US v. Rivera-Berrio
Filing
OPINION issued by Juan R. Torruella, Appellate Judge; Bruce M. Selya, Appellate Judge and David J. Barron, Appellate Judge. Published. [17-1212]
Case: 17-1212
Document: 00117330888
Page: 1
Date Filed: 08/24/2018
Entry ID: 6193453
United States Court of Appeals
For the First Circuit
No. 17-1212
UNITED STATES OF AMERICA,
Appellee,
v.
EZEQUIEL RIVERA-BERRÍOS,
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, Selya, and Barron,
Circuit Judges.
Andrew S. Crouch for appellant.
Thomas F. Klumper, Assistant United States Attorney, Senior
Appellate Counsel, 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 24, 2018
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SELYA, Circuit Judge.
Date Filed: 08/24/2018
Entry ID: 6193453
This appeal presents a question
of first impression in this circuit: may a sentencing court assess
criminal history points for a prison sentence imposed following
revocation of probation when the revocation-triggering conduct
also constitutes the gravamen of the federal offense of conviction?
Concluding, as we do, that the court below correctly factored the
revocation sentence into the appellant's criminal history score
and proceeded to fashion a substantively reasonable sentence for
the offense of conviction, we affirm.
I. BACKGROUND
Because this appeal follows in the wake of a guilty plea,
we take the facts from the change-of-plea colloquy, the uncontested
portions of the presentence investigation report (PSI Report), and
the transcript of the sentencing hearing.
See United States v.
Rentas-Muñiz, 887 F.3d 1, 2 (1st Cir. 2018); United States v.
Blodgett, 872 F.3d 66, 68 (1st Cir. 2017).
In
December
of
2013,
defendant-appellant
Ezequiel
Rivera-Berríos was convicted in a Puerto Rico court on one count
of aggravated illegal appropriation and one count of illegal
possession
of
a
firearm.
The
court
consecutive three-year terms of probation.
sentenced
him
to
two
We fast-forward to May
of 2016, when local police officers conducted a search of the
appellant's residence in Cataño, Puerto Rico. They found a massive
cache of weapons, including an AK-47-type rifle loaded with 74
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rounds
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of
ammunition.
containing
three
Page: 3
They
face
Date Filed: 08/24/2018
also
masks,
a
discovered
black
ski
Entry ID: 6193453
a
ziplock
hat,
and
bag
other
paraphernalia often associated with criminal activity.
A federal grand jury sitting in the district of Puerto
Rico subsequently charged the appellant with being a felon in
possession of firearms and ammunition.
See 18 U.S.C. § 922(g)(1).
After initially maintaining his innocence, the appellant pleaded
guilty on September 27, 2016.
About five weeks later — subsequent
to the appellant's guilty plea but before his federal sentencing
— a Puerto Rico court revoked the appellant's terms of probation
for the 2013 offenses and sentenced him instead to two consecutive
three-year prison terms (the revocation sentence).
record
contains
very
few
details
concerning
Although the
the
revocation
proceeding, the parties agree that the revocation was triggered,
at least in part, by the same unlawful weapons possession that
formed the basis of the appellant's federal conviction under
section 922(g)(1).
In the PSI Report, the probation office recommended that
the appellant be held responsible for a total offense level of 17
and
slotted
him
into
criminal
history
category
(CHC)
generating a guideline sentencing range of 30 to 37 months.
USSG Ch. 5, Pt. A (Sentencing Table).
III,
See
The appellant objected to
his placement in CHC III, but the district court overruled his
objection
and
adopted
all
of
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the
recommended
guideline
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calculations.
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Entry ID: 6193453
At the disposition hearing, the court weighed the
factors limned in 18 U.S.C. § 3553(a) and imposed an upwardly
variant
sentence
—
48
months'
imprisonment
consecutively to the revocation sentence.
—
to
be
served
This timely appeal
followed.
II. ANALYSIS
As a general matter, we review the imposition of a
sentence for abuse of discretion.
See Gall v. United States, 552
U.S. 38, 51 (2007); United States v. Martin, 520 F.3d 87, 92 (1st
Cir. 2008).
This process "is characterized by a frank recognition
of the substantial discretion vested in a sentencing court."
United States v. Flores-Machicote, 706 F.3d 16, 20 (1st Cir. 2013).
Judicial
review
of
entails "a two-step pavane."
a
Id.
challenged
sentence
typically
At the first step, we consider
claims of procedural error, which include "failing to calculate
(or improperly calculating) the Guidelines range, treating the
Guidelines as mandatory, failing to consider the § 3553(a) factors,
selecting a sentence based on clearly erroneous facts, or failing
to
adequately
explain
the
chosen
sentence
—
including
explanation for any deviation from the Guidelines range."
an
Gall,
552 U.S. at 51. If this step is successfully navigated, we proceed
to
the
next
step
reasonableness.
and
appraise
See id.
the
sentence
for
substantive
This latter inquiry necessitates an
evaluation of "the totality of the circumstances."
