United States v. Benítez-BeltráN
Opinion of the Court
Luis Daniel Benítez-Beltrán ("Benítez") appeals the 120-month prison sentence that he received after pleading guilty to being, in violation of
I.
During the execution of a search warrant at Benítez's residence in 2013, Puerto Rico police agents found a loaded revolver hidden behind the drawer of a nightstand. The following day, the federal government charged Benítez, who is a convicted felon, with one count of being a prohibited person in possession of a firearm, in violation of
In November of 2014, Benítez pleaded guilty to this count pursuant to a plea agreement.
A probation officer prepared a presentence report ("PSR") based on the November 2016 edition of the Sentencing Guidelines. The PSR determined that § 2K2.1(a)(4) of the Guidelines applied. That guideline establishes the base offense level that applies to a defendant convicted of unlawful possession of a firearm if the defendant committed that offense after having been convicted of a felony that qualifies as a "crime of violence." Applying that guideline, the PSR determined that Benítez's base offense level was twenty, when, in the absence of that guideline's application, his base offense level would have been fourteen. See U.S. Sentencing Guidelines Manual § 2K2.1(a)(6) (2016).
The PSR concluded that Benítez had a prior conviction that qualified as a "crime of violence" due to his 1998 conviction for attempted murder under Puerto Rico law. The PSR stated that this prior offense so qualified under what is known as the "force clause" of the Sentencing Guidelines' definition of a "crime of violence."
The PSR also applied a four-level enhancement under § 2K2.1(b)(4)(B) to Benítez's offense level because the firearm involved in Benítez's § 922(g) offense had an obliterated serial number. Finally, the PSR reduced Benítez's offense level by three levels pursuant to § 3E1.1 due to his acceptance of responsibility.
In sum, the PSR calculated Benítez's total offense level to be twenty-one. Because the PSR assigned Benítez a criminal history category of V, the PSR determined that Benítez's advisory range for his term of imprisonment under the Guidelines was seventy to eighty-seven months.
After hearing from the parties, the District Court adopted the PSR's Guidelines calculation. In doing so, the District Court concluded that Benítez had "only one prior conviction" for a "crime of violence," namely his 1998 attempted murder conviction under Puerto Rico law. The District Court then sentenced Benítez to the statutory maximum prison term of 120 months, see
II.
Benítez first challenges the District Court's conclusion that he had a prior conviction for a "crime of violence" under § 2K2.1(a)(4). Our review of whether Benítez's prior conviction for attempted murder under Puerto Rico law qualifies as a "crime of violence" under the Guidelines is *466de novo. See United States v. Steed,
A.
The term "crime of violence" in § 2K2.1(a)(4) has the same meaning as it has in the § 4B1.2 career-offender guideline. U.S. Sentencing Guidelines Manual § 2K2.1, cmt. n.1 (2016). Section 4B1.2(a) defines a "crime of violence" to be any offense punishable by more than one year of imprisonment that either "has as an element the use, attempted use, or threatened use of physical force against the person of another" (the so-called force clause) or is one of several enumerated crimes, including "murder."
Benítez contends that his prior conviction for attempted murder under Puerto Rico law does not qualify as a "crime of violence." He does so on the ground that this offense, as defined at the time of his conviction, neither falls within § 4B1.2(a)'s force clause nor matches one of the offenses enumerated in that guideline's definition of a "crime of violence."
We need not address Benítez's argument concerning the force clause. As we explain, his attempted murder conviction is for an offense that matches one of the guideline definition's enumerated offenses. See United States v. Ball,
We use a "categorical approach" to determine whether the offense for which a defendant was previously convicted matches an expressly enumerated offense under § 4B1.2(a). United States v. Castro-Vazquez,
To begin our comparative analysis of the elements of Benítez's offense of attempted murder under Puerto Rico law and the generic version of that offense, we set to one side the fact that his prior conviction was for attempted murder rather than simply "murder." That way, we may first focus on the way that Puerto Rico law defined the offense of "murder" at the time of his conviction, so that we may determine whether that definition makes that offense of "murder" a match with one of the enumerated offenses in § 4B1.2(a).
B.
As we have noted, § 4B1.2(a) does list "murder" among the expressly enumerated offenses that qualify as a "crime of violence." So, we must determine whether the generic version of that offense matches the way that Puerto Rico defined that offense when Benítez was convicted of attempting to commit that crime. If the generic version of "murder" is not such a match, then Benítez's conviction for attempted murder obviously does not match an enumerated offense.
The parties agree that, at the time of Benítez's conviction for attempted murder, Puerto Rico defined "murder" as "the killing of a human being with malice aforethought." Pueblo v. Lucret Quiñones,
We, however, do not agree. Benítez bases his assertion on the surprising contention that the mens rea of "purpose" and the mens rea of "knowledge" are less strict than the mens rea of "recklessness" and the mens rea of "depraved indifference." But Benítez offers no authority to support that contention, and there is good reason to think that the opposite would be the case. Cf. Model Penal Code § 2.02(5) ("When recklessness suffices to establish an element, such element also is established if a person acts purposely or knowingly.").
