US v. Perez-Carrera

Filing

OPINION issued by Juan R. Torruella, Appellate Judge; Rogeriee Thompson, Appellate Judge and William J. Kayatta , Jr., Appellate Judge. Unpublished. [16-1392]

Case: 16-1392

Document: 00117156075

Page: 1

Date Filed: 05/17/2017

Entry ID: 6092831

Not for Publication in West's Federal Reporter

United States Court of Appeals
For the First Circuit
No. 16-1392
UNITED STATES OF AMERICA,
Appellee,
v.
ISAÍAS PÉREZ-CARRERA,
Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Daniel R. Domínguez, U.S. District Judge]

Before
Torruella, Thompson, and Kayatta,
Circuit Judges.

Raul S. Mariani Franco on brief for appellant.
Mariana E. Bauzá-Almonte, Assistant United States Attorney,
Chief, Appellate Division, and Rosa Emilia Rodríguez-Vélez, United
States Attorney, on brief for appellee.

May 17, 2017

Case: 16-1392

Document: 00117156075

Page: 2

KAYATTA, Circuit Judge.
defendant

Isaías

Pérez-Carrera

Date Filed: 05/17/2017

Entry ID: 6092831

The district court sentenced
("Pérez")

to

50

months'

imprisonment, varying upward from a guidelines sentencing range of
30 to 37 months.

Pérez appeals.

He argues that the district court

erred by justifying the upward variance with factors that the
guidelines sentencing range already took into account.
to

Pérez,

this

error

rendered

substantively unreasonable.

his

sentence

According

procedurally

and

We disagree and thus affirm.
I.

According to the operative presentence investigation
report ("PSR"), on December 31, 2013, a private security guard
called the police to report that an individual had exited his
vehicle, pulled a hood over his head, placed a firearm inside a
pack on his shoulder, and entered a pharmacy.

The guard also said

that he heard a sound consistent with a firearm being loaded.

The

police responded and spoke with the guard, who identified the
individual he had observed. The police approached that individual,
confiscated his shoulder pack, and found a loaded firearm inside.
They arrested the individual, whom they later identified as Pérez.
Pérez was charged in a one-count indictment with possessing a
firearm after having been convicted of a felony in violation of 18
U.S.C. § 922(g).

He pled guilty to that charge on December 8,

- 2 -

Case: 16-1392

2014.

Document: 00117156075

Page: 3

Date Filed: 05/17/2017

Entry ID: 6092831

His plea was not the product of any agreement with the

government.
The operative PSR includes an offense-level computation
that lists Pérez's total offense level as seventeen, reflecting a
base offense level of twenty, less three levels because Pérez
accepted

responsibility.

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

§§

Comm'n 2015).

U.S.

2K2.1(a)(4)(A),

Sentencing
3E1.1(a)-(b)

Guidelines
(U.S.

Manual

Sentencing

Pérez's criminal history score is listed as five:

he accrued three points for a prior conviction, id. § 4A1.1(a),
and two points for having committed the instant offense while
serving a term of supervised release, id. § 4A1.1(d).

That score

corresponds with criminal history category III and, combined with
the

total

offense

level

of

seventeen,

sentencing range of 30 to 37 months.

yields

a

guidelines

Id. ch. 5, pt. A (Sentencing

Table).
The district court convened a sentencing hearing on
January 28, 2016.

During the hearing, Pérez elicited testimony

from three witnesses.

He first called a clinical geneticist from

the University of Puerto Rico's Department of Health who treated
the defendant's son in connection with his significant congenital
impairments.

The

geneticist

testified

about

the

treatments and demanding care that the child required.

manifold
Next, the

defendant's wife testified about the support she needed from Pérez
to care for their son and her two other children.

- 3 -

Finally, the

Case: 16-1392

Document: 00117156075

Page: 4

Date Filed: 05/17/2017

Entry ID: 6092831

defendant's mother testified about the importance of Pérez's role
in helping her run a family business.

The district court then

heard argument from defense counsel and from the government.
During its argument, the government asked the district court to
impose the statutory maximum sentence of 120 months' imprisonment
because

of

Pérez's

"criminal

history,

his

history

of

[disciplinary] violations while incarcerated," and his possession
of a firearm "while on supervised release."