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Id.
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A
We begin with the appellant's claim of procedural error.
Understanding the anatomy of a sentence helps to lend perspective.
A sentencing court's first task is to establish the
proper guideline sentencing range.
F.3d at 91.
See id. at 49; Martin, 520
Two factors combine to produce this range in a
particular case:
the defendant's total offense level and his CHC.
See United States v. Pinkham, 896 F.3d 133, 139 (1st Cir. 2018).
The
appellant
does
not
quarrel
with
the
district
court's
calculation of his total offense level but, rather, trains his
fire on the court's CHC determination.
A defendant's CHC is derived from his criminal history
score.
See id.; United States v. Sanchez, 354 F.3d 70, 81 (1st
Cir. 2004).
By way of example, a defendant who has a criminal
history score of four to six is placed in CHC III, whereas a
defendant who has a score of two or three is placed in CHC II.
See USSG Ch. 5, Pt. A (Sentencing Table).
The lower a defendant's
CHC, the lower his guideline sentencing range is apt to be.
See
Pinkham, 896 F.3d at 139.
To arrive at a defendant's criminal history score, the
sentencing
court
must
first
review
any
sentences
previously
imposed on the defendant and determine whether to add zero, one,
two, or three points for each such sentence.
4A1.2.
See USSG §§4A1.1,
A prior sentence of imprisonment exceeding one year and
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one month ordinarily requires the assessment of three points.
id. §4A1.1(a).
See
By contrast, a sentence of probation or of fewer
than sixty days' imprisonment ordinarily adds one point to the
defendant's score.
See id. §4A1.1(c).
Relatedly, the guidelines
require that two more points be added if the defendant committed
the offense of conviction (that is, the offense for which he is
being
sentenced)
"while
under
any
criminal
justice
sentence,
including probation, parole, supervised release, imprisonment,
work release, or escape status."
Id. §4A1.1(d).
Here, the district court assessed three points for the
revocation sentence of six years.
See id. §4A1.1(a).
It added
two more points because the appellant committed the offense of
conviction while on probation.
See id. §4A1.1(d).
The appellant
challenges the first of these assessments, insisting that only one
point
should
have
been
awarded
since
the
Puerto
originally imposed a straight probationary sentence.
preserved
claim
of
error
implicates
the
Rico
court
Because this
interpretation
and
application of the guidelines, it engenders de novo review.
See
United States v. McCormick, 773 F.3d 357, 359 (1st Cir. 2014).
Despite
its
challenge lacks force.
case,
the
sentencing
superficial
appeal,
the
appellant's
When imposing a sentence in a subsequent
court
must
"add
the
original
term
of
imprisonment to any term of imprisonment imposed upon revocation
[of probation]" in tabulating the defendant's criminal history
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score.
USSG §4A1.2(k)(1).
Where, as here, "the language of the
[applicable] guideline is plain and unambiguous, that is the end
of the matter."
United States v. Suárez-González, 760 F.3d 96, 99
(1st Cir. 2014).
Under the luminously clear language of section
4A1.2(k)(1), any term of imprisonment imposed upon revocation of
probation must be added to the original probationary term for the
purpose of determining the defendant's criminal history score.
See United States v. Van Anh, 523 F.3d 43, 61 (1st Cir. 2008).
The Sentencing Commission's commentary fully supports
this construction.
It admonishes a sentencing court not to "count
the original sentence and the resentence after revocation as
separate sentences."
USSG §4A1.2, cmt. n.11.
Instead, the court
is directed to add "the sentence given upon revocation . . . to
the original sentence of imprisonment, if any," so that "the total
should be counted as if it were one sentence."
Id.
We treat such
commentary as authoritative unless it conflicts with federal law,
see Stinson v. United States, 508 U.S. 36, 38 (1993); United States
v. Cates, 897 F.3d 349, __ (1st Cir. 2018) [No. 17-1423, slip op.
at 7], and the appellant has not identified any such conflict with
respect to the quoted commentary.
Given the explicit language of the applicable sentencing
guideline and the reinforcement supplied by the commentary, we
conclude that the court below was correct in looking to the term
of
imprisonment
imposed
upon
revocation
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of
probation
when
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computing the appellant's criminal history score for the offense
of conviction.
Because that sentence exceeded one year and one
month — indeed, it aggregated six years — the court appropriately
attributed
three
criminal
history
points
to
it.
See
USSG
§4A1.1(a).
