United States v. Mangual-Rosado
Opinion
Victor M. Mangual-Rosado ("Mangual") pleaded guilty to one count of possessing a firearm while being an unlawful user of a controlled substance. He now appeals his sentence of 30 months' imprisonment on the grounds that it was procedurally and substantively unreasonable. For the reasons that follow, we affirm.
I.
On November 2, 2016, Mangual was indicted in the District of Puerto Rico for possession of a firearm and ammunition by an unlawful user of a controlled substance in violation of
II.
The government argues that the appeal waiver bars Mangual from appealing his sentence because the District Court imposed a sentence "within the bottom to middle of the applicable guideline range[,]" and the plea agreement's waiver of appeal contemplated a sentence "in accordance with the terms and conditions set forth in the Sentence Recommendation provisions of this Plea Agreement." To this point, the government notes that the Sentence Recommendation provision of the plea agreement stated "that [the] defendant may request a sentence of imprisonment at the bottom of the applicable Guidelines range and that the Government may request a sentence of imprisonment up to the middle of the applicable Guidelines range."
The sentence did fall within the bottom to middle of the sentencing guidelines range on which the District Court relied. The record shows, however, that the District Court did not use the same guidelines range that the parties used in making their sentencing recommendations in the plea agreement. Nevertheless, Mangual does not argue in his opening brief that the appeal waiver does not bar his appeal *110 here. Nor, for that matter, does Mangual's argument refer to the appeal waiver at all. In fact, even though the government contends in its brief on appeal that the waiver to which Mangual agreed does bar his appeal of the sentence, Mangual also did not file a reply brief.
These failures are quite problematic for Mangual. We have made clear that "[w]here ... the defendant simply ignores the waiver and seeks to argue the appeal as if no waiver ever had been executed, he forfeits any right to contend either that the waiver should not be enforced or that it does not apply."
United States
v.
Miliano
,
But, we need not rely on the appeal waiver to dispense with Mangual's appeal. Even if we do consider the merits of his challenges to the sentence, those challenges fail.
III.
We begin with Mangual's four procedural challenges to the reasonableness of his sentence. As Mangual concedes that he did not raise any of these challenges below, our review is only for plain error.
United States
v.
Arsenault
,
Mangual's first procedural challenge is that the District Court relied on clearly erroneous facts in calculating his base offense level ("BOL") per section 2K2.1(a)(4)(B) of the U.S. Sentencing Guidelines Manual, which provides for a BOL of 20 for an offense involving possession of a "semiautomatic firearm that is capable of accepting a large capacity magazine" by a prohibited person, in this case a drug user. U.S.S.G. § 2K2.1(a)(4)(B). But, the presentence report ("PSR") contains the probation officer's finding that "the firearm in this case was a semiautomatic firearm (Bushmaster Rifle, Model Carbon- 15 Pistol, Caliber 5.56, Serial Number D04556) that is capable of accepting a large capacity magazine and hence, among the evidence seized in this case there is a high capacity magazine (One 5.56x45 PMAG rifle magazine with capacity for 30 rounds)." Nor does Mangual point to any evidence in the record that would call into question the District Court's finding that the rifle he was found to possess while being an unlawful drug user was a semiautomatic firearm that was capable of receiving a large-capacity magazine. We thus see no basis for finding clear error here.
United States
v.
Cox
,
Mangual's next procedural challenge concerns the District Court's weighing of the
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We also reject Mangual's assertion that the District Court committed procedural error by not adequately explaining its sentencing rationale. The explanation required by § 3553(c)"need [not] be precise to the point of pedantry."
United States
v.
Dávila-González
,
Mangual's final procedural challenge is that the District Court reversibly erred by failing to elicit objections to the sentence after it was announced. Mangual relies for this argument on an Eleventh Circuit case that requires a district court, after imposing a sentence, to give the parties an opportunity to object to the court's findings of fact and conclusions of law.
United States
v.
Jones
,
We turn then to Mangual's challenge to the substantive reasonableness of the sentence. Mangual asserts that the District Court's sentence was substantively unreasonable because the District Court imposed too harsh a sentence given that the record shows, in his view, that he was merely "in the wrong place at the wrong time."
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"But the fact '[t]hat the court chose to attach less significance to certain mitigating circumstances than [Mangual] thinks they deserved does not make his sentence substantively unreasonable.' "
United States
v.
Milán-Rodríguez
,
IV.
For the foregoing reasons, the District Court's sentence is affirmed .
Mangual does also argue that his sentence was substantively unreasonable because of the alleged procedural errors. But, given our analysis of the merits of those procedural errors, this challenge necessarily fails.
Reference
- Full Case Name
- UNITED STATES of America, Appellee, v. Victor M. MANGUAL-ROSADO, Defendant, Appellant.
- Cited By
- 5 cases
- Status
- Published