United States v. Rivera-Santiago
Opinion
Claiming procedural unreasonableness, Elvin Antonio Rivera-Santiago appeals his 48-month sentence for unlawfully possessing a firearm. He contends that the district court failed to adequately explain its reasons for imposing an above-guideline sentence, that a variant sentence was not supported by the record, and that the district court "relied on erroneous facts." After careful review, we affirm.
I.
Given that this appeal follows a guilty plea, "we draw the relevant facts from the plea agreement, the change-of-plea colloquy, the undisputed portions of the presentence investigation report ("PSR"), and the transcript of the disposition hearing."
United States
v.
O'Brien
,
Pursuant to the plea agreement, Rivera-Santiago pleaded guilty to count one of a two-count indictment, illegal possession of a firearm by a convicted felon, in violation of
The PSR calculated Rivera-Santiago's total offense level at 17 and his criminal history category at III, for a guideline range of 30 to 37 months. The calculation took into account Rivera-Santiago's prior conviction for possession of a stolen semi-automatic firearm with an extended magazine and additional loaded magazines, and his commission of the current offense while on supervised release. Neither side objected to the PSR.
At the sentencing hearing, defense counsel requested a low-end guideline sentence of 30 months while the government requested an upper-end guideline sentence of 37 months. Defense counsel highlighted, inter alia, Rivera-Santiago's difficult upbringing and the fact that he faced a sentence of incarceration in the pending revocation matter. The government noted that (1) the offense involved two weapons and several extended magazines; (2) the conduct was essentially the same as that underlying Rivera-Santiago's prior conviction; (3) he committed the present offense while less than a year out of prison and still on supervised release; and (4) he had committed several rules violations while incarcerated awaiting sentencing. As noted in the PSR, Rivera-Santiago's incarceration infractions included circulating money illegally inside the prison, "refusing to obey an order," and "being insolent [to] staff." The government argued that his behavior, in general, exhibited a "serious disrespect for the law and authority."
The district court agreed with the guideline range specified by the PSR, i.e., 30 to 37 months. The court then addressed the sentencing factors prescribed by
II.
Rivera-Santiago contends that the 48-month sentence imposed by the district court is procedurally unreasonable because (1) the court failed to adequately explain its variant sentence, which he claims was not supported by the record; and (2) the court "relied on erroneous facts."
3
The parties dispute whether he adequately preserved his objections and thus disagree as to the standards of review. Because we would affirm the sentence regardless of the standard, we assume, favorably to Rivera-Santiago, that he preserved his objections. We therefore review the district court's imposition of a variant sentence for abuse of discretion and its factfinding for clear error.
See
United States
v.
Ruiz-Huertas
,
A. Justification for Variant Sentence
Rivera-Santiago argues that his sentence is procedurally unreasonable because there is no basis for distinguishing his case from the "run-of-the-mill" felon-in-possession case contemplated by the guideline sentencing range, and because "[n]o particular circumstance was pointed out by the district court to adequately support a varian[t] sentence."
It is well established that a district court may vary above or below a guideline range so long as it "offer[s] a 'plausible and coherent rationale' for its variance."
United States
v.
Alejandro-Rosado
,
Here, the district court offered "a plausible and coherent rationale" for its eleven-month variance.
See
Alejandro-Rosado
,
B. Reliance on Erroneous Facts
Rivera-Santiago also contends that the district court's comments after defense counsel objected to the sentence demonstrate that the court relied on erroneous facts, namely (1) that Rivera-Santiago had put the safety of his family and the community at risk, and (2) that his offense was "very serious." We disagree.
The district court's comments invoked only undisputed facts supported by the record. It is a foundational principle of the felon-in-possession statute that a felon's unlawful possession of firearms presents a danger to society.
See
United States
v.
Doe
,
III.
Concluding for the foregoing reasons that Rivera-Santiago's 48-month variant sentence was not procedurally unreasonable, we affirm.
So ordered .
As part of the plea agreement, the government moved at sentencing to dismiss count two, which charged him with illegal possession of a machine gun,
The government properly concedes that the appeal waiver in the plea agreement does not apply.
See
United States
v.
Montalvo-Cruz
,
To the extent Rivera-Santiago intended to bring a substantive unreasonableness claim, he has waived such a claim by failing to develop it beyond a few passing references in his brief.
See
United States
v.
Zannino
,
Reference
- Full Case Name
- UNITED STATES of America, Appellee, v. Elvin Antonio RIVERA-SANTIAGO, Defendant, Appellant.
- Cited By
- 11 cases
- Status
- Published