This unexpected

request drew an objection from defense counsel, and it prompted
the district court to postpone the sentencing until a later date.
In doing so, the district court specifically advised the parties
that it was contemplating "a departure going upward" or "an upward
variance" and was therefore continuing the proceedings to allow
the defendant time "to be prepared."
The district court reconvened on March 30, 2016.

At

that time, Pérez requested a below- or within-guidelines sentence,
and the government lowered its request from 120 months to 84
months.

The district court heard from Pérez and then imposed its

sentence.

It properly identified the offense conduct, correctly

calculated the guidelines sentencing range as 30 to 37 months, and
appropriately referenced the sentencing factors enumerated in 18
U.S.C. § 3553(a).
criminal

history,

It noted Pérez's personal background and
including

his

prior

felony

convictions

for

conspiracy to possess with intent to distribute cocaine and for

- 4 -

Case: 16-1392

Document: 00117156075

Page: 5

Date Filed: 05/17/2017

Entry ID: 6092831

aiding and abetting in the use of a firearm during the commission
of that crime.

The district court then explained that it would

vary upward, albeit not as much as the government requested, citing
the nature of the prior conviction and the relatively short
interval between Pérez's release and his reoffense.

It imposed a

sentence of 50 months' imprisonment, followed by three years of
supervised release.
Defense

counsel

promptly

objected

"to

the

grounds

expressed by the Court for an upward variance," arguing that the
sentence was "substantively unreasonable."

The court rejected

this argument, emphasizing that the defendant "engaged once again
in having a weapon" when he was "barely 22 months [into] a 36
month's [sic] sentence on supervised release" that followed a 97month term of imprisonment for the prior conviction.

This timely

appeal followed.
II.
On appeal, Pérez raises both procedural and substantive
challenges to the reasonableness of his sentence of 50 months'
imprisonment.

We address each category of challenges in turn.
A.

Pérez did not raise his procedural challenges in the
district court, so we review these challenges only for plain error.
United States v. Nieves–Mercado, 847 F.3d 37, 41 (1st Cir. 2017).
"Review for plain error entails four showings: (1) that an error

- 5 -

Case: 16-1392

Document: 00117156075

occurred

(2)

(3)

affected

(4)

seriously

which

was

the

Page: 6

clear

or

defendant's

impaired

the

Date Filed: 05/17/2017

obvious

and

substantial
fairness,

reputation of judicial proceedings."

which

rights,

integrity,

Entry ID: 6092831

not

only

but

also

or

public

United States v. Duarte, 246

F.3d 56, 60 (1st Cir. 2001).
Pérez first argues that the factors relied on by the
district court to justify the upward variance "were already covered
in [his] guideline range."

Pérez asserts that the district court

therefore double-counted his prior felony conviction.

According

to Pérez, that "prior conviction [wa]s duly taken into account by
the guidelines," as it resulted in three criminal history points.
It is true that the district court cited the prior conviction to
justify the upward variance, and it is true that Pérez received
three criminal history points for that conviction.

Yet the

guidelines sentencing range only took into account the fact of the
prior conviction and the duration of the resulting sentence.
U.S.S.G. § 4A1.1(a).

See

What the district court took into account

was the nature of the prior conviction and the similarity between
the criminal conduct at issue in the prior conviction and the
instant

offense.

Pérez

does

not

argue

that

the

guidelines

sentencing range accounted for those considerations, and we find
that the district court's reliance on them to justify the upward
variance was not obviously wrong.

See Nieves–Mercado, 847 F.3d at

43 (rejecting a claim of procedural unreasonableness where the

- 6 -

Case: 16-1392

Document: 00117156075

Page: 7

Date Filed: 05/17/2017

Entry ID: 6092831

district court "discussed not only the existence but also the
nature of [the defendant's] criminal history" and in particular
noted "similarities" between the prior criminal conduct and the
instant offense).
We likewise reject Pérez's second and similar argument
that

the

district

court

double-counted

the

fact

that

Pérez

committed the instant offense while serving a term of supervised
release.

To be sure, the guidelines sentencing range incorporated

two criminal history points because Pérez "committed the instant
offense

while

under

any

criminal

including . . . supervised release."

justice

sentence,

U.S.S.G. § 4A1.1(d).

