United States v. Rivera-Berrios
Opinion
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
,
In December of 2013, defendant-appellant Ezequiel Rivera-Berríos was convicted in a Puerto Rico court on one count of *23 aggravated illegal appropriation and one count of illegal possession of a firearm. The court sentenced him to two consecutive three-year terms of probation. 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 rounds of ammunition. They also discovered a ziplock bag containing three face masks, a black ski hat, and 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
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) III, generating a guideline sentencing range of 30 to 37 months.
See
USSG Ch. 5, Pt. A (Sentencing Table). The appellant objected to his placement in CHC III, but the district court overruled his objection and adopted all of the recommended guideline calculations. At the disposition hearing, the court weighed the factors limned in
II. ANALYSIS
As a general matter, we review the imposition of a sentence for abuse of discretion.
See
Gall
v.
United States
,
Judicial review of a challenged sentence typically entails "a two-step pavane."
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
*24
range.
See
A defendant's CHC is derived from his criminal history score.
See
id.
;
United States
v.
Sanchez
,
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.
See
USSG §§ 4A1.1, 4A1.2. A prior sentence of imprisonment exceeding one year and one month ordinarily requires the assessment of three points.
See
Here, the district court assessed three points for the revocation sentence of six years.
See
Despite its superficial appeal, the appellant's challenge lacks force. When imposing a sentence in a subsequent case, the sentencing 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 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
,
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."
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 of probation when 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
,
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-counting.
1
See
United States
v.
Nance
,
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 appropriation and illegal possession of a firearm). The fact that Puerto Rico authorities revoked the appellant's probation for the same firearms possession 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
,
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 post-revocation 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 in the instant case."
Wheeler
,
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 attributed three criminal history points to that sentence.
See
USSG § 4A1.1(a). 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
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. Our standard of review for unpreserved claims of substantive unreasonableness is "somewhat blurred."
United States
v.
Ruiz-Huertas
,
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
,
*27
United States
v.
Vargas-Dávila
,
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
,
The appellant demurs - but his demurrer is weak. He chiefly faults the court for undervaluing certain factors (such as his history of gainful employment and his acknowledgment of wrongdoing). 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
The appellant also faults the district 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."
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.
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
,
Reference
- Full Case Name
- UNITED STATES of America, Appellee, v. Ezequiel RIVERA-BERRÍOS, Defendant, Appellant.
- Cited By
- 16 cases
- Status
- Published