injury to others.
therefore

agree

with

the

persuasive

authority

of

our

We

sister

circuits and hold that the absence of such specific minutiae does
not invalidate a finding that the defendant's actions were reckless
where his actions grossly deviated from the standard of care that
a reasonable person would exercise in the same situation.

See

United States v. Porter, 643 F. App'x 758, 760 (10th Cir. 2016)
(unpublished) ("[The defendant argues these undisputed facts are
insufficient, as a matter of law, to support the enhancement
because the facts don't identify the speeds at which he drove, the
specific traffic violations he committed, or any bystanders he
actually placed in harm's way.

But [the defendant] cites no

authority supporting his argument that a person who flees in a
vehicle to evade a law enforcement officer, drives at unspecified
speeds,

commits

several

traffic

violations,

crashes

into

a

residential garage, and drops a fully-loaded semiautomatic pistol
on the ground as he continues to flee on foot hasn't grossly

- 11 -

Case: 15-2467

Document: 00117184662

Page: 12

Date Filed: 08/02/2017

Entry ID: 6110199

deviated from the standard of care that a reasonable person, rather
than a reasonable fleeing criminal suspect, would exercise in the
same situation."); United States v. May, 430 F. App'x 520, 526
(6th

Cir.

2011)

(unpublished)

(affirming

district

court's

application of the § 3C1.2 enhancement where defendant discarded
a firearm in an area where "pedestrian traffic" was likely).
b. Substantial Risk
Similarly, the district court properly found Vega's
actions to present a substantial risk of harm here.

In Carrero-

Hernández we upheld a sentencing court's application of a § 3C1.2
enhancement when the appellant fled from police at forty-five miles
per hour after realizing he was being followed on small back roads
of a residential neighborhood in the early evening.
349.

643 F.3d at

The appellant contended that his conduct "was not nearly so

dangerous as other § 3C1.2 enhancement cases."

Id. at 348.

We

noted that while it is true that more egregious conduct than that
involved

in

Carrero-Hernández's

case

had

resulted

in

the

application of the § 3C1.2 enhancement, "[w]e have not held,
however, that such wildly dangerous conduct is the minimum required
under § 3C1.2."

Id. at 349.

Similarly here, Vega's conduct is

sufficiently egregious to support the application of the § 3C1.2
enhancement.

At the risk of being redundant, we repeat, Vega led

officers on a high-speed chase at 4:00 in the afternoon, ran on
public roads with a loaded fully-automatic gun in his hand, and

- 12 -

Case: 15-2467

Document: 00117184662

Page: 13

Date Filed: 08/02/2017

Entry ID: 6110199

then threw the gun into a public parking lot where pedestrians
were sure to frequent.

Such conduct could have very well resulted

in substantial injury to others.

See id., 643 F.3d at 349 (noting

that "in United States v. Chandler, 12 F.3d 1427 (7th Cir. 1994),
the Seventh Circuit upheld a § 3C1.2 enhancement after a car chase
that passed through a residential neighborhood at dusk, and during
which the defendant 'traveled at speeds that ranged from thirtyfive to fifty miles per hour while swerving from lane to lane to
prevent the police from going around him.'
this

conduct

'might

very

well

have

The court noted that

resulted

in

injury'

to

others.").
2. Curfew and Electronic Monitoring
Vega also appeals the district court's imposition of a
curfew and electronic monitoring as conditions of his supervised
release.

Because Vega objected, we review the sentencing court's

imposition of those conditions for abuse of discretion.

United

States v. Garrasteguy, 559 F.3d 34, 40 (1st Cir. 2009) ("We review
a sentencing court's decision to impose special conditions of
supervised release for abuse of discretion.

If, however, a

defendant has an opportunity to object to a special condition at
sentencing, and stays silent, we review the imposition of a
supervised release condition for plain error only." (citations
omitted)).

- 13 -

Case: 15-2467

Document: 00117184662

Vega

argues

Page: 14

that

the

Date Filed: 08/02/2017

imposition

of

a

Entry ID: 6110199

curfew

and

electronic monitoring are not reasonably related to the nature and
circumstances of his offense and therefore constitute a greater
deprivation

of

liberty

than

is

reasonably

necessary.

