United States v. Contreras-Delgado
Opinion
After pleading guilty to a charge of possessing a machine gun in violation of
I. BACKGROUND.
Because this appeal follows a guilty plea, we draw the facts from the change-of-plea colloquy, the undisputed portions of the PSR, and the transcript of the sentencing hearing.
United States
v.
Arias-Mercedes
,
Federal agents questioned Contreras-Delgado after reading him his rights. Contreras-Delgado admitted that he sold drugs and had purchased the gun that was in his waistband "for protection." He told the agents he knew the pistol was modified to fire automatically "because he specifically asked for it to be fully auto when he purchased it." The firearm also had an aftermarket barrel installed, was equipped with a high-capacity 31-round magazine, and incorporated a machine gun conversion device designed to make semiautomatic Glock pistols fire automatically. No ownership records for the gun could be found.
Contreras-Delgado was indicted for possessing a machine gun, in violation of
The U.S. Probation Office prepared a PSR 1 that outlined the offense conduct described above. Possession of a machine gun carried a base offense level of 20; the PSR subtracted 3 levels for acceptance of responsibility, yielding a total offense level of 17.
Contreras-Delgado was twenty-two years old when he was arrested for the instant offense. By that time, he had two juvenile adjudications: one for pointing a bladed weapon at four other children and threatening to stab them, and another for stealing from his mother and threatening to kill both her and his grandmother. He had also been arrested as an adult for two counts of distributing a controlled substance, but those charges were dismissed pursuant to Puerto Rico's Speedy Trial Act. None of these events counted for criminal history points under the guidelines. Accordingly, the PSR used a Criminal History Category of I, and calculated Contreras-Delgado's GSR as 24 to 30 months' imprisonment. Under the guidelines, Contreras-Delgado was ineligible for probation. See U.S.S.G. § 5B1.1.
The PSR then set forth at length Contreras-Delgado's personal history and characteristics, including his family history, and his mother's impression of his treatment needs: his "volatile nature" plus "hyperactivity disorder ... when combined with his drug use, results in violent behavior. If he is under treatment, he can control his impulses." The PSR also included a detailed summary of Contreras-Delgado's mental and emotional health, including a 2012 evaluation by a clinical psychologist and 2017 findings by the Bureau of Prisons Psychology Services.
In its concluding paragraph, the PSR noted that the district court could "consider the following factors to impose a sentence *237 outside the advisory [g]uideline[ ]s": Contreras-Delgado's history of substance abuse, his juvenile record, the fully loaded weapon and additional magazines he possessed during the instant offense, his admissions that he had sought out a fully automatic firearm and that he sold drugs, and finally, that he was arrested as part of an operation targeting drug point activities in a public housing project.
Contreras-Delgado did not object to any portion of the PSR. He did, however, submit a sentencing memorandum urging the district court to focus on Contreras-Delgado's rehabilitative potential and recommending a non-GSR "alternative sentence," combining incarceration, probation, and supervised release.
At sentencing, Contreras-Delgado sought to present briefly the testimony of Dr. Ramos, the clinical psychologist who evaluated him while he was in jail. The United States ("the government") offered instead to stipulate to the contents of the report prepared by Dr. Ramos and its recommendation that Contreras-Delgado receive substance abuse treatment. The district court approved the stipulations and ruled that there was no need for Dr. Ramos to testify. The district court summarized Dr. Ramos's recommendation-that Contreras-Delgado "receive substance abuse treatment to address his problems with addiction and to prevent relapses"-and directed that the whole report be added to the PSR. The district court also instructed that the PSR be modified to include mental health treatment as one of the conditions.
Contreras-Delgado argued that a prolonged sentence of imprisonment would not facilitate his rehabilitation. He particularly "highlight[ed] from the sentencing memo [ ] the idea that because of [his] age, a prolonged sentence of imprisonment may not actually contribute to his rehabilitation." The district court pointed out that Dr. Ramos's report contradicted that statement: "[Dr.] Ramos says that he is in remission because of his incarceration." Contreras-Delgado disagreed and argued that "it's about all the environmental factors that go into what would help someone rehabilitate." The government agreed that Contreras-Delgado did "do well under a controlled environment," but indicated that a "controlled environment" could be obtained in prison. The government also explained that other sentencing factors strongly favored a sentence of imprisonment, particularly the serious nature of Contreras-Delgado's offense and his prior offenses involving threats of violence.
The parties agreed that Contreras-Delgado's total offense level was 17. The court then recounted the facts of Contreras-Delgado's juvenile offenses involving threats of violence and noted Contreras-Delgado's 2014 arrest for a controlled substance offense. As the PSR explained, this meant that Contreras-Delgado had no criminal history points. His GSR was thus 24 to 30 months. Contreras-Delgado asked the court to depart or vary downward from imposing a sentence of incarceration and instead impose a combination of incarceration and home confinement. The government, noting that Contreras-Delgado had a machine gun in his waist and had prior contacts with the law, recommended that the court impose a sentence of incarceration within the GSR. The government indicated that the Bureau of Prisons could provide a controlled environment as well as mental health and substance abuse treatment.
