United States Court of Appeals For the First Circuit

No. 18-2010

UNITED STATES OF AMERICA,

Appellee,

v.

HERI E. BRUNO-CAMPOS,

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF PUERTO RICO

[Hon. Juan M. Pérez-Giménez, U.S. District Judge]

Before

Kayatta, Selya, and Barron, Circuit Judges.

Raúl S. Mariani Franco on brief for appellant. W. Stephen Muldrow, United States Attorney, Mariana E. Bauzá- Almonte, Assistant United States Attorney, Chief, Appellate Division, and Antonio L. Pérez-Alonso, Assistant United States Attorney, on brief for appellee.

October 22, 2020 SELYA, Circuit Judge. Particularly when prosecuting

criminal cases, government attorneys must take care to turn square

corners: among other things, they must stick to the facts and

reasonable inferences therefrom, abjuring speculation and surmise.

See United States v. Kilmartin,

(1st Cir. 2019)

("The prosecution — which has available to it the immense resources

of the federal government — possesses a significant advantage in

criminal cases, and there seldom is a good reason for a prosecutor

to push the envelope of that advantage."), cert. denied,

(2020). This sentencing appeal offers an example of a

prosecutor who strayed beyond these boundaries. In the end,

though, defendant-appellant Heri E. Bruno-Campos fails to link the

prosecutor's conjecture to the challenged sentence and also fails

to identify any other cognizable sentencing error. Consequently,

we reject his appeal.

I. BACKGROUND

We briefly rehearse the relevant facts and travel of the

case. Where, as here, a defendant appeals a sentence imposed

following a guilty plea, "we draw the facts 'from the change-of-

plea colloquy, the unchallenged portions of the presentence

investigation report (PSI Report), and the record of the

disposition hearing.'" United States v. Miranda-Díaz,

(1st Cir. 2019) (quoting United States v. Dávila-González,

(1st Cir. 2010)).

- 2 - On the evening of November 1, 2017, the San Juan

Intelligence Division of the Puerto Rico Police received

confidential information that individuals in a gray Hyundai were

on their way to the Vista Hermosa Public Housing Project to murder

a named individual. In response, agents were dispatched to the

vicinity of the housing project in unmarked vehicles. While the

agents were on the scene, a white Kia nearly collided with an

unmarked police vehicle. The agents learned that the white Kia

had been reported stolen a week earlier and proceeded to stop it.

As the Kia came to a halt, a passenger exited the vehicle

carrying a gun. The passenger was arrested, and the agents took

from his person a .40 caliber Glock pistol loaded with a high-

capacity magazine containing twenty-two rounds of ammunition. The

pistol had an attached "chip" that allowed it to fire

automatically. From this passenger, the agents also recovered

another high-capacity magazine containing an additional twenty-

two rounds of ammunition and a thirteen-round magazine loaded with

eleven rounds.

Next, the agents proceeded to arrest the driver of the

vehicle (the defendant). From inside the vehicle, they recovered

another Glock pistol loaded with a high-capacity magazine

containing thirty rounds of ammunition. This firearm, too, was

modified to enable automatic fire. To complete the picture, the

agents found another high-capacity magazine loaded with twenty-

- 3 - nine rounds of ammunition in the defendant's pocket and two more

fully loaded fifteen-round magazines under the driver's seat.

A federal grand jury sitting in the District of Puerto

Rico charged the defendant with illegal possession of a machine

gun. See

(o). After initially maintaining his

innocence, the defendant reversed his field and entered a straight

guilty plea on May 23, 2018. The probation department filed a PSI

Report and subsequently filed amended versions of it.1 The final

version of the PSI Report recommended a guideline sentencing range

(GSR) of forty-one to fifty-one months.

For reasons that are not readily apparent, the defendant

initially filed a sentencing memorandum that sought a sixty-month

prison sentence — a sentence above the apex of the GSR. In short

order, though, he filed a revised sentencing memorandum, urging a

sentence of forty-one months' imprisonment. At the disposition

hearing, defense counsel renewed the request for a forty-one month

term of immurement. The government disagreed, seeking an upwardly

variant sentence of sixty months' imprisonment. In support, the

prosecutor explained that "even though we have no evidence,

obviously, to determine if the defendant and the codefendant were

the ones that were on their way to kill an individual . . . the

1 The original version of the PSI Report did not account for certain of the defendant's prior convictions. The amended versions of the PSI Report chronicled his entire criminal history and recommended his placement in Criminal History Category III.

- 4 - amount of ammunitions and the type of firearms obviously, at least,

would tell us that they were up to no good."

Nor did the prosecutor stop there. She added that "[i]t

appears that the defendants both were on their way possibly to

harm somebody, because there is no other reason as to why to have

that amount of ammunition, magazines, and particularly those

firearms modified to fire as machine guns."

