United States v. Rodriguez-Reyes
Opinion
*560
This is a challenge to the imposition of an upwardly variant sentence of thirty-six months' imprisonment, following a guilty plea by José Francisco Rodríguez-Reyes (Rodríguez) to a charge of being a felon in possession of a firearm, in violation of
As to procedural reasonableness, Rodríguez argues on appeal that the district court: (1) erred in the course of sentencing by discussing Rodríguez's arrests that did not result in convictions; (2) failed to consider adequately the
Finding no reversible error, we affirm Rodríguez's sentence.
I.
"When a sentencing appeal follows a guilty plea, 'we glean the relevant facts from the change-of-plea colloquy, the unchallenged portions of the presentence investigation report ... and the record of the disposition hearing.' "
United States
v.
Dávila-González
,
A. Facts of the Offense
On February 23, 2017, officers from the Puerto Rico Police Department (PRPD) received information about a future firearm transaction, including the location, date, time, and description of vehicles likely to be involved. PRPD officers, along with agents from the federal Department of Homeland Security (DHS), during surveillance observed Rodríguez and two other men standing near the rear hatch of a Jeep Cherokee looking at a rifle. Rodríguez drove away in the Jeep and the police officers and agents followed by car; Rodríguez then parked and entered the car of another man involved in the attempted firearm transaction. The men noticed the police officers and agents and fled by vehicle. Their vehicle eventually crashed, and the officers detained the two men. After Rodríguez and the other man consented to a search of the vehicles, the officers and agents found an AM-15 multi-caliber rifle, which Rodríguez admitted to purchasing online and was planning to sell for $ 2,000.
B. Procedural History
On March 8, 2017, a federal grand jury in Puerto Rico indicted Rodríguez on one
*561
count of being a felon in possession of a firearm and one count of being an unlawful drug user in possession of a firearm, in violation of
The Presentence Investigation Report (PSR) followed the parties' calculations from the plea agreement, with a TOL of twelve resulting from a base level of fourteen and the removal of two levels for acceptance of responsibility. See U.S.S.G. § 3E1.1(a). Rodríguez had three prior convictions: two state illegal drug possession convictions in Texas (one for marijuana, one for both marijuana and cocaine), and a federal conviction for conspiracy to commit mail fraud and bank fraud in Puerto Rico. This gave Rodríguez a criminal history category (CHC) of III. A TOL of twelve and a CHC of III led to a guideline imprisonment range of fifteen to twenty-one months.
The PSR also listed, as required, six arrests which did not lead to convictions (but also did not lead to acquittals), four of which related to Rodríguez's illegal drug possession. 1 See Fed. R. Crim. P. 32(d)(2)(A)(i) (requiring that the PSR contain information on "the defendant's history and characteristics, including ... any prior criminal record"). The drug arrests are discussed below. The PSR also stated that "[i]n this case a variance [may be] considered since the defendant has a high risk of recidivism." That risk was evidenced by, inter alia, Rodríguez's prior criminal history (which took three pages of the PSR to recount), the fact that the offense of conviction took place within five months of his completion of a supervised release term from his federal mail and bank fraud imprisonment, and a pending arrest warrant against him in El Paso, Texas for illegal possession of marijuana. By the time of completion of the PSR, the pending Texas "charge was dismissed" because Rodríguez "was convicted in another case."
The PSR also described a history of illegal drug use by Rodríguez spanning more than twenty-five years. Rodríguez stated that he began smoking marijuana at the age of twelve and smoked marijuana approximately five times per day, having returned to drug use in 2002 after a one-year break following a drug treatment program (completed pursuant to a 2000 Puerto Rico drug charge). Indeed, Rodríguez tested positive for marijuana on February 27, 2017, shortly after his arrest in the present case. He also stated that he began using cocaine and Percocet when he was twenty-six, in 2004 or 2005. The PSR also stated that Rodríguez and his then-wife separated in 2005 "[a]s a result" of Rodríguez's "mari[j]uana addiction."
In his sentencing memorandum, Rodríguez did not object to the PSR or any facts within the PSR, including the facts as to the disposition of his arrests and his drug use (he did say that some of his debt had been paid off). ("The Pre-Sentence Report was discussed with [Rodríguez] and there are no objections.") His sentencing memorandum acknowledged that Rodríguez "ha[d] been using Mari[j]uana since age 12 on a daily basis" and his drug use "ha[d]
*562 escalated to the use of Cocaine and Percocet."