Stating that it had considered the facts of Contreras-Delgado's offense as well as the other sentencing factors set forth in
This appeal ensued.
II. DISCUSSION
A. Basic Principles.
As we detail below, Contreras-Delgado contends that the 46-month variant incarceration sentence was both procedurally and substantively unreasonable. "We review sentencing decisions imposed under the advisory Guidelines, whether outside or inside the applicable GSR, for reasonableness."
United States
v.
Pantojas-Cruz
,
*239
If procedural soundness is established, we then proceed to the second phase of our review, assessing the substantive reasonableness of the sentence, "tak[ing] into account the totality of the circumstances, including the extent of any variance from the Guidelines range."
United States
v.
Bermúdez-Meléndez
,
Even if plain error is not applied, considerable deference must still be given to the district court's judgment.
Clogston
,
B. Procedural Reasonableness.
Contreras-Delgado argues on appeal that the district court abused its discretion in denying his request to present the live testimony of Dr. Ramos, the clinical psychologist who had evaluated him while he was in jail, and that this denial constitutes procedural error because he was precluded from presenting "information relevant to recidivism and rehabilitation ... as part of § 3553(a) 's sentencing factors." He also asserts that the court "overstated" the evidence of his prior violent threats. Contreras-Delgado argues generally that the court did not appropriately balance the § 3553(a) factors, thereby violating the parsimony principle-the statutory directive that sentences should be no higher than necessary to achieve the statutory goals of sentencing. Specifically, Contreras-Delgado complains that the court did not mention Contreras-Delgado's mental characteristics, such as depression and attention deficit hyperactivity disorder.
1.
Contreras-Delgado contends that the district court abused its discretion when it did not allow the testimony of Dr. Ramos at the sentencing hearing and further failed to consider § 3353(a) sentencing *240 factors. The government counters that Contreras-Delgado did not object to this denial and, thus, the appropriate standard of review is for plain error. It is well established that articulating an objection is required in order to preserve the most generous standard for a defendant. This not only protects the interests of the defendant but also provides the government with an opportunity to respond. Proper objection also furthers the interests of judicial economy in that it assists judicial decision-making. To be sure, the record would have been cleaner if the talismanic "I object" formulation had been uttered. At the same time, a review of the record leaves little doubt that counsel sought to present the live testimony of the witness and persisted in explaining why it was necessary even after it had been denied. In any event, whether the standard of review be abuse of discretion or plain error, we conclude that Contreras-Delgado's claim of procedural error cannot succeed.
First, we note that while a defendant enjoys a right to due process at sentencing,
United States
v.
Stile
,
Here, the district court not only reviewed Dr. Ramos's report from the bench, but it summarized her recommendations and, as reflected in the district court's correction of counsel's interpretation, demonstrated command of its contents. Moreover, Dr. Ramos's entire report was included in the PSR, where, as the district court noted, it could guide the Bureau of Prisons and Probation as they determined appropriate treatment. Further, Contreras-Delgado's counsel fully explained to the court his view that Dr. Ramos's report supported a mitigation of the sentence below the GSR. In sum, under any standard of review, Contreras-Delgado's claim that substitution of Dr. Ramos's report in lieu of testimony constituted procedural error is not meritorious. 2
2.
Contrary to Contreras-Delgado's assertion, the district court properly considered the § 3553(a) sentencing factors, including relevant mitigating and aggravating factors; its weighing of those factors was well within its discretion. While a sentencing court must consider all the incorporated § 3553(a) factors, it "need not verbalize its evaluation of each and every [§] 3553(a) factor."
United States
v.
Reyes-Rivera
,
Moreover, the district court discussed the relevant sentencing factors on the record. First, the district court expressly considered Contreras-Delgado's history and characteristics, including his age, employment, and substance abuse history. Then, the court specified the facts it found warranted a sentence above the applicable GSR: Contreras-Delgado's automatic weapon was loaded with a 31-round high-capacity magazine and 31 rounds of ammunition; Contreras-Delgado had a second 31-round high-capacity magazine, also fully loaded with 9-mm ammunition for the automatic weapon; Contreras-Delgado had a third high-capacity magazine, this one with 15 rounds of 9-mm ammunition; Contreras-Delgado not only knew the weapon was fully automatic, but specifically requested that modification when he purchased it; Contreras-Delgado had previously benefited from leniency and the "probation and programs offered by the Commonwealth of Puerto Rico and the Court of Juvenile Affairs"; Contreras-Delgado admitted selling drugs and had in fact been arrested-though not convicted-for possession with intent to distribute marijuana and cocaine; and Contreras-Delgado's criminal history included "threatening to kill children with a knife and threatening to kill his mother." Contreras-Delgado's suggestion that the district court somehow erred by characterizing these violent threats as violent behavior is unavailing.