Nor has Benítez persuasively identified any case in which Puerto Rico applied its "murder" statute to encompass more conduct than the generic version of the offense, even accepting his description of the mens rea for "murder" under Puerto Rico law at the time of his conviction and the mens rea for the generic version of the offense. Under the categorical approach, however, there must be a "realistic probability" that Puerto Rico would have applied its "murder" statute at the relevant time to encompass conduct that the generic definition of "murder" does not criminalize in order for us to conclude that the Puerto Rico offense is broader. Moncrieffe v. Holder,
Accordingly, we reject Benítez's contention that the Puerto Rico definition of "murder" encompassed less conduct than the generic offense of "murder."
C.
In pressing this argument, Benítez contends that there is no match between the offense for which he was convicted and an enumerated offense under the Guidelines' definition of a "crime of violence" because, at the time of his conviction, Puerto Rico law defined "attempt" to encompass more conduct than the generic definition of "attempt" does. There is no serious question that "attempting to commit" a "crime of violence" is itself a "crime of violence."
*468U.S. Sentencing Guidelines Manual § 4B1.2, cmt. n.1 (2016); see also United States v. DeLuca,
The parties agree that, at the time of Benítez's conviction for attempted murder, Puerto Rico law provided that an "attempt" exists "when the person commits acts or makes omissions unequivocally directed to the execution of an offense, which is not consummated through circumstances extraneous to his will." Their dispute therefore concerns whether that Puerto Rico law definition of "attempt" matches the generic definition of "attempt."
Benítez contends that there is no such match. He relies on the way that "attempt" has been defined as a matter of federal criminal law to define the generic definition of "attempt." Specifically, Benítez contends that, under the federal definition of "attempt"-and thus, in his view, under the generic definition-the intent to commit both the underlying inchoate offense and the commission of "an overt act constituting a substantial step toward the commission of the offense" are required. Benítez then asserts that "attempt" under Puerto Rico law encompassed more conduct than this federal definition because it defined an "attempt" to encompass "any act or omission"-as opposed to "a substantial step"-including "mere preparation or slight acts."
In making this assertion, however, Benítez fails to offer any explanation as to why an act or omission that is "unequivocally directed to the execution of an offense" would not be considered a "substantial step" under the generic version of "attempt." And Benítez's failure is conspicuous given that he concedes that Puerto Rico law made that element of unequivocalness an element of "attempt." Nor does such an explanation occur to us. As we mentioned, Benítez defines the generic version of "attempt" according to the law of federal "attempt." But, "[i]n this circuit, as in a number of others, the court has taken the Model Penal Code as its guide" in defining the federal law of "attempt." United States v. Doyon,
Finally, we note, as we did in addressing his argument about "murder," that Benítez *469bears the burden of proving that there is a realistic probability that Puerto Rico's definition of his prior crime applies to more conduct than does the generic definition of that crime. But, as was the case with respect to Benítez's assertions about the relative breadth of conduct encompassed by Puerto Rico's definition of "murder," Benítez has not pointed to any Puerto Rico case (or even described a hypothetical case) that shows that Puerto Rico's definition of "attempt" at the time of his conviction for attempted murder applied more broadly than does the generic definition of "attempt."
Thus, for these reasons, we conclude that Benítez has not shown that the District Court erred in sentencing him by classifying his 1998 conviction for attempted murder under Puerto Rico law as an enumerated "crime of violence." Accordingly, we reject this first ground for challenging his sentence.
III.
Wholly apart from the "crime of violence" issue, Benítez also challenges his 120-month prison sentence as procedurally unsound and substantively unreasonable. "We review criminal sentences imposed under the advisory guidelines regime for abuse of discretion. Within this rubric, we assay the district court's factfinding for clear error and afford de novo consideration to its interpretation and application of the sentencing guidelines." United States v. Flores-Machicote,
We begin with Benítez's procedural challenges to his sentence. We then turn to his substantive challenge.
A.
Benítez contends that the District Court committed procedural errors in sentencing him to the statutory maximum of 120 months of imprisonment by (1) considering a prior sentence that he received for a separate Puerto Rico law conviction, (2) considering charges that were then pending against him in a separate case under federal law, and (3) failing to explain the basis for the upward variance from his advisory sentencing range under the Guidelines. None of these contentions has merit.
1.
Although Benítez asserts that the District Court impermissibly considered the sentence that he had recently received for aggravated robbery under Puerto Rico law in imposing his sentence for his federal conviction, Benítez does not show that the District Court actually did so. He instead merely points out that the government"highlighted Mr. Benítez's state court case and its lengthy sentence" and that the District Court "made mention" of that case at the sentencing hearing. Because Benítez neither explains how the District Court relied on the sentence that he received for aggravated robbery to justify the 120-month prison sentence nor develops an argument as to why any such reliance would have been impermissible, this aspect of his procedural challenge fails. See United States v. Zannino,
2.
