US v. Mulero-Algarin

Filing

OPINION issued by Juan R. Torruella, Appellate Judge; Sandra L. Lynch, Appellate Judge and David J. Barron, Appellate Judge. Published. [16-1287]

Case: 16-1287

Document: 00117183629

Page: 1

Date Filed: 07/31/2017

Entry ID: 6109625

United States Court of Appeals
For the First Circuit
No. 16-1287
UNITED STATES OF AMERICA,
Appellee,
v.
HÉCTOR MULERO-ALGARÍN,
Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Carmen Consuelo Cerezo, U.S. District Judge]

Before
Torruella, Lynch, and Barron,
Circuit Judges.

Mauricio Hernández Arroyo and Law Offices of Mauricio
Hernández Arroyo, Esq. on brief for appellant.
Julia M. Meconiates, Assistant U.S. Attorney, Mariana E.
Bauzá-Almonte, Assistant U.S. Attorney, Chief, Appellate Division,
and Rosa Emilia Rodríguez-Vélez, United States Attorney, on brief
for appellee.

July 31, 2017

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LYNCH,

Circuit

Page: 2

Judge.

Date Filed: 07/31/2017

While

on

supervised

Entry ID: 6109625

release

following his serving a 135-month term of imprisonment for a 2002
conviction

for

a

federal

drug

felony,

Héctor

committed a second federal drug felony in 2014.
committed

two

offenses:

violation

of

the

supervised release and the new drug offense.

Mulero-Algarín
In doing so, he

conditions

of

his

Mulero-Algarín pled

guilty and was sentenced for the new drug offense by a different
district court judge than presided over his previous conviction
and sentence.

He was newly sentenced to 120 months' imprisonment

for that drug offense.
In a separate proceeding, held before the district court
judge who had presided over the original 2002 drug case, MuleroAlgarín's term of supervised release was revoked and replaced with
a 36-month prison sentence, to be served consecutively to the 120month sentence imposed on him for the new drug offense.

See 18

U.S.C. §§ 3583(e)(3), 3584(a). The court also stated that it would
not impose a further term of supervised release upon MuleroAlgarín's release from that confinement.

This appeal concerns

only the revocation sentence.
Mulero-Algarín does not dispute that he violated the
conditions of his supervised release by committing the second drug
crime or that revocation of his supervised release was warranted.
He appeals only the district court's decision to impose his
revocation sentence consecutively to, rather than concurrently
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with, his sentence for the second crime.
incorrect

argument

that

the

court

Entry ID: 6109625

He makes the factually

failed

to

consider

his

cooperation with the government as to his second drug crime as
part of this claim.
We hold that the district court committed no error.

We

affirm Mulero-Algarín's revocation sentence.
I.
On

May

15,

2002,

Mulero-Algarín

pled

guilty

to

possession of cocaine with intent to distribute, in violation of
21 U.S.C. § 841(a)(1), after he was caught piloting a speedboat
with 1,576 kilograms of cocaine on board.

U.S. District Judge

Carmen C. Cerezo sentenced him to 135 months' imprisonment, plus
five

years

of

supervised

release.

He

served

his

term

of

imprisonment.
Mulero-Algarín's supervised release term commenced on
September 2, 2011, with an expiration date of September 1, 2016.
On January 22, 2014, claiming he had "faithfully complied" with
the conditions of his supervised release,1 Mulero-Algarín moved
for its early termination.

The government opposed that motion,

and Judge Cerezo denied it.

1

As conditions of his original supervised release,
Mulero-Algarín was required to not, inter alia, "commit another
federal, state or local crime," "purchase, possess, use,
distribute, or administer any controlled substance," or "associate
with any person(s) engaged in criminal activity."
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On December 10, 2014, less than a year after requesting
early termination of his supervised release, Mulero-Algarín was
detained on board a speedboat, along with one other passenger,
after fleeing from a U.S. Coast Guard vessel and throwing multiple
packages overboard, one of which was found to contain approximately
30

kilograms

of

cocaine.

Mulero-Algarín

was

charged

with

conspiring to possess cocaine with intent to distribute on board
a

vessel

of

the

United

States,

see

46

U.S.C.

§§

70502(b),

70503(a)(1), 70504(b)(1), 70506(b), and knowingly failing to obey
an order of a federal law enforcement officer to heave to a vessel
of the United States, see 18 U.S.C. § 2237(a)(1).

This new

criminal case was assigned to U.S. District Judge Pedro A. DelgadoHernández.
On October 16, 2015, Mulero-Algarín pled guilty in the
new drug case, and Judge Delgado-Hernández sentenced him to 120
months' imprisonment -- the applicable mandatory minimum -- plus
five years of supervised release.

Mulero-Algarín's plea agreement

stipulated that, in the event that he was to be sentenced for
violating the conditions of his original supervised release in a
revocation proceeding before Judge Cerezo, he could request that
his revocation sentence run concurrently with his new sentence,
while

the

government

could

request

consecutively.