C. Sentencing Hearing
In his sentencing memorandum and at the sentencing hearing, Rodríguez requested a sentence of fifteen months' imprisonment, at the bottom of the guidelines range. Rodríguez's counsel expressly referred to the sentencing memorandum at the hearing. He did not dispute the PSR's calculations. At the sentencing hearing, the government requested a sentence of twenty-one months' imprisonment, at the top of the guidelines range. It explained the disposition of Rodríguez's arrests that had not led to convictions, and Rodríguez's counsel stated that he had no objections to the government's explanation.
The district court accepted the PSR's calculations of the TOL, the CHC, and the guidelines range. The district court then listed Rodríguez's prior arrests that did not lead to convictions, accurately describing the PSR and the government's explanation of the disposition of these arrests.
Explaining why it was following the recommendation of the probation officer and imposing an upwardly variant sentence (as recommended by the probation officer), the district court gave a number of reasons and justifications. To start, it stated that "neither [side's] sentence recommendation reflects the seriousness of the offense, promotes respect for the law, protects the public from further crimes by [Rodríguez], or addresses the issues of deterrence and punishment." These statements track closely the sentencing factors laid out at
The district court noted Rodríguez's "encounters with the law since he was 21 years old," as well as Rodríguez's "recidivism, his drug use history, [and] his lack of steady employment." The drug use described was that noted earlier, as well as Rodríguez's positive test for marijuana on the date of his arrest for the offense of conviction. The district court also stated that the arrest for the present firearm offense came "less than five months after having completed his supervised release term" for his federal wire and bank fraud conviction. The district court further stated that it was "taking into consideration the nature of the weapon involved, an assault rifle, which accepts 5.56 millimeter military ammunition."
After describing these reasons for the variance, the district court then imposed an upwardly variant sentence of thirty-six months' imprisonment. That variant sentence is well under the statutory maximum of 120 months.
See
Rodríguez timely appealed.
II.
"In sentencing appeals, appellate review is bifurcated."
3
United States
v.
Ruiz-Huertas
,
A. Procedural Reasonableness
Because Rodríguez did not raise any procedural objections to his sentence at the district court, as he acknowledges, this court's review is for plain error.
United States
v.
Soto-Soto
,
We start with Rodríguez's argument about the district court's reference to Rodríguez's arrests that did not lead to convictions. We then turn to Rodríguez's arguments about the district court's allegedly inadequate consideration of the Section 3553(a) factors and the variance from the government's sentencing recommendation.
1. The District Court Did Not Plainly Err in Considering Rodríguez's Arrests Not Leading to Convictions as a Matter Leading to an Upward Variance
Rodríguez argues that the district court erred in "reciting" Rodríguez's six arrests that did not lead to convictions. To the extent he is arguing that the court errs in merely reciting an arrest record, he is flatly wrong.
See
United States
v.
Mercer
,
The government stresses that the district court "relied on other factors" beyond arrests "when it imposed the upward variance." As to the arrests, the government argues that the four drug arrests could be considered because they met the reliability standard. That is because they were corroborated by a number of uncontested facts in the PSR about Rodríguez's drug use. It points out that one charge was dismissed not "as a result of the evidence" but based on a Puerto Rico speedy trial rule.
We start with an overview of the law pertinent to the ability of the district court to impose an upward variance. The statute itself says 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."
The government cites to our recent case,
United States
v.
Marrero-Pérez
,
Marrero-Pérez
involves an "upward departure,"
We have earlier noted concern with "accord[ing] any significance to a record of multiple arrests and charges without conviction
unless there is adequate proof of the conduct
upon which the arrests or charges were predicated."
United States
v.
Cortés-Medina
,
It is not wholly clear from the sentencing transcript whether the district court relied in part on the arrests, or instead "merely
referred
to [the defendant's] dismissed charges in the course of relying on certain conduct that took place
*565
in connection with the dismissed charges."
Mercer
,
First and most importantly, other "indicia of reliability" support that Rodríguez engaged in the conduct charged underlying the four drug possession arrests that did not lead to convictions. The PSR -- to which Rodríguez expressly did not object -- discussed a range of illegal drug use by Rodríguez, 6 as did his own sentencing memorandum. As said, Rodríguez stated that he began smoking marijuana at the age of twelve, reverted to drug use in 2002 after a one-year break following a drug treatment program (completed in order to expunge his 2000 Puerto Rico drug arrest), and smoked marijuana approximately five times per day. Rodríguez tested positive for marijuana on February 27, 2017, shortly after his arrest in the present case. This covers the time period for all of Rodríguez's arrests for drug possession that did not lead to convictions (again, in January 2000, January and February 2009, and October 2010). Rodríguez's sentencing memorandum admitted that his "addiction has escalated [from marijuana] to the use of Cocaine and Percocet."