The

district court noted, in explaining the upward variance, that Pérez
was less than two years into his three-year term of supervised
release when he committed the instant offense.

But the transcript

from the sentencing hearing makes clear that the court noted that
fact in service of a different point:

that Pérez recidivated

relatively soon after having served a lengthy sentence for his
prior conviction.
month

sentence

The court expressed concern that the prior 97yielded

such

minimal

deterrence

that

Pérez

reoffended within 22 months of his release from prison. That Pérez
happened to remain on supervised release at that time was beside
the district court's point.

Regardless of whether Pérez had

previously received a short term of supervision, a long term of
supervision, or no term of supervision at all, it was not plainly

- 7 -

Case: 16-1392

Document: 00117156075

Page: 8

Date Filed: 05/17/2017

Entry ID: 6092831

erroneous for the district court to have determined that Pérez
required additional deterrence through a longer custodial sentence
because, after spending over eight years in prison, Pérez made it
just 22 months before he was picked up for another felony offense.
Because Pérez has failed to convince us that the district
court obviously double-counted either factor in justifying the
upward variance, we reject on plain error review his claim that
the district court imposed a procedurally unreasonable sentence.
B.
That

leaves

Pérez's

substantively unreasonable.

argument

that

his

sentence

is

Pérez did raise this objection in the

district court, so we review the substantive reasonableness of his
sentence for abuse of discretion.
Acosta,

773

F.3d

298,

309

(1st

United States v. TrinidadCir.

2014).

In

assessing

substantive reasonableness, we "focus[] on the duration of the
sentence in light of the totality of the circumstances."

United

States v. Del Valle-Rodríguez, 761 F.3d 171, 176 (1st Cir. 2014).
"[A] plausible sentencing rationale and a defensible result" are
all that we require.

United States v. Narváez-Soto, 773 F.3d 282,

288 (quoting United States v. Martin, 520 F.3d 87, 96 (1st Cir.
2008)).
Pérez advances two claims of substantive error.

First,

he says, the district court erred "[b]y relying on already included
factors to further enhance [his] sentence."

- 8 -

"We have already

Case: 16-1392

Document: 00117156075

Page: 9

Date Filed: 05/17/2017

Entry ID: 6092831

rejected this contention in finding that the district court gave
reasons for its variance beyond those factored into the guidelines
sentencing range calculation," Nieves–Mercado, 847 F.3d at 44--in
this case, the nature of Pérez's criminal history, the similarity
between the prior and instant offenses, and the time between his
release and his reoffense.

Second, Pérez argues that the district

court failed to consider the totality of the circumstances, and
that its myopic focus on his criminal history caused the district
court to overlook individual characteristics warranting a lower
sentence.1

Although

the

upward

variance

in

this

case

was

significant, and by no means inevitable, we do not find that the
totality of the circumstances demand a different result.

The

district

but

court

weighed

the

evidence

presented

by

Pérez

ultimately determined that his criminal history tipped the scales
in favor of an above-guidelines sentence.

1

Mindful that "[i]n most

To the extent Pérez's "real complaint is not that the court
overlooked those factors but that it weighed those factors less
heavily than he would have liked," our precedent makes clear that
such "balancing is, within wide limits, a matter for the sentencing
court." United States v. Rivera-González, 776 F.3d 45, 50 (1st
Cir. 2015). The record reveals that the district court considered
the evidence adduced and arguments advanced by Pérez at
sentencing--including evidence and arguments regarding the
importance of his support to his family. We discern no plain error
by the district court in identifying the pertinent sentencing
factors and no abuse of the broad discretion afforded to the
district court in deciding how to weigh them. Furthermore, to the
extent Pérez argues that the district court erred by finding that
Pérez's wife "was doing all of the work" in raising their son, he
has not shown that this factual finding was obviously erroneous.
- 9 -

Case: 16-1392

Document: 00117156075

Page: 10

Date Filed: 05/17/2017

Entry ID: 6092831

cases, there is not a single appropriate sentence but, rather, a
universe

of

reasonable

sentences,"

United

States

v.

Rivera-

González, 776 F.3d 45, 52 (1st Cir. 2015), we hold that the
sentence imposed in this case falls within that universe.
III.
Finding neither procedural nor substantive error, we
affirm the judgment of the district court.

- 10 -