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that

the

sentences

run

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The U.S. Probation Office had initiated a revocation
proceeding before Judge Cerezo on December 16, 2014, after learning
of Mulero-Algarín's December 10 detention.

On January 27, 2015,

"consistent with the [c]ourt's usual practice . . . when the
ground[] for revocation of supervised release is new criminal
conduct," Judge Cerezo ordered the revocation proceeding continued
until Mulero-Algarín's new criminal case concluded.

On October

26, 2015, with the revocation proceeding resumed, Mulero-Algarín
filed in that proceeding a sentencing memorandum in which he
conceded his supervised release violation based on his commission
of a new crime, and requested that his revocation sentence run
concurrently with his new sentence.
At

his

February

17,

2016

sentencing

hearing

for

violating the conditions of his supervised release, Mulero-Algarín
renewed his request for a concurrent revocation sentence.

The

government requested that the sentences run consecutively.

After

determining

Range

that

Mulero-Algarín's

Guidelines

Sentencing

("GSR") was 24 to 30 months, Judge Cerezo noted that Mulero-Algarín
had violated his supervised release2 by engaging in "the same [type
of] activity and conduct" for which he had been sentenced to 135

2

Judge Cerezo found that Mulero-Algarín had violated the
conditions of his supervised release by "committing and being
convicted of another federal crime," "possessing [a] controlled
substance[,] and associating with a person engaged in criminal
activity." Mulero-Algarín did not contest that finding.
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months' imprisonment in 2002.

Date Filed: 07/31/2017

Entry ID: 6109625

In light of "the seriousness of the

offense, and . . . the need to provide adequate deterrence to
[Mulero-Algarín's] future conduct," Judge Cerezo concluded that a
sentence of 36 months' imprisonment, to be served consecutively to
the 120-month sentence imposed on Mulero-Algarín in his new drug
case, would be "sufficient but not greater than necessary in this
case."

See 18 U.S.C. §§ 3553(a), 3583(e)(3), 3584.

This appeal

followed.
II.
On appeal, Mulero-Algarín raises both procedural and
substantive challenges to Judge Cerezo's decision to impose the
36-month

revocation

sentence

consecutively

to,

rather

than

concurrently with, the 120-month sentence for the second drug
crime.3

Assuming

in

Mulero-Algarín's

favor

that

all

of

his

challenges were preserved, we review his revocation sentence for
abuse of discretion.

See United States v. Butler-Acevedo, 656

F.3d 97, 99 (1st Cir. 2011).

We hold that there was no error.

3

Mulero-Algarín does not challenge Judge Cerezo's
decision to vary his revocation sentence upward to 36 months from
the GSR of 24 to 30 months.
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A.

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Mulero-Algarín's Claims of Procedural Error
Mulero-Algarín advances two related claims of procedural

error regarding the consecutive nature of his revocation sentence,
both of which rely on a misunderstanding of applicable law.4
First, Mulero-Algarín argues that Judge Cerezo failed to
credit him for the time that he had already served in prison as a
result of his 2002 conviction.

Mulero-Algarín notes that the

maximum term of reimprisonment for which he was eligible upon
revocation was capped by statute at five years.

See 18 U.S.C.

§ 3583(e)(3). He also notes that under the version of § 3583(e)(3)
applicable here, see United States v. Tapia-Escalera, 356 F.3d
181, 187-88 (1st Cir. 2004) (2003 amendment to § 3583(e)(3) does
not apply when the offense of conviction predates that amendment),
the five-year cap applies to the aggregate of all periods of
reimprisonment that he could be required to serve for violations
of his supervised release.

From those premises, Mulero-Algarín

argues that Judge Cerezo should have counted the 135-month prison
sentence

he

received

in

2002

toward

the

five-year

aggregate

reimprisonment cap and concludes that -- because the cap had been
exceeded

--

he

could

be

required

to

serve

only

a

nominal,

concurrent revocation sentence.

4

To the extent that Mulero-Algarín's argument relies at
all on our decision in United States v. Rodríguez-Meléndez, 828
F.3d 35 (1st Cir. 2016), that case is inapposite.
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Mulero-Algarín's argument mistakenly characterizes his
original term of imprisonment for the underlying drug offense as
a term of reimprisonment for a supervised release violation.

The

cap in § 3583(e)(3) -- both before and after that section was
amended in 2003 -- applies only to terms of reimprisonment imposed
upon revocation.5
sentence

to

Mulero-Algarín has received no prior revocation

credit

toward

the

cap.

