United States v. Viloria-Sepulveda
Opinion
Fabian Viloria-Sepulveda pled guilty to illegal possession of a machine gun in violation of
Viloria-Sepulveda challenges this sentence on procedural and substantive grounds. Procedurally, he contends that the district court erred in considering two types of evidence: (1) photographs found on the defendant's cell phone showing the defendant and others handling drugs, drug paraphernalia, and guns, including military-style assault weapons, and (2) information about the pervasiveness of guns and gun violence in Puerto Rico.
We affirm.
I.
Puerto Rico police officers from the Drug Division of San Juan had a member of a violent drug trafficking organization under physical surveillance on January 30, 2017. The officers conducting the surveillance saw a Toyota Corolla escorting the gang member's car. Viloria-Sepulveda was the driver of the Toyota, as the police would later discover.
The officers did a record check of the Toyota's license plates. Learning that the Toyota had been reported missing and should be recovered, the police stopped the car. As the officers neared the front driver's side window, they watched Viloria-Sepulveda (who was sitting in the driver's seat) attempt to put a firearm inside a bag on the front passenger seat. The officers ordered Viloria-Sepulveda to roll down the window, but he instead persisted in trying to hide the firearm. So the officers told Viloria-Sepulveda to step out of the car, *7 which he did, and they placed him under arrest.
The officers determined that the gun recovered from the bag was a Glock 34 pistol modified to shoot automatically and loaded with an extended magazine containing twenty-four bullets. Viloria-Sepulveda volunteered to the officers that the weapon was his.
A search of the Toyota uncovered another extended magazine (with twenty-four rounds of ammunition) for the Glock, a face mask, a drug ledger, walkie talkies, and three cell phones. A search (to which Viloria-Sepulveda consented) of one of the cell phones and its applications, including a messaging application called WhatsApp, uncovered multiple photographs of Viloria-Sepulveda and others carrying firearms of different types, including assault-style weapons; of drug ledgers; of a scale; and of substances in plastic bags and in vials.
A federal grand jury in Puerto Rico indicted Viloria-Sepulveda on one count of illegal possession of a machine gun.
See
The Probation Office prepared a presentence report (PSR), which found a Total Offense Level of 15 and a Criminal History Category of I. Based on these calculations, the PSR calculated a GSR of eighteen to twenty-four months.
In its sentencing memorandum, the government agreed with the PSR's calculations but argued for an upwardly variant sentence of forty-eight to sixty months based on the nature of the offense, the defendant's characteristics, and the need for deterrence and for protection of the public from future crimes by the defendant. It stressed that Viloria-Sepulveda "was heavily armed with" a machine gun and "two extended magazines" and argued that Viloria-Sepulveda's proximity to the violent gang member under surveillance, as well as Viloria-Sepulveda's possession of the walkie talkies, drug ledger, and face mask were "all evidence that [Viloria-Sepulveda] was part of a violent criminal gang willing to conduct its operations, and protect one another, on a public street in broad daylight." Further, the memorandum argued that the nature of the offense and the photographs on the defendant's cell phone showed that he was "an individual with a penchant for high-capacity firearms, drugs, and criminal activity."
Finally, the government urged that the pervasiveness of guns and gun violence in Puerto Rico justified an upward variance to ensure adequate deterrence and to protect the public from future crimes by the defendant. The memorandum observed that the homicide rate from gun violence in Puerto Rico was among the highest in the world and stated, based on FBI statistics, that Puerto Rico's murder rate is the second-highest in the United States.
Viloria-Sepulveda's sentencing memorandum agreed with the PSR's guidelines sentencing calculations but argued that an upward variance was not warranted. Specifically, he objected to the government's reliance on any photographs sent to the defendant through a group chat he was a member of on WhatsApp, saying that it would be inappropriate to "presuppose[ ] that Mr. Viloria[-Sepulveda] personally participated in taking the photographs and video and that therefore he had access to the narcotics, firearms, and other items depicted in said photographs." The memorandum also claimed that many of the photographs depicted innocent conduct, as they were taken during the recording of music videos for local artists. Finally, Viloria-Sepulveda's memorandum highlighted *8 that he was a father, had a record of employment, and was a first-time offender.
