United States v. Cruz-Olavarria
Opinion
Roberto Cruz-Olavarria challenges two separate terms of imprisonment: his 120-month sentence for possessing a machine gun, and a consecutive 24-month sentence for violating conditions of supervised release related to an earlier conviction for possessing a machine gun. Because an appellate waiver provision in Cruz-Olavarria's plea agreement bars us from reviewing the sentence imposed on the new charges, we address the merits only of his revocation sentence. As to that sentence, we find no error and therefore affirm.
I.
In June 2012, Cruz-Olavarria pled guilty to unlawfully possessing a firearm that was modified to shoot automatically -- i.e., a machine gun, as defined by federal law.
See
In a five-count superseding indictment issued in October 2016, Cruz-Olavarria was charged with (1) being a felon-in-possession of a firearm and ammunition (Count One), (2) illegal possession of a machine gun (Count Two), (3) possession with intent to distribute drugs (Count Three), and (4) possession of firearms in furtherance of a drug trafficking crime (Counts Four and Five). Cruz-Olavarria agreed to plead guilty to Counts One and Two, and the government agreed in return to dismiss the remaining counts.
*663 The Sentence Recommendation provision of the plea agreement stated:
After due consideration of the relevant factors enumerated in18 U.S.C. § 3553 (a) and after considering that the parties have agreed that Counts Three through Five will be dismissed ( [one of] which carried a minimum sentence of 30 years of imprisonment), the parties agree that as to Counts One and Two, the defendant will request a sentence of no less than ninety-six (96) months and the United States may request a sentence of up to one hundred twenty (120) months of imprisonment.
The plea agreement also contained a Waiver of Appeal provision: "The defendant knowingly and voluntarily waives the right to appeal the judgment and sentence in this case, provided that the Defendant is sentenced in accordance with the terms and conditions set forth in the Sentence Recommendation provisions of this Plea Agreement."
The district court sentenced Cruz-Olavarria to 120 months' imprisonment -- the statutory maximum -- for the new criminal conduct. 2 The Guidelines range for those crimes, based on his acceptance of responsibility and Criminal History Category ("CHC") of III, was 30 to 37 months' imprisonment. In explaining the sentence, the court emphasized the special danger posed by machine guns, referenced Cruz-Olavarria's possession of marijuana, and noted that "he possessed the machine gun in further[ance] of a drug trafficking crime." The court observed that it would have imposed a sentence greater than 120 months but for the statutory limit, having concluded that the statutory maximum was insufficient to reflect, inter alia, the seriousness of the offense and the need to deter and punish Cruz-Olavarria.
Immediately after Cruz-Olavarria's sentencing on the new criminal charges, in the same proceeding, the district court separately considered the revocation sentence.
3
Because Cruz-Olavarria's violation of his supervised release conditions included possession of a machine gun, the violation was classified as Grade A, the most serious type.
See
U.S.S.G. § 7B1.1(a) ;
United States
v.
Tanco-Pizarro
,
Defense counsel urged the court to run the revocation sentence concurrently with the sentence for the new crimes. She emphasized that Cruz-Olavarria had "complied with most of his supervision conditions," and she further noted that his difficult childhood and learning disabilities had limited his education and employment opportunities. The government requested "a guideline sentence ... to run consecutively" and suggested 12 *664 months as "adequate" for "the breach of trust."
The court rejected both recommendations and again varied from the Guidelines to impose the statutory maximum 24-month sentence to run consecutively to the just-imposed 120-month term. The court observed, inter alia, that Cruz-Olavarria "has shown that he is unable to comply with the law," "demonstrates a blunt disregard for the conditions imposed by the [c]ourt and has no concern for public safety." The court referenced the sentencing factors set forth in
On appeal, Cruz-Olavarria contests both sentences, arguing that he is entitled to resentencing because the district court failed to adequately support either upward variance from the Guidelines.
II.
A. Waiver of Appeal
In challenging his 120-month sentence for the crimes charged in the 2016 indictment, Cruz-Olavarria confronts the threshold barrier of the waiver of appeal in his plea agreement. He maintains that the waiver does not apply because he acquiesced only to a term of 96 months. He points out that the plea agreement did not contain a joint recommendation accepted by both parties, and he asserts that the waiver provision "in no way represents a concession by the defense that the 120 month sentence that the government reserved the right to advocate [for] ... would be reasonable or acceptable." This attempt to avoid the waiver is unavailing.