Judge

Cerezo

correctly

recognized this and did not credit Mulero-Algarín for any time
that he had already served in prison.
36-month

revocation

sentence

fell

Mulero-Algarín's resulting
well

within

the

five-year

reimprisonment cap.6

5

Tapia-Escalera makes this clear.
See 356 F.3d 181.
There, the defendant had previously violated his supervised
release and been sentenced upon revocation to ten months of
reimprisonment, plus four additional years of supervised release.
Id. at 182. At issue was the district court's imposition of a 30month term of reimprisonment upon the defendant's violation of his
additional supervised release.
Id.
Applying the version of
§ 3583(e)(3) applicable here, we held that the district court had
erred by failing to count the prior ten-month sentence toward the
aggregate cap, which -- based on that defendant's offense of
conviction -- was 36 months. Id. at 188. We then remanded so
that the district court could reduce the 30-month sentence by four
months to comport with the cap. Id. The five years in prison
that the defendant had served for the original offense did not
bear on the assessment of whether the cap had been exceeded. See
id. at 182.
6

Mulero-Algarín's citation to 18 U.S.C. § 3583(h) takes
him no further.
Section 3583(h) outlines the cap that applies
when a district court revokes a defendant's supervised release and
replaces it with a term of reimprisonment plus an additional term
of supervised release. Judge Cerezo did not impose an additional
term of supervised release on Mulero-Algarín, so § 3583(h) is
inapposite.
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Mulero-Algarín also argues that Judge Cerezo failed to
credit him for the time that he had already served under supervised
release as a result of his 2002 conviction -- specifically, the 39
months between the commencement of his supervised release in
September 2011 and his arrest for the second crime in December
2014.

He argues that Judge Cerezo should have deducted these 39

months from his 36-month revocation sentence and concludes that - because his credit exceeded his sentence -- he could be required
to serve only a nominal, concurrent revocation sentence.
This claim is easily dispatched, as it is explicitly
foreclosed by statute.

Defendants sentenced to reimprisonment

upon revocation do not receive "credit for time previously served
on postrelease supervision."

18 U.S.C. § 3583(e)(3).

Mulero-Algarín's procedural claims both fail.7

There

was no error.
B.

Mulero-Algarín's Claim of Substantive Unreasonableness
Mulero-Algarín claims that Judge Cerezo's decision to

impose his revocation sentence consecutively to his sentence for
his second crime was substantively unreasonable, in light of
certain factors that he argues militated in favor of concurrent

7

To the extent that -- as an alternative to his claim
that his time served in prison or under supervised release entitled
him to a concurrent revocation sentence -- Mulero-Algarín claims
that his time served entitled him to an incremental reduction of
his revocation sentence, that claim fails for the same reasons.
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sentences.

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Specifically, he argues that (1) he cooperated with

the government following his arrest for the second drug crime,
(2) he was already penalized for his supervised release violation
through his sentence for the second crime, and (3) due to his 120month sentence for the second crime, he will be incarcerated until
he

is

nearly

60

years

old,

even

without

the

addition

of

a

revocation sentence.
Defense counsel vigorously pressed these factors at
sentencing, and there is no reason to think that Judge Cerezo did
not consider them, so we construe Mulero-Algarín's challenge as
directed at the weight that the factors were afforded.

See United

States v. Cortés-Medina, 819 F.3d 566, 571 (1st Cir.), cert.
denied, 137 S. Ct. 410 (2016).

How much weight to afford various

factors at sentencing is a judgment committed to the informed
discretion of the sentencing court. See United States v. Clogston,
662 F.3d 588, 593 (1st Cir. 2011).
Judge Cerezo considered the cooperation that MuleroAlgarín provided in his second drug case -- in the form of the
names of his criminal associates -- along with the fact that he
had already been credited for such assistance in that case.
Indeed, Mulero-Algarín's cooperation factored prominently into
Judge Delgado-Hernández's decision in that case to impose only the
mandatory minimum sentence.

And while Mulero-Algarín asserted in

his revocation proceeding that he had offered to assist the
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government further by wearing a wire around other known drug
traffickers, Judge Cerezo was also aware that he had provided no
such service, as he had not been released on bail.
Similarly, Judge Cerezo considered the fact that the GSR
in Mulero-Algarín's second drug case was increased because he had
committed the offense while on supervised release along with the
fact that Mulero-Algarín was not actually penalized for that
increase, given that he received the mandatory minimum sentence
for his offense.
Finally, Judge Cerezo considered the fact that MuleroAlgarín will be 60 years old after serving a decade in prison for
his new drug crime along with the fact that he committed that crime
at age 49, after having served a decade in prison for a similar
crime.
After considering these factors, Judge Cerezo reasonably
afforded overriding weight to the need to deter Mulero-Algarín
from further recidivism and justifiably concluded that additional
time in prison following his 120-month term for his new crime would
be an appropriate sentence for his supervised release violation.
See 18 U.S.C. § 3584(b).

In assessing the totality of the

circumstances as she did, and in sentencing Mulero-Algarín to a
consecutive term of imprisonment, Judge Cerezo certainly did not
exceed her "broad discretion" to fashion a revocation sentence
under 18 U.S.C. § 3583(e)(3).

United States v. Hernández–Ferrer,
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599 F.3d 63, 66 (1st Cir. 2010).
not

to

sentence

Date Filed: 07/31/2017

Entry ID: 6109625

The fact that Judge Cerezo "chose

[Mulero-Algarín]

according

recommendation" does not establish error.

to

his

counsel's

Butler-Acevedo, 656

F.3d at 101.
III.
Mulero-Algarín's revocation sentence is affirmed.

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