This provides "some greater indicia of reliability," beyond the mere fact of arrest, "that the conduct underlying the arrest[s] took place."
Marrero-Pérez
,
Second and relatedly, we have held that a sentencing court may consider arrests not leading to convictions where "[t]here is no reason ... given [defendant's] failure to contest the facts [in the PSR] and the absence of any acquittal, to doubt that these acts occurred."
United States
v.
Tabares
,
As to the Puerto Rico weapons possession arrest, the government said, and Rodríguez's counsel agreed at the sentencing hearing, that the charges were dismissed due to the speedy trial rules in Puerto Rico. 7 The district court most certainly did not consider any arrests which led to acquittals.
Third, even beyond underrepresentation of criminal history, the district court focused on a number of facts about the offense of conviction and Rodríguez that were clearly relevant to Section 3553(a) factors and to an upward variance, including: the type of weapon involved, an AM-15 "assault rifle" ("nature and circumstances of the offense"); risk of recidivism and commission of this crime shortly after the end of a supervised release term ("protect[ing] the public from further crimes of the defendant"); and Rodríguez's consistent illegal drug use and lack of steady employment ("history and characteristics of the defendant").
There was no plain error by the district court here. 8
2.
This Case Involves a Variance Under
We have explained why there is no plain error here and that this case is consistent with Marrero-Pérez . We add that there is an important structural distinction between this case and Marrero-Pérez that merits some discussion.
Marrero-Pérez
relied substantially on a policy statement concerning upward departures, as specifically defined in the Guidelines.
Here, in contrast with Marrero-Pérez , the district court was varying upward , not departing, and referred specifically to its use of the Section 3553(a) factors. There was no assignment of a higher criminal history category, nor any mention of a departure.
There are significant differences between a departure and a variance. "In federal criminal sentencing, the term 'departure' is a term of art."
United States
v.
Román-Díaz
,
[a] 'departure,' as explained by the Supreme Court, 'is a term of art under the Guidelines and refers only to non-Guidelines sentences imposed under the framework set out in the Guidelines.' Variant sentences, by contrast, ... result from a court's consideration of the statutory sentencing factors enumerated in18 U.S.C. § 3553 (a).
United States
v.
Aponte-Vellón
,
*568
The variance here resulted, in part, from the district court's determination that there was underrepresentation of the criminal history (perhaps due to prior arrests and the conduct underlying those arrests, perhaps due to facts underlying the prior convictions). It is clear that, "[a]s part of the [
In
Marrero-Pérez
, we did not purport to restrict district courts' use of the broad Section 3553(a) factors for a variance.
Marrero-Pérez
also did not purport to overrule First Circuit cases such as
Martin
,
Tabares
, and
Mercer
(respectively, recognizing a sentencing court's discretion to disagree with policy statements in the Guidelines in imposing a variant sentence; affirming the use by a sentencing court of arrests not leading to convictions where the defendant did not contest the conduct and where there were no acquittals; and recognizing the district court's entitlement to consider "conduct that took place in connection with the dismissed charges" that was "set forth in undisputed portions of the PSR").
See, e.g.
,
United States
v.
Viloria-Sepulveda
,
3. The District Court Adequately Considered the Section 3553(a) Factors
Next, Rodríguez argues that the district court did not adequately consider the
"Failure to follow § 3553 results in prejudice warranting reversal for plain error if the defendant shows a reasonable probability that but for an obvious error the court would have imposed a more favorable sentence."
United States
v.
Ortíz-Mercado
,
The district court explicitly stated that it considered the Section 3553(a) sentencing factors, and that statement is "entitled to significant weight."
United States
v.
Calderón-Lozano
,
As we have said, "[f]ailure to follow § 3553 results in prejudice warranting reversal for plain error if the defendant shows a reasonable probability that but for an obvious error the court would have imposed a more favorable sentence."
Ortíz-Mercado
,
4. There Was No Plain Error in the District Court Varying from the Government's Sentencing Recommendation
Rodríguez argues in passing that the district court should have followed the government's sentencing recommendation, because "the government ha[d] all the evidence ... to consider an adequate plea agreement." This argument is waived for lack of developed argumentation.
See
United States
v.
Zannino
,
In any event, a Rule 11(c)(1)(b) plea does not bind a district court to the recommendation in a plea agreement. Fed. R. Crim. P. 11(c)(1)(b) ;
see
United States
v.