The district court adopted the guideline calculations

reflected in the final version of the PSI Report. It proceeded to

weigh the sentencing factors limned in

(a).

Pertinently, it explored the defendant's criminal history and

personal characteristics at great length and remarked the serious

purport of the "substantial amounts of ammunition" with which the

defendant was apprehended. In the end, the court concluded that

"the defendant's likelihood of recidivism warrants the protection

of the community from further crimes from the defendant" and,

therefore, an upwardly variant sixty-month term of immurement

comprised a sentence that was both "just and not greater than

necessary." This timely appeal followed.

II. ANALYSIS

Review of a "criminal defendant's claims of sentencing

error involves a two-step pavane." Miranda-Díaz,

.

First, we examine any claims of procedural error. See

If the

sentence passes procedural muster, we then proceed to address any

- 5 - challenge to its substantive reasonableness. See

In this

instance, the defendant proffers claims of both procedural and

substantive error. We address those claims sequentially.

A. Claims of Procedural Error.

We ordinarily review claims of procedural error for

abuse of discretion. See United States v. Rivera-Morales,

(1st Cir. 2020). Here, however, the defendant's

procedural claims were not seasonably raised in the district court,

and review is for plain error. See United States v. Duarte,

(1st Cir. 2001). Plain-error review requires four

showings: "(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."

"The proponent

of plain error (here, the defendant) must carry the devoir of

persuasion as to each of these four components." Kilmartin,

.

1. Double Counting. The defendant first asserts that

the district court committed procedural error by double counting

data points already factored into the formulation of the GSR.

Specifically, he asserts that the sentencing court premised its

decision to vary upward on two factors already accounted for by

the guidelines: the defendant's possession of a fully automatic

- 6 - handgun with "substantial amounts of ammunitions" and his criminal

history.

Although the double counting of sentencing factors may

sometimes constitute error, the defendant's assertions miss the

mark. We have said before, and today reaffirm, that with respect

to sentencing, "double counting is a phenomenon that is less

sinister than the name implies." United States v. Zapata,

(1st Cir. 1993). After all, "[m]ultiple sentencing

adjustments may derive from 'the same nucleus of operative facts

while nonetheless responding to discrete concerns.'" United

States v. Fiume,

(1st Cir. 2013) (quoting United

States v. Lilly,

(1st Cir. 1994)). It follows that

a sentencing court may rely on a factor that is already included

in the calculation of the GSR to impose an upward or downward

variance as long as the court "articulate[s] specifically the

reasons that this particular defendant's situation is different

from the ordinary situation covered by the guidelines

calculation." United States v. Zapete-Garcia,

(1st Cir. 2006).

In United States v. Díaz-Lugo, we held that the

sentencing court did not err in predicating the defendant's

upwardly variant sentence on the fact that the defendant was caught

with multiple machine guns and four high-capacity magazines

because the relevant sentencing guideline, USSG §2K2.1(a)(4)(B),

- 7 - contemplated only the possession of one machine gun. See

(1st Cir. 2020). So, too, the defendant had committed

multiple violations of his probationary and supervised release

conditions, but the relevant guideline provision, section

4A1.1(d), accounted for only one such violation. See

Since

such idiosyncratic facts "remove[d] this case from the heartland

of the applicable guideline provisions," we discerned neither

error nor abuse of discretion.

The case at hand is cut from much the same cloth. The

facts of record evince conduct beyond that contemplated by the

relevant guideline provisions. The defendant was arrested while

driving a vehicle containing several weapons, with a substantial

amount of ammunition packed into four separate magazines, two of

which were high-capacity magazines. By contrast, the relevant

guideline provision is triggered by the possession of a single

"semiautomatic firearm that is capable of accepting a large

capacity magazine." USSG §2K2.1(a)(4)(B). For present purposes,

that guideline calculation was supplemented by a two-level

enhancement because the defendant was apprehended with three

firearms. Nothing in either the guideline provision or the

enhancement, however, accounted for the possession of more than

one machine gun, substantial quantities of ammunition, and/or

multiple high-capacity magazines. See USSG §2K2.1(a)(4)(B); USSG

§2K2.1(b). The sentencing court made pellucid its concerns about

- 8 - the seriousness of such firepower and such substantial quantities

of ammunition, and those well-founded concerns sufficed to remove

this case from the heartland of the relevant guidelines. See Díaz-

Lugo,

. There was no error, plain or otherwise.

In a related vein, the defendant submits that the

sentencing court erred when it considered his "prior brushes with

the law." In his view, his prior convictions were fully accounted

for as the building blocks for the construction of his criminal

history category.