The appellant resists this straightforward conclusion.
He argues that the district court should not have factored the
revocation sentence into his criminal history score because the
conduct that triggered the revocation was essentially the same
conduct that formed the basis for the offense of conviction.
He
predicates this argument on the theory that a court may not count
a prior sentence toward a defendant's criminal history score if
that prior sentence was imposed for conduct that is "part of the
instant offense."
USSG §4A1.2(a)(1); see United States v. Cyr,
337 F.3d 96, 99 n.1 (1st Cir. 2003).
In the appellant's view, the
district court impermissibly double-counted the conduct underlying
his 2016 felon-in-possession offense by factoring that conduct
into both his total offense level and his criminal history score.
We do not agree.
We acknowledge, of course, that the rule forbidding a
court from counting a prior sentence toward a defendant's criminal
history score if that prior sentence was imposed for conduct that
is part of the offense of conviction is designed to avoid double-
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counting.1
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See United States v. Nance, 611 F.3d 409, 413 (7th Cir.
2010); see also USSG §4A1.2, cmt. n.1 (excluding sentences imposed
for conduct qualifying as relevant conduct under USSG §1B1.3 from
criminal history score).
But that is not what happened here.
The
salient distinction arises out of "the relation-back aspect of the
law."
United States v. Dozier, 555 F.3d 1136, 1140 (10th Cir.
2009).
As we explained in an analogous context, a post-revocation
sanction "is treated as part of the penalty for the initial
offense."
United States v. McInnis, 429 F.3d 1, 5 (1st Cir. 2005)
(citing Johnson v. United States, 529 U.S. 694, 699-700 (2000)).
In other words, revocation of probation is "a modification of the
terms of the original sentence," which "implicates solely the
punishment initially imposed for the offense conduct underlying
that sentence."
United States v. Coast, 602 F.3d 1222, 1223 (11th
Cir. 2010) (quoting United States v. Woods, 127 F.3d 990, 992-93
(11th Cir. 1997) (per curiam)).
Even when — as in this case — the
revocation conduct itself constitutes a crime, "the sanction is
1
We hasten to add that double-counting is not entirely
forbidden in the sentencing context — a context in which "double
counting is a phenomenon that is less sinister than the name
implies." United States v. Zapata, 1 F.3d 46, 47 (1st Cir. 1993).
Such a conclusion flows logically from a recognition of the fact
that sentencing factors "do not come in hermetically sealed
packages, neatly wrapped and segregated one from another." United
States v. Lilly, 13 F.3d 15, 19 (1st Cir. 1994). Thus, multiple
sentencing factors may quite properly "draw upon the same nucleus
of operative facts while nonetheless responding to discrete
concerns." Id.
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independent of — and potentially in addition to — regular criminal
prosecution for [that] crime."
United States v. Brennick, 337
F.3d 107, 109 (1st Cir. 2003) (per curiam).
These principles are dispositive here.
The revocation
of the appellant's probation was, at bottom, a penalty for the
conduct underlying the 2013 sentence (the local-law crimes of
aggravated
illegal
firearm).
The fact that Puerto Rico authorities revoked the
appellant's
appropriation
probation
for
the
and
same
illegal
firearms
possession
possession
of
a
that
triggered his federal conviction under section 922(g)(1) "does
not, for criminal history purposes, sever the conduct from the
original . . . sentence attributable to his [2013 conviction]."
Dozier, 555 F.3d at 1140 (quoting United States v. Wheeler, 330
F.3d 407, 412 (6th Cir. 2003)).
We hold, therefore, that a
sentencing court may assess criminal history points for a prison
sentence
imposed
notwithstanding
that
following
the
revocation
of
revocation-triggering
probation,
conduct
also
constitutes the gravamen of the federal offense of conviction.
Even though this is a matter of first impression in this
circuit, we do not write on a pristine page.
No fewer than four
other courts of appeals have concluded — as do we — that postrevocation penalties are "part of the sentence for the original
crime of conviction, even where the facts underlying the revocation
are precisely the same as those providing the basis for conviction
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in the instant case."
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Wheeler, 330 F.3d at 412; accord United
States v. Heath, 624 F.3d 884, 888 (8th Cir. 2010); Dozier, 555
F.3d at 1140; United States v. Franklin, 148 F.3d 451, 461-62 (5th
Cir. 1998).
That ends this aspect of the matter.
Because the
incarcerative terms imposed upon the revocation of the appellant's
probation are treated as part of his 2013 sentence, the court below
properly
sentence.
attributed
three
criminal
See USSG §4A1.1(a).
history
points
to
that
And since it is undisputed that
the appellant was on probation at the time he committed the instant
offense, the district court's assessment of the two additional
points in computing his criminal history score was also correct.