The

government argues that the court's imposition of the special
conditions

is

reasonably

characteristics,

the

related

nature

and

to

Vega's

circumstances

history

of

the

and

instant

offense, and the need for deterrence, protection of the public and
correctional treatment.
The
supervised

district

release

court

that

is

can

"impose

reasonably

any

related

condition
to

(1)

of
the

defendant's offense, history, and characteristics; (2) the need to
deter the defendant from further criminal conduct; (3) the need to
protect the public from further crimes by the defendant; and (4)
the

effective

educational,

vocational,

correctional treatment of the defendant."
357 F.3d 14, 20 (1st Cir. 2004).

medical,

or

other

United States v. York,

"[T]he critical test is whether

the challenged condition is sufficiently related to one or more of
the

permissible

omitted).

goals

of

supervised

release."

Id.

(citation

A special condition does not need "a written or oral

explanation of the reasons supporting the condition if [this Court]
can infer the [district] court's reasoning by comparing what was
argued . . . [or what was] in the pre-sentence report with what
the court did."

Garrasteguy, 559 F.3d at 42.

- 14 -

Case: 15-2467

Document: 00117184662

Page: 15

Date Filed: 08/02/2017

Entry ID: 6110199

Here, the district court's imposition of electronic
monitoring and a curfew is sufficiently related to the defendant's
offense, history, and characteristics.

While the district court's

explanation of its reasons for imposing the conditions is not
robust, we can infer the district court's reasoning from the
parties' arguments, the PSR, and what the court did.

Vega's

criminal history included two prior drug-related convictions and
a more recent arrest for carrying and using a firearm without a
license.
of

Specifically, in May 2009 Vega was sentenced to a term

three

years'

substances.

imprisonment

for

possession

of

controlled

Soon after release, in May 2012, Vega was arrested

and charged by the commonwealth for carrying and using a firearm
without a license.

The district court noted that "as happens too

many times in the local court system the [weapons] charge was
dismissed
recharged."

on

speedy

trial

grounds

but

Mr.

Vega

was

never

And Vega's current offense again involved the illegal

possession of a weapon.

It can be inferred from these facts that

the district court properly imposed the conditions because of
Vega's history, the need to deter Vega from further criminal
conduct, the need for heightened electronic supervision, and the
need to protect the public from further crimes by the defendant.
See York, 357 F.3d at 20.

- 15 -

Case: 15-2467

Document: 00117184662

Page: 16

Date Filed: 08/02/2017

Entry ID: 6110199

3. Substantive Reasonableness
Finally, Vega challenges his sentence as substantively
unreasonable.

Vega argues that "the district court failed to

adequately consider the arguments that were offered in favor of
the sentence at the lower-end of the Guidelines range as calculated
in the plea agreement" or in the district court's own Guidelines
calculation of 46 to 57 months.

"The hallmarks of a substantively

reasonable sentence are 'a plausible sentencing rationale and a
defensible result.'"

United States v. Zapata-Vázquez, 778 F.3d

21, 24 (1st Cir. 2015) (quoting United States v.
87, 96 (1st Cir. 2008)).

Martin, 520 F.3d

Moreover, "reversals in substantive

reasonableness challenges are 'particularly unlikely when . . . the
sentence imposed fits within the compass of a properly calculated
[Guidelines sentencing range].'"

United States v. Hernández-

Maldonado, 793 F.3d 223, 227 (1st Cir.), cert. denied, 136 S. Ct.
522 (2015) (quoting United States v. Ruiz–Huertas, 792 F.3d 223,
228–29 (1st Cir. 2015) (alterations in original)).
Here, Vega fails to demonstrate that his sentence was
substantively unreasonable.

In conducting its sentencing task,

the district court noted Vega's prior convictions for possession
and conspiracy to possess with intent to distribute controlled
substances.

It further took into account his personal history, as

well as the nature and circumstances of the instant offense,
remarking that:

- 16 -

Case: 15-2467

Document: 00117184662

Page: 17

Date Filed: 08/02/2017

Entry ID: 6110199

Mr. Vega's offense involved 61 rounds of
ammunition, 21 rounds loaded in a machine gun,
and two additional magazines each loaded with
20 rounds, a bulletproof vest. He also [had]
a previous arrest on a weapons charge, and, as
I indicated, as happens too many times in the
local court system the charge was dismissed on
speedy trial grounds but Mr. Vega was never
recharged.
The Court also has taken into
consideration the fact that he created a
substantial risk to other persons when he fled
from law enforcement.
Accordingly, the court offered "a plausible rationale"
for its decision to sentence Vega at the top of the applicable
Guidelines.

See Zapata-Vázquez, 778 F.3d at 24.
Conclusion

For

the

foregoing

reasons,

court's sentencing decisions.

- 17 -

we

affirm

the

district