Once again, the sentencing court specifically

articulated why it believed the defendant's situation was

sufficiently distinctive to warrant a variance. In particular, it

emphasized the rapidity with which the defendant repeatedly

violated the law. The court noted that this was the defendant's

"fourth known arrest and conviction;" that one of those convictions

occurred while the defendant was imprisoned; and that shortly after

his release from prison, "it only took [the defendant] three months

to again violate the law." In a nutshell, the court articulated

why the temporal aspect of the defendant's criminal history

distinguished his case from the mine-run of cases covered by the

relevant guideline provision. There was no error.

2. Contamination of the Record. The defendant mounts

a second claim of procedural error. He contends that the district

court erred when it "based" its upwardly variant sentence on the

- 9 - "need to protect the community from further crimes" because the

court relied on a "record that had been contaminated with

inflammatory and baseless allegations." Specifically, he contends

that the "court assumed that [he] was a dangerous individual based

on the manipulated, false, inflammatory and incorrect factual

allegations made by the government" concerning his potential

participation in a plot to commit murder.2 Because the defendant

did not object below to this claimed procedural bevue, we review

this challenge under the demanding plain-error standard. See

Duarte,

; see also United States v. López,

(1st Cir. 2020) ("Review for plain error is not appellant-

friendly.").

As an initial matter, we agree with the defendant that

the prosecutor's quoted comments — to the extent that they

suggested that the defendant was involved in a murder plot — lacked

record support.3 The prosecutor's conjecture was nothing more than

2 To the extent that the defendant claims that he had no prior notice of the government's intention to discuss the alleged murder plot at the disposition hearing and, thus, was "blindsided," his claim is insubstantial. After all, the murder plot was referred to in both the affidavit supporting the complaint and in the plea colloquy. 3 The prosecutor's related comment, suggesting that the defendant and his compatriot "were up to no good," is less objectionable. That comment strikes us as falling within the universe of reasonable inferences that might be drawn from the disclosed facts. Cf. United States v. Hernández,

(1st Cir. 2000) (explaining that "[p]rosecutors are free to ask the jury to make reasonable inferences from the evidence submitted at trial").

- 10 - guesswork and, thus, was misplaced. See United States v. Madsen,

(1st Cir. 2016). Moreover, the prosecutor should

have known better: we have long warned about the dangers of such

prosecutorial overreach. See, e.g., United States v. Tierney,

, 389 n.9 (1st Cir. 1985).

In an attempt to excuse the prosecutor's conjecture, the

government suggests that she mentioned the supposed murder plot

only as "background information" to explain "why the officers were

patrolling the area." This suggestion reads the record through

rose-colored glasses: for aught that appears, the prosecutor did

not merely provide background information but, rather, speculated

that the defendant was the one involved in the alleged murder plot.

At sentencing — as at other stages of a criminal case — prosecutors

must hew to the record and not indulge in rank speculation. See

Madsen,

. This requirement is unwavering, and there

is no exception for "background information."

To be sure, the government also notes that the prosecutor

acknowledged that "no evidence" existed that the defendant and his

compatriot were actually involved in the supposed murder plot.

But this caveat, while softening the blow, did not give the

government license to speculate about unfounded facts. Cf.

Had the prosecutor's statements been relied upon by the sentencing

court, that reliance would have been problematic. See United

States v. Flete-Garcia,

(1st Cir. 2019) (explaining

- 11 - that due process protects defendants by safeguarding against

sentences that are predicated on information that is "false or

materially incorrect" (quoting United States v. Curran,

(1st Cir. 1991))).

The Seventh Circuit has had occasion to examine an

analogous claim of prosecutorial misconduct. See United States v.

Stinefast,

(7th Cir. 2013). There, the

appellant argued that the prosecutor engaged in misconduct during

the sentencing hearing by referring to the appellant's damaging

and inadmissible statements to the government's expert.4

The

court of appeals held that the appellant could not show plain error

because, even if the statements were improper, the appellant was

not prejudiced inasmuch as the district court did not "take the

prosecutor's problematic statements into account in imposing

sentence."

.

So it is here. Even though we readily assume that the

prosecutor's gratuitous conjecture, unanchored in the record, was

improper, we cannot conclude that the defendant was prejudiced

(and, thus, that the error was plain). We explain briefly.

4 At the disposition hearing in Stinefast, the prosecutor "wanted to put forth on the record" that "[the court was] not considering as part of [its] sentence" information "regarding a psychosexual evaluation of [the appellant]" by the government's expert that it had heard "months and months and months ago[.]"

. As was the case here, the extra-record comments were unfavorable.

- 12 - The third element of the plain-error standard "requires

that the claimed error must be shown to have affected the

appellant's substantial rights." United States v. Bramley,

(1st Cir. 2017). In other words, the proponent of plain

error must demonstrate "a reasonable probability that, but for the

error, the outcome would have been different."