See id. §4A1.1(d).
It follows inexorably that neither the court's
assessment of a total of five criminal history points nor its
placement of the appellant in CHC III can seriously be questioned.
B
This brings us to the appellant's plaint — voiced for
the first time on appeal — that his upwardly variant 48-month
sentence was substantively unreasonable.
for
unpreserved
claims
of
substantive
Our standard of review
unreasonableness
is
"somewhat blurred."
United States v. Ruiz-Huertas, 792 F.3d 223,
228 (1st Cir. 2015).
No attempt at clarification is needed here;
whatever the standard, the appellant's plaint is unavailing.
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Appellate review for substantive reasonableness "focuses
on the duration of the sentence in light of the totality of the
circumstances."
United States v. Vega-Salgado, 769 F.3d 100, 105
(1st Cir. 2014) (quoting United States v. Del Valle-Rodríguez, 761
F.3d 171, 176 (1st Cir. 2014)).
To pass muster, a sentence must
be "supported by a 'plausible sentencing rationale' and achieve[]
a 'defensible result.'"
United States v. Daoust, 888 F.3d 571,
577 (1st Cir. 2018) (quoting Martin, 520 F.3d at 96).
We have
emphasized that "there can be a wide universe of reasonable
sentences in any single case."
Id.; see United States v. Walker,
665 F.3d 212, 234 (1st Cir. 2011).
As long as the sentence is
"within the universe of acceptable outcomes," we must uphold it.
United States v. Vargas-Dávila, 649 F.3d 129, 132 (1st Cir. 2011).
The fact that a sentence exceeds the advisory guideline range is
not dispositive, but "the greater the extent of a variance, 'the
more compelling the sentencing court's justification must be.'"
United States v. de Jesús, 831 F.3d 39, 43 (1st Cir. 2016) (quoting
Del Valle-Rodríguez, 761 F.3d at 177).
When
viewed
against
this
backdrop,
the
appellant's
sentence withstands scrutiny. After stating that it had considered
the relevant section 3553(a) factors — a statement that is entitled
to "some weight," United States v. Rodríguez-Adorno, 852 F.3d 168,
176 (1st Cir.), cert. denied, 138 S. Ct. 163 (2017) — the district
court explained why the case at hand was not a run-of-the-mill
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felon-in-possession case.
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The court noted that the appellant,
while serving a probationary term, possessed a massive cache of
weapons and ammunition, three face masks, a black ski hat, and
other paraphernalia indicative of an intent to commit other crimes.
Mindful of these striking facts, the court reasonably concluded,
consistent with section 3553(a), that an above-the-range sentence
was
necessary
to
reflect
the
crime's
"seriousness,"
"promote
respect for the law," safeguard the public from future mischief at
the hands of the appellant, and further the goals of "deterrence
and
punishment."
Weighing
these
considerations,
the
court
determined that a 48-month term of immurement was sufficient — but
not greater than necessary — to serve the ends of justice.
The appellant demurs — but his demurrer is weak.
He
chiefly faults the court for undervaluing certain factors (such as
his
history
wrongdoing).
of
gainful
employment
and
his
acknowledgment
of
But the appellant's argument overlooks that the
choice as to which sentencing factor or factors should be stressed
in any specific case is largely a matter for the sentencing court.
See id.
After all, a sentencing court is not required to "afford
each of the section 3553(a) factors equal prominence."
States v. Dixon, 449 F.3d 194, 205 (1st Cir. 2006).
United
Rather, the
court has broad discretion in determining how best to weigh those
factors.
See de Jesús, 831 F.3d at 44.
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In this instance, the
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sentencing
court
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acted
well
within
the
encincture
appellant
also
faults
the
district
Entry ID: 6193453
of
that
discretion.
The
court
for
ignoring the parties' joint recommendation that the court impose
a within-guidelines sentence — a sentence that would not have
exceeded 37 months.
We agree that when the prosecution and the
defense agree upon a sentencing recommendation, the sentencing
court should pay careful attention to that recommendation. Careful
attention, though, is not to be confused with blind allegiance.
In the end, judicial review of a sentence focuses "on the sentence
actually imposed, not on the relative merit of that sentence as
contrasted with a different sentence mutually agreed to by the
parties."
Id. at 43.
Here, the decisive consideration is that
the 48-month sentence imposed by the court below falls within the
wide universe of reasonable sentences.
To say more would be to paint the lily.
In this case,
the district court articulated an entirely plausible rationale for
the sentence imposed and achieved a readily defensible result.
The challenged sentence is, therefore, substantively reasonable.
III. CONCLUSION
We need go no further. For the reasons elucidated above,
the sentence is
Affirmed.
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