Under First Circuit precedent, a sentencing recommendation provision such as the one in Cruz-Olavarria's plea agreement establishes a range for an appellate waiver that incorporates both parties' proposals.
See
,
e.g.
,
United States
v.
Morales-Arroyo
,
B. Revocation Sentence
Cruz-Olavarria asserts that his variant sentence for violating his conditions of supervised release is unlawful because the district court failed to identify how his circumstances "differ[ed] from the ordinary situation covered by the guidelines calculation."
United States
v.
Zapete-Garcia
,
In evaluating the substantive reasonableness of a sentence, "we proceed under the abuse of discretion rubric, taking account of the totality of the circumstances,"
United States
v.
Ruiz-Huertas
,
The district court did not expound at length on its reasons for deviating from the Guidelines during the revocation portion of the sentencing hearing. Nonetheless, its explanation in context was more than sufficient to satisfy the plausibility requirement. Only minutes earlier, in sentencing Cruz-Olavarria for the new criminal conduct, the court had emphasized the severity of the new crimes -- which also constituted the violations of supervised release. The court not only made clear its view that machine guns are distinctively dangerous,
6
but it also highlighted that the new crimes included unlawful possession of a machine gun -- i.e., the same crime for which Cruz-Olavarria was serving the term of supervised release.
See
,
e.g.
,
Tanco-Pizarro
,
In addition, although the drug-related counts were dropped as part of the plea deal, the district court could properly consider the unchallenged facts surrounding
*666
Cruz-Olavarria's arrest contained in the Presentence Investigation Report ("PSR").
See
United States
v.
Severino-Pacheco
,
We have observed that a court's reasons for imposing a variant sentence "should typically be rooted either in the nature and circumstances of the offense or the characteristics of the offender."
United States
v.
Fuentes-Echevarria
,
For the foregoing reasons, Appeal No. 17-1762 is dismissed. The sentencing judgment underlying Appeal No. 17-1761 is affirmed.
The relevant facts in this case are largely undisputed, although Cruz-Olavarria questions on appeal the statement -- drawn from the summary of offense conduct in his Presentence Investigation Report ("PSR") -- that he had been in possession of the plastic bag retrieved by the officers. However, Cruz-Olavarria did not object to the PSR's account, and we therefore rely on it in setting out the background.
See
United States
v.
De la Cruz-Gutiérrez
,
At the government's request, pursuant to the plea agreement, the court dismissed Counts Three, Four, and Five of the superseding indictment.
The district court is authorized by statute to impose a term of imprisonment upon revocation of a term of supervised release.
See
Although Cruz-Olavarria's CHC for the 2016 crimes was III, the CHC of I for the supervised release violation was based on "the category determined at the time the defendant originally was sentenced to the term of supervision." U.S.S.G. § 7B1.4 cmt. n.1.
We bypass the government's contention that Cruz-Olavarria's challenge to his sentence deserves only plain error review. The proper standard of review for unpreserved substantive reasonableness claims remains an open question in our circuit,
see
Contreras-Delgado
,
The district court read aloud the following language from a Ninth Circuit case, United States v. Henry :
A modern machine gun can fire more than 1,000 rounds per minute, allowing a shooter to kill dozens of people within a matter of seconds. Short of bombs, missiles, and biochemical agents, we can conceive of few weapons that are more dangerous than machine guns.
... Outside of a few government-related uses, machine guns largely exist on the black market.
In short, machine guns are highly "dangerous and unusual weapons" that are not "typically possessed by law-abiding citizens for lawful purposes."
Although the district court did not expressly link its concerns about machine guns and Cruz-Olavarria's disregard for public safety to the prevalence of firearms and violent crime in Puerto Rico, Cruz-Olavarria's PSR noted that the court "may consider Puerto Rico's high firearms and violent crime rate to impose the sentence."
See
,
e.g.
,
United States
v.
Hernández-Ramos
,
Reference
- Full Case Name
- UNITED STATES of America, Appellee, v. Roberto CRUZ-OLAVARRIA, Defendant, Appellant.
- Cited By
- 2 cases
- Status
- Published