United States v. Díaz-Bermúdez
Opinion of the Court
Defendant-Appellant Diaz-Bermudez (“Diaz”) brings two challenges to the 108-month sentence entered by the district court after he pleaded guilty to one count of possessing a firearm in furtherance of a drug trafficking crime in violation of 18 U.S.C. § 924(c)(1)(A). After careful consideration, we affirm.
I. Background
Because this appeal follows a guilty plea, we derive the facts from the plea agreement, the change-of-plea colloquy, the unchallenged portions of the presen-tence investigation report (“PSR”), and the sentencing hearing transcript. United States v. Ocasio-Cancel, 727 F.3d 85, 88 (1st Cir. 2013). The resolution of this appeal does not require a detailed recitation of the facts. It will suffice to say that police officers found two handguns (one of which was fully loaded with a round in the chamber), three magazines, ammunition rounds, more than 700 small bags of crack cocaine, 75 small bags of powder cocaine, and drug paraphernalia in a vehicle in which Diaz was the sole passenger. Shortly after his arrest, Diaz admitted to police officers that the drugs and some of the paraphernalia belonged to him. Later, in his plea agreement, he also admitted that he knowingly and intentionally possessed the discovered firearms in furtherance of a drug trafficking crime.
Diaz was indicted for the firearm offense, 18 U.S.C. § 924(c)(1)(A), as well as
II. Analysis
A. Plea Withdrawal
Diaz first argues that, under Fed. R.Crim.P. 11(c)(5), he was entitled to withdraw his guilty plea after the district court rejected the 60-month sentence recommended by both parties in the plea agreement.
Diaz tries to rescue his argument by pointing out that his plea agreement was a hybrid Rule ll(c)(l)(A)/Rule 11(c)(1)(B) agreement. This is true — in addition to the 60-month recommended sentence under Rule 11(c)(1)(B), Diaz’s plea agreement required the government to move to dismiss the two drug distribution counts under Rule 11(c)(1)(A). And whereas a Rule 11(c)(1)(B) sentencing recommendation does not bind the court, the district court may only accept or reject the Rule 11(c)(1)(A) charge dismissal provisions of a
B. Sentencing Challenge
Diaz next challenges the reasonableness of his above-guidelines 108-month sentence. We normally review the reasonableness of a sentence for an abuse of discretion, United States v. Del Valle-Rodríguez, 761 F.3d 171, 176 (1st Cir. 2014), but Diaz failed to raise below any of his current objections. We therefore review for plain error. Medina-Villegas, 700 F.3d at 583. This requires Diaz to show “a reasonable probability that, but for the error, the district court would have imposed a different, more favorable sentence.” Id. (quoting United States v. Mangual-Garcia, 505 F.3d 1, 15 (1st Cir. 2007)) (internal quotation marks omitted).
In reviewing the reasonableness of a sentence, we first look for procedural errors, including “failing to consider appropriate sentencing factors, predicating a sentence on clearly erroneous facts, or neglecting to explain the rationale for a variant sentence adequately.” Del Valle-Rodríguez, 761 F.3d at 176. Our review then shifts to the substantive reasonableness of the sentence. Id.
1. Procedural Reasonableness
Diaz’s claimed procedural error is that the district court failed to consider the 18 U.S.C. § 3553(a) sentencing factors, and instead imposed the 108-month sentence based solely on its doubt about a statement he made in the PSR that his involvement in the gun crime was the product of ignorance. We disagree.
First, the district court did not plainly fail to consider the section 3553(a) factors. The court’s section 3553(a) analysis was admittedly brief, and an easy resolution of this issue is thwarted somewhat by a garbled sentencing transcript. After the court found that the PSR adequately applied the guidelines, the transcript shows that the sentencing judge said “[t]he Court has considered the other sentencing factors in 18 U.S. (e)(3.5) and (unintelligible).” It seems fair to infer from context and the reference to “other sentencing factors” that, the district court expressly cited section 3553(a) but that its statement was mis-transcribed. The district court’s statement that it considered the section 3553(a) factors “is entitled to some weight.” United States v. Vega-Salgado, 769 F.3d 100, 105 (1st Cir. 2014) (quoting United States v. Clogston, 662 F.3d 588, 590 (1st Cir. 2011)) (internal quotation marks omitted). Moreover, the district court’s review of Diaz’s criminal history and the' facts of his arrest — the court at one point corrected defense counsel on the location of the first gun — showed that it was familiar with the nature of the offense as well as Diaz’s characteristics and background. See Medina-Villegas, 700 F.3d at 583-84. And, “[t]o cinch the matter, [Diaz] has not identified any factors that make it likely that he would receive a different sentence on remand.” Id. at 584.