Ubiles-Rosario
,
B. Substantive Reasonableness
The standard of review for challenges to substantive reasonableness raised for the first time on appeal, between abuse of discretion and plain error, remains an open question in this circuit.
See
Ruiz-Huertas
,
To some extent blurring substantive and procedural reasonableness, Rodríguez argues that the district court failed to consider potentially mitigating factors (though he does not clearly delineate what these factors were) and failed to consider reasons for the government's request of twenty-one months. This means, he argues, that the district court failed "to weigh the Section 3353(a) factors and various mitigating circumstances properly." He also asserts that the sentence was longer than necessary for the purposes of sentencing.
There is no "requirement that a district court afford each of the section 3553(a) factors equal prominence," as
*570
"[t]he relative weight of each factor will vary with the idiosyncratic circumstances of each case."
United States
v.
Dixon
,
Finally, as to Rodríguez's general contention that "[t]he sentence imposed was longer than necessary to comply with the purposes of sentencing," this argument also fails. The district court offered a plausible rationale for the upward variance based substantially on Section 3553(a) factors. The sentence imposed, thirty-six months' imprisonment, was "within the wide universe of reasonable sentencing outcomes" and that ends the matter.
Ruiz-Huertas
,
III.
Affirmed .
These arrests were, in chronological order: a 2000 Puerto Rico controlled substances possession arrest; a 2000 Puerto Rico unlicensed firearm possession arrest; a 2005 Puerto Rico "conjugal threats" arrest; two 2009 Texas marijuana possession arrests; and a 2010 New York marijuana possession arrest.
In turn: "(A) to reflect the seriousness of the offense, to promote respect for the law, and to provide just punishment for the offense; (B) to afford adequate deterrence to criminal conduct; (C) to protect the public from further crimes of the defendant...."
Rodríguez's plea agreement contained a waiver of appeal provision, which was to be operative provided that he was sentenced according to the agreement's "terms, conditions, and recommendations." As Rodríguez correctly argues, the sentence imposed exceeded the sentence recommended in the plea agreement, and so he can appeal.
See, e.g.
,
United States
v.
Fernández-Cabrera
,
At oral argument, Rodríguez focused on the phrase "independent proof of conduct" in
Marrero-Pérez
, rather than "some greater indicia of reliability."
Beyond the departure/variance distinction, discussed
infra
,
Marrero-Pérez
involved a particular set of facts distinct from this case. In
Marrero-Pérez
, the past arrests recounted, "usually involving at worst trivial conduct," lacked corroborating evidence "set forth in undisputed portions of the PSR."
Here, in contrast, there were no
ex parte
submissions by the probation officer. The arrests mentioned by the district court here did not involve "trivial conduct." Corroborating evidence about consistent drug use was set forth clearly in the PSR and has never been disputed. Further, the district court did not make any explicit comment about Rodríguez's guilt based on arrests,
see
Despite these distinct facts, the result here is consistent with Marrero-Pérez .
One of the convictions, the second Texas marijuana conviction, was charged as a felony and involved possession of about twenty-six pounds of marijuana.
The record is not clear as to the reason for the dismissal of the conjugal threats charge, but the PSR states that it was dismissed, and the government stated (without objection) that further records from this arrest had been destroyed due to a timely motion by Rodríguez filed pursuant to Puerto Rico law.
"Plain error review requires us to reverse only where a lower court's error is clear or obvious in light of the prevailing law, but '
Cortés-Medina
held only that the law on this question [consideration of arrests] was unclear.' "
Rondón-García
,
This policy statement does not purport to address upward variances. And in
United States
v.
Martin
, we recognized that "[p]olicy statements issued by the Sentencing Commission ... normally are not decisive as to what may constitute a permissible ground for a variant sentence in a given case."
We do not suggest that only a bare arrest record, without more reliable explanation of or support for the underlying conduct and without consideration of the circumstances of disposition, would be a valid basis for an upward variance under Section 3553(a). That issue is not presented on the record before us here.
In discussing "protect[ing] the public from further crimes" and Rodríguez's "recidivism," the district court made no further reference to any of the arrests not leading to convictions, and so may well have been referring just to Rodríguez's multiple drug convictions and bank and wire fraud conviction.
Reference
- Full Case Name
- UNITED STATES, Appellee, v. José Francisco RODRÍGUEZ-REYES, Defendant, Appellant.
- Cited By
- 22 cases
- Status
- Published