See, e.g.
,
United States
v.
Harden
,
These are all statutorily authorized sentencing considerations; each of these facts relates to the nature and circumstances of the offense (especially those not already accounted for by the guidelines) or to Contreras-Delgado's history and characteristics.
See
The district court expressly found that a sentence above the GSR was further supported by the statutory sentencing considerations of: "reflect[ing] the seriousness of the offense, promot[ing] respect for the law, protect[ing] the public from further crimes by Mr. Contreras[-Delgado], and address[ing] the issues of deterrence and punishment." That finding must be afforded a high level of deference on appeal,
*242
regardless of the standard of review applied.
See
Vázquez-Martínez
,
Contreras-Delgado's claim "that the court erred by relying on [negative factors] excessively" thus simply "amounts to a disagreement with the district court's weighing of the different sentencing factors."
United States
v.
Cruz-Vázquez
,
All the potentially mitigating factors Contreras-Delgado identifies on appeal were discussed in the PSR, in Contreras-Delgado's sentencing memorandum, and/or at sentencing. "The potentially mitigating factors [the defendant] identifies on appeal were thoroughly discussed in the presentence report; that the district court did not explicitly mention them during the sentencing hearing suggests they were unconvincing, not ignored."
United States
v.
Lozada-Aponte
,
Moreover, although the district court did not recite Contreras-Delgado's mental health history, it did review Dr. Ramos's report and direct that it be added to the PSR, which signals consideration of its contents. "The record ... supports the conclusion that the District Court simply focused on other considerations that it implicitly deemed more important, including the defendant's history of violent behavior."
United States
v.
Occhiuto
,
Regarding Contreras-Delgado's prior behavior, the district court did include a factually accurate comment that Contreras-Delgado had been arrested, but not convicted, of possessing drugs with intent to distribute them at the state level. Contreras-Delgado separately admitted that he "sells drugs ... to make a living," so it is undisputed that he committed drug trafficking offenses not reflected in his criminal history score. Thus, the district court did not run afoul of this court's admonition not to use mere arrests to "infer unlawful behavior unless there is proof by a preponderance of the evidence of the conduct" those charges allege. (
Rondón-García
,
Accordingly, Contreras-Delgado's claim fails under any standard of review. Even under the more defendant-friendly abuse of discretion standard, Contreras-Delgado's arguments fail because his sentence was properly based on permissible § 3553(a) sentencing factors, and the allegedly mitigating factors were considered by the district court.
See
Arroyo-Maldonado
,
*243 C. Substantive Reasonableness.
An inquiry into the substantive reasonableness of a sentence must "take into account the totality of the circumstances, including the extent of any variance from the Guidelines range."
Gall
,
As has been noted, it is clear from the record that the district court sufficiently considered the relevant § 3553 sentencing factors.
See
supra
pp. 240-43. The court assessed the dangerous nature and circumstances of the offense of conviction, including the fact that the machine gun possession offense also involved a substantial amount of ammunition and multiple high-capacity magazines, heightening the risk posed to the public. Moreover, Contreras-Delgado admitted committing other crimes (specifically, selling drugs) for which he had never been punished, despite having been previously arrested. That, as well as the fact that Contreras-Delgado's prior juvenile convictions for threats of violence resulted in no criminal history points, support the conclusion that the district court was well within its discretion to believe that the GSR underrepresented Contreras-Delgado's criminal history. "[A] district court may vary a sentence upward in an effort to reflect past leniency."
United States
v.
Santiago-González
,
We further note that the length of the sentence does not make it per se unreasonable. "The district court evaluated the factors provided under
In this case, Contreras-Delgado faced a statutory maximum sentence of up to ten years of imprisonment.
See
*244
III. CONCLUSION
In sum, a sentence should be left intact so long as it is procedurally sound and there is "a plausible sentencing rationale and a defensible result."
Martin
,
We conclude that Contreras-Delgado's sentence was procedurally and substantively reasonable.
The sentence is affirmed .
All references herein are to the amended PSR, filed on June 23, 2017, which contained some factual updates from the first PSR, filed two weeks prior.
We note that the government also argues that Contreras-Delgado consented to the substitution of Dr. Ramos's report in lieu of her live testimony, and that this consent constituted waiver, instead of forfeiture, such that he may not revive his waived argument on appeal.
See generally
United States
v.
Delgado-Sánchez
,
Because Contreras-Delgado's improper-weight arguments fail regardless of the standard of review, it is immaterial whether they are characterized as procedural or substantive arguments.
Cf.
Caballero-Vázquez
,
Reference
- Full Case Name
- UNITED STATES of America, Appellee, v. Angel Rafael CONTRERAS-DELGADO, Defendant, Appellant.
- Cited By
- 19 cases
- Status
- Published