Benítez also contends that, in sentencing him, the District Court impermissibly considered a separate federal criminal case that was then pending against him in which he was charged with carjacking, robbery, and using a firearm in relation to a crime of violence, in violation of
The District Court expressly stated at the sentencing hearing, however, that it would not consider those then-pending charges in its sentencing decision "in as much [as] he is presumed innocent and he is still facing trial and if convicted that will be for [the other judge] to determine and assess what is the punishment for that offense." Thus, the District Court did not purport to be basing his federal sentence on those pending charges.
To be sure, Benítez does point out that the District Court later in the hearing went on to refer to his arrest for carjacking and related offenses while describing the overall pattern of arrests and convictions in Benítez's criminal history. But, while we have repeatedly expressed our concern about relying on a pattern of prior arrests in the absence of proof by a preponderance of the evidence that the alleged conduct underlying those arrests occurred, see United States v. Rondón-García,
3.
Benítez's final procedural challenge is that the District Court erred in sentencing him by failing to justify adequately its decision to vary upward from his advisory sentencing range. Benítez argues that, even though that range accounted for his criminal history, the District Court nevertheless relied on that very same history in varying upwards from the range, which he says was an error under United States v. Ofray-Campos,
But, Benítez's advisory sentencing range did not necessarily account for the fact that, as the District Court found, "the chances of recidivism are extremely high" here in light of the District Court's finding that Benítez was engaging in crimes involving "the continued use of weapons, the repeated engagement in violent actions against individuals" with little to no off time between convictions and sentences. In this regard, the District Court explained that the two prior lengthy prison sentences that Benítez had received-a sentence of nine years of imprisonment for attempted murder and related weapons law violations in 1998 and a sentence of eighteen years of imprisonment for robbery and related weapons law violations in 2003-"did not serve the purpose of deterrence." See United States v. Thompson,
In addition, we have explained that "the incidence of particular crimes in the relevant community appropriately informs and contextualizes the relevant need for deterrence." Flores-Machicote,
Benítez does assert that the District Court erred by not explicitly addressing some mitigating factors that Benítez had put forth, such as his young age when he committed his previous crimes, "the birth of his first grandchild, the death of his brother, or his relationship with his mother." But, "a sentencing court is not required to address frontally every argument advanced by the parties." United States v. Turbides-Leonardo,
Nor do we find persuasive Benítez's related contention that the District Court erred by impermissibly "turn[ing] some of the mitigation into a reason for a statutory maximum sentence." Benítez points to the District Court's comment that he "has not been able to refrain himself from engaging in illegal conduct" despite the fact that he has "good examples from brothers and family members" and is not "a drug user." But, we do not see how the District Court abused its discretion in reasoning that the likelihood of recidivism is high despite the presence of certain mitigating factors. See United States v. Sagendorf,
B.
We take up, then, Benítez's argument that his 120-month prison sentence is substantively unreasonable, given that it was the maximum allowed and was being imposed consecutively to a ninety-year sentence. We are not persuaded.
"[T]he linchpin of a reasonable sentence is a plausible sentencing rationale and a defensible result." United States v. Martin,
Benítez does reference our recent statement that "[c]ontext matters" in sentencing decisions in contending that imposing an upwardly variant sentence consecutively *472to an already lengthy one is substantively unreasonable. United States v. Matos-de-Jesús,
IV.
For these reasons, Benítez's sentence is affirmed .
The parties agreed to recommend a sentence of 180 months on the understanding that Benítez had three prior convictions for a "violent felony" under the Armed Career Criminal Act,
The parties' briefs generally refer to the sentence as having a ninety-year duration. We note, however, that Benítez's counsel said at the sentencing hearing that the "total sentence was 115 years, with somewhere between 60 to 65 years as a minimum," and that Benítez's appellate brief at one point also refers to a 115-year sentence.
The force clause provides that a "crime of violence" encompasses any felony that "has as an element the use, attempted use, or threatened use of physical force against the person of another." U.S. Sentencing Guidelines Manual § 4B1.2(a)(1) (2016).
Benítez also points out that accomplices can be convicted of "murder" as principals in Puerto Rico. To the extent that he means to contend that for this reason the Puerto Rico offense of "murder" at the time of his conviction was broader than the generic crime, we note that the commentary to § 4B1.2(a) provides that the enumerated crimes of violence include aiding and abetting such offenses. See U.S. Sentencing Guidelines Manual § 4B1.2, cmt. n.1 (2016). And Benítez has not argued that Puerto Rico's definition of "aiding and abetting" encompassed more conduct than the generic definition of "aiding and abetting."
In United States v. Resendiz-Ponce,
Reference
- Full Case Name
- United States v. Luis Daniel BENÍTEZ-BELTRÁN
- Cited By
- 7 cases
- Status
- Published