Second, the district court was permitted to consider the sincerity of Diaz’s explanation for his conduct, that “he did it out of ignorance.” Diaz himself placed his sincerity at issue. In his sentencing memorandum and at the hearing, Diaz argued
2. Substantive Reasonableness
Finding no procedural error, we turn to Diaz’s contention that his sentence is substantively unreasonable. He claims that the district court did not sufficiently justify a sentence 48 months above the guidelines sentence of 60 months in prison. U.S.S.G. § 2K2.4(b); 18 U.S.C. § 924(c)(1)(A)©; see Del Valle-Rodríguez, 761 F.3d at 176 (“Where ... a court imposes a sentence above the GSR, it must justify the upward variance.”). The hallmarks of a substantively reasonable sentence are “a plausible sentencing rationale and a defensible result.” United States v. Martin, 520 F.3d 87, 96 (1st Cir. 2008).
The primary reason the court gave for its sentence was Diaz’s lack of sincerity in attributing his involvement in the offense to ignorance. The sincerity of Diaz’s explanation for the offense was relevant to assessing the need for deterrence and his capacity for rehabilitation. See 18 U.S.C. § 3553(a)(2)(B)-(D); Martin, 520 F.3d at 94 (“The potential for rehabilitation also may comprise grist for the sentencing court’s mill.”). This reason alone may not have 'sufficed as a plausible rationale for such a steep variance, but the district court also reviewed Diaz’s criminal history and the offense characteristics in the context of evaluating Diaz’s sincerity. Specifically, the court observed that Diaz had been convicted under Puerto Rico law of possessing á firearm without a license and of committing an assault requiring medical attention. See U.S.S.G. § 2K2.4(b) cmt. n. 2(B) (“A departure may be warranted, for example, to reflect the seriousness of the defendant’s criminal history....”). The court further noted that Diaz was on probation for these offenses when he committed the firearm offense at issue here. On plain error review, these factors add up to a plausible rationale for a variant sentence.
The reasonableness of the relative magnitude of the 48-month upward variance— an 80 percent increase over the guidelines sentence of 60 months — is a closer question. Nonetheless, given the due deference we owe the district court, we cannot say that the ultimate result is indefensible on plain error review. United States v. Flores-Machicote, 706 F.3d 16, 25 (1st Cir. 2013) (“A sentence is not substantively unreasonable merely because the reviewing court would have sentenced the defendant differently.”). The offense conduct was serious — Diaz admitted to possessing two handguns along with more than 700 small bags of crack cocaine, 75 bags of powder cocaine, and the paraphernalia to prepare more drugs for distribution. He committed the current offense while serving probation for unlawfully possessing a firearm and committing assault, a circumstance which pointed toward the danger of recidivism. That Diaz chose to chalk his conduct up to ignorance magnified this danger. And while the guidelines sentence did not extend beyond the minimum sen
III. Conclusion
For the reasons stated above, we affirm the judgment of the district court.
So ordered.
. The relevant portion of Rule 11(c)(5) ("Rejecting a Plea Agreement") reads as follows:
If the court rejects a plea agreement containing provisions of the type specified in Rule 11(c)(1)(A) or (C), the court must do the following on the record and in open court (or, for good cause, in camera): ... (B) advise the defendant personally that the court is not required to follow the plea agreement and give the defendant an opportunity to withdraw the plea....
Fed.R.Crim.P. 11(c)(5).
. The three types of plea agreement, as described in Rule 11(c)(1), provide that the prosecutor will:
(A) not bring, or will move to dismiss, other charges;
(B) recommend, or agree not to oppose the defendant’s request, that a particular sentence or sentencing range is appropriate ... (such a recommendation or request does not bind the court); or
(C) agree that a specific sentence or sentencing range is the appropriate disposition of the case ... (such a recommendation or request binds the court once the court accepts the plea agreement).
Fed.R.Crim.P. 11(c)(1).
.The case law Diaz cites in support of his argument is equally inapplicable to his plea agreement: it addresses stipulated sentences under Rule 11(c)(1)(C), which the court may only accept or reject, and not non-binding recommendations under Rule 11(c)(1)(B). See, e.g., United States v. Self, 596 F.3d 245, 248-49 (5th Cir. 2010).
Reference
- Full Case Name
- United States v. Josué DÍAZ-BERMÚDEZ
- Cited By
- 9 cases
- Status
- Published