At the sentencing hearing on January 26, 2018, the government reiterated its arguments for an upwardly variant sentence of between forty-eight and sixty months. The district court "recogize[d] that Puerto Rico is a hot spot for weapons, especially those that contain the chips which make them fully automatic as machine guns." It also rejected Viloria-Sepulveda's objections to the photos.
The district court accepted the PSR's guidelines calculations and GSR. It noted that it had "considered all of the [
II.
Preserved claims of procedural and substantive sentencing error are reviewed under an abuse of discretion standard.
See
Gall
v.
United States
,
Viloria-Sepulveda preserved only one of his two procedural objections. He argued in his sentencing memorandum and at the hearing that the photographs were not his or that they depicted scenes from music videos. The second of those objections was similar enough to the issue raised here -- that it had not been established that the photographs depicted illegal conduct -- to put the district court on fair notice, preserving the issue.
See
United States
v.
Ríos-Hernández
,
We find no error, let alone plain error, and no abuse of discretion in the sentence. Turning first to the procedural challenges, we emphasize a few principles at the outset.
III.
A sentencing judge, "draw[ing] upon his familiarity with a case[ and] weigh[ing] the factors enumerated in
Congress has mandated that "[n]o limitation shall be placed on the information concerning the background, character, and conduct of a person convicted of an offense which a court of the United States may receive and consider for the purpose of imposing an appropriate sentence."
Section 3553(a) in particular "invite[s] the district court to consider, broadly,"
United States
v.
Politano
,
The photographs, whose authenticity Viloria-Sepulveda does not challenge, conveyed reliable information about the defendant relevant to his sentence for illegal possession of a machine gun. The district court appropriately concluded that the fact that Viloria-Sepulveda had saved numerous photographs (some including him) of firearms, drugs, and drug paraphernalia, or had been sent such photographs on WhatsApp, signaled his past participation in or propensity for illegal or violent activities involving drugs and firearms.
See
Acevedo-Lopez
,
In the district court, Viloria-Sepulveda argued that the images were either not his or that they depicted innocent conduct. But the district court was free to find otherwise, as it did.
See, e.g.
,
*10
United States
v.
Oliveira
,
On appeal, Viloria-Sepulveda attempts to characterize the images as irrelevant or unreliable because "it cannot be established by the pictures that the firearms violated any federal statute." Not so, and the argument misses the point in any event. The district court did not err in finding that the pictured weapons, some of which looked like "high-powered AK-47s," were likely possessed illegally. Further, as we stated, images associating the defendant with drugs, drug-related items, and weapons (whatever the status of those weapons under federal law) could be used in upwardly varying his sentence, as they are evidence of relevant history and characteristics.
See
Gallardo-Ortiz
,
The district court also did not err in considering the problem of gun violence in Puerto Rico and that "Puerto Rico is a hot spot for weapons." Community considerations such as the prevalence of weapons and of violent crime can justify upwardly varying a sentence for a gun possession conviction.
See
Flores-Machicote
,
The pervasiveness of guns and the level of violence in the local community are connected to the determinations that a sentencing judge must make under § 3553(a)(2). As we explained in
United States
v.
Flores-Machicote
,
The district court did not, as Viloria-Sepulveda argues, overemphasize these community concerns at the expense of individual ones.
See
id.
;
see also, e.g.
,
United States
v.
Rivera-González
,
Finally, the explanation just recounted justified the district court's imposition of an upwardly variant sentence of sixty months. That this five-year term of imprisonment is substantively reasonable is also evident from the fact that Congress has authorized a term of imprisonment of up to ten years for this offense.
See
Affirmed .
"Under the plain error standard, the appellant must show '(1) that an error occurred (2) which was clear or obvious and which not only (3) affected the defendant's substantial rights, but also (4) seriously impaired the fairness, integrity, or public reputation of judicial proceedings.' "
Soto-Soto
,
Viloria-Sepulveda argues that the district court afforded too little importance to potentially mitigating personal characteristics like these. But the sentencing court has broad discretion in weighing and balancing the § 3553(a) factors, and we see no abuse of discretion in the weight assigned here.
United States
v.
Gierbolini-Rivera
,
Reference
- Full Case Name
- UNITED STATES, Appellee, v. Fabian VILORIA-SEPULVEDA, A/K/A Fabian Vilora-Sepúlveda, Defendant, Appellant.
- Cited By
- 13 cases
- Status
- Published