Here, the

defendant has not shown that the prosecutor's comment, though

inappropriate, affected his substantial rights.

The decisive fact is that the record contains no

indication that the sentencing court gave the slightest weight to

the inappropriate comment. Indeed, the court made no reference at

all to that comment during the disposition hearing. The most

logical inference, then, is that the court found the comment

irrelevant to the fashioning of the defendant's sentence, cf.

United States v. Lozada-Aponte,

(1st Cir. 2012)

(suggesting that a sentencing judge's failure to mention facts

advanced by a party suggests that the facts were "unconvincing"),

and relied instead on the considerations which it expressly

articulated. And this inference is consistent with the suggestion

in the record that the court was aware that the government had no

proof linking the defendant to any murder plot. Given these facts,

plain error is plainly lacking.

- 13 - B. Claim of Substantive Unreasonableness.

This brings us to the defendant's assault on the

substantive reasonableness of his sixty-month sentence.

Specifically, he argues that the upwardly-variant sentence creates

an "unreasonable sentencing disparity." And because the sentence

is above the GSR, he says that it is "simply unfair under the

totality of the circumstances."

We review challenges to the substantive reasonableness

of a sentence for abuse of discretion. See Holguin-Hernandez v.

United States,

(2020); Díaz-Lugo,

. "In the sentencing context, 'reasonableness is a protean

concept.'" United States v. Clogston,

(1st Cir.

2011) (quoting United States v. Martin,

(1st Cir.

2008)). Thus, "[t]here is no one reasonable sentence in any given

case but, rather, a universe of reasonable sentencing outcomes."

Our task, then, is "to determine whether the sentence falls

within this broad universe." Rivera-Morales,

.

We start with first principles: "[t]ypically, a

sentencing court has a more intimate knowledge of a particular

case than does an appellate court." Díaz-Lugo,

.

Consequently, a district court's discretionary determination as to

the length of a particular sentence is due significant deference.

See United States v. Madera-Ortiz,

(1st Cir. 2011).

"As long as we can discern 'a plausible sentencing rationale' which

- 14 - reaches 'a defensible result,' the sentence will be upheld."

at 31 (quoting Martin,

).

When — as in this case — the district court imposes a

variant sentence, an adequate explanation is required. See United

States v. Sepúlveda-Hernández,

(1st Cir. 2016).

But even though "a sentencing court's obligation to explain a

variance requires the court to offer a plausible and coherent

rationale . . . it does not require the court to be precise to the

point of pedantry." United States v. Del Valle-Rodríguez,

(1st Cir. 2014). Viewed through this prism, we think

that the court below provided a sufficient rationale for the

sentence imposed.

To begin, the sentencing court clearly articulated why

it believed this case differed from the mine-run. In this regard,

the court noted that the defendant had a lengthy criminal history,

which was temporally proximate to the offense of conviction.

Additionally, the court pointed to the defendant's high risk of

recidivism, which "warrant[ed] the protection of the community

from further crimes from the defendant[,]" and the "substantial

amounts of ammunition" with which the defendant was found. These

considerations were directly relevant to the sentencing calculus,

making the court's sentencing rationale eminently plausible.

Equally as important, the sixty-month sentence

represented a defensible outcome. While the sentence constitutes

- 15 - a nine-month upward variance from the top of the GSR, the mere

fact that a sentence varies from the GSR does not, without more,

render it substantively unreasonable. See Madsen,

; United States v. Flores–Machicote,

(1st Cir.

2013). Here, there is no "more."

The sentencing court carefully considered and thoroughly

reviewed the pertinent

(a) factors. The court

proceeded to determine that an above-the-range sentence was "just

and not greater than necessary" to afford condign punishment. It

then closed the loop by choosing a relatively modest upward

variance: nine months. This modest variance was well within the

ambit of the court's discretion.

We are left, then, with only the defendant's

remonstrance that his sixty-month term of immurement creates an

"unreasonable sentencing disparity." But this remonstrance never

gets out of the starting gate. Having made the allegation, the

defendant does nothing to put any meat on its bare bones.

"We have admonished before that parties act at their

peril in leaving 'the court to do counsel's work,' and we are

reluctant to reward such tactics." Flete-Garcia,

(quoting United States v. Zannino,

(1st Cir. 1990)).

Counsel has an obligation not merely to make claims, but to develop

them. See Zannino,

. Given the defendant's failure

- 16 - to develop any argument in support of his clam of disparity, we

consign that claim to the scrap heap.

That ends this aspect of the matter. The district

court's plausible sentencing rationale, coupled with its easily

defensible choice of a sixty-month sentence, combined to blunt the

defendant's claim of substantive unreasonableness.

III. CONCLUSION

We need go no further. For the reasons elucidated above,

the judgment of the district court is

Affirmed.

- 17 -