United States Court of Appeals For the First Circuit

No. 19-1622

UNITED STATES OF AMERICA,

Appellee,

v.

JORGE L. MIRANDA-CARMONA,

Defendant, Appellant.

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

[Hon. Francisco A. Besosa, U.S. District Judge]

Before

Lipez, Kayatta, and Barron, Circuit Judges.

José Luis Novas Debién, for appellant. David C. Bornstein, Assistant United States Attorney, with whom W. Stephen Muldrow, United States Attorney, Mariana E. Bauzá- Almonte, Assistant United States Attorney, Chief, Appellate Division, and Thomas F. Klumper, Assistant United States Attorney, Senior Appellate Counsel, were on brief, for appellee.

June 10, 2021 BARRON, Circuit Judge. Jorge L. Miranda-Carmona

("Miranda") challenges his 84-month prison sentence for possessing

with intent to distribute cocaine base in violation of

(a). He bases this challenge on what he contends was the

District Court's error in applying the "intervening arrest" rule

in § 4A1.2(a)(2) of the United States Sentencing Guidelines

("Guidelines") when determining his criminal history category.

Because we agree with the government that Miranda invited any error

on that score, we affirm.

I.

On December 20, 2017, a federal grand jury in the

District of Puerto Rico returned a six-count indictment against

Miranda. Miranda pleaded guilty pursuant to a plea agreement on

January 31, 2019 to Count One of the indictment. That count

charged him with possessing with intent to distribute cocaine base

in violation of

(a). The remaining five counts

were later dismissed.

Following the guilty plea, the United States Probation

Office prepared a presentence investigation report ("PSR").1 The

PSR assigned Miranda a criminal history score of 11 under the

1We refer here to an amended version of the PSR that was finalized on May 30, 2019, which was materially identical to a previously amended version of the PSR that was finalized on April 22, 2019.

- 2 - Guidelines. That score translated to a criminal history category

of V. See U.S.S.G. ch. 5, pt. A (sentencing table).

To calculate Miranda's criminal history score, the PSR

relied in part on § 4A1.1(a) of the Guidelines. That guideline

provides that 3 criminal history points are to be assigned to a

defendant "for each prior sentence of imprisonment exceeding one

year and one month." U.S.S.G. § 4A1.1(a). Based on that

guideline, the PSR assigned 3 of the 11 points it assigned to

Miranda based on his prison sentence of one year and nine months

for his June 4, 2013 Puerto Rico conviction of one count of

domestic abuse in the fourth degree that stemmed from his December

16, 2012 violation of Article 3.1 of Puerto Rico Domestic Violence

Law 54,

. The PSR then assigned

another 3 of the 11 points that it assigned to Miranda based on

his concurrent prison sentence of one year and nine months for his

June 4, 2013 Puerto Rico conviction of one count of violating a

protective order that stemmed from his January 10, 2013 violation

of Article 3.1 of Puerto Rico Domestic Violence Law 54.2

Miranda thereafter submitted a written objection to the

PSR. He contended in it that the PSR, in calculating his criminal

history score, wrongly assigned a total of 6 points based on the

The information charging Miranda with this protective order 2

offense referred to it as a violation of "Article 2.8 of Law 54," but his judgment of conviction indicated that this offense had been "reclassified" as a violation of Article 3.1.

- 3 - concurrent sentences imposed for these two prior convictions, when

it should only have assigned a total of 3 points as a result of

those sentences. Miranda relied for that contention on

§ 4A1.2(a)(2) of the Guidelines. That guideline provides that,

for purposes of § 4A1.1(a), "sentences . . . imposed on the same

day" should be treated "as a single sentence" unless "the sentences

were imposed for offenses that were separated by an intervening

arrest," and that offenses are "separated by an intervening arrest"

when "the defendant is arrested for the first offense prior to

committing the second offense." U.S.S.G. § 4A1.2(a)(2).

Miranda did not dispute in his written objection to the

PSR that he had received concurrent sentences "exceeding one year

and one month," id. § 4A1.1(a), for each of the two convictions at

issue. But, he contended, the concurrent sentences for those two

convictions had been imposed on the same day, June 4, 2013, and

"there was no intervening arrest" between the date that he

committed the domestic abuse offense underlying the first

conviction (December 16, 2012) and the date that he committed the

protective order offense underlying the second conviction (January

10, 2013). In fact, Miranda asserted in his written objection to

the PSR that he had not been arrested for either the domestic abuse

offense or the protective order offense. Accordingly, he

contended, he could not be assigned 3 criminal history points for

each of these concurrent sentences. See U.S.S.G. § 4A1.2(a)(2)

- 4 - ("For purposes of applying § 4A1.1(a) . . . if prior sentences are

treated as a single sentence, use [only] the longest sentence of

imprisonment if concurrent sentences were imposed.").

Miranda did acknowledge in pressing this contention that

a criminal "complaint[] was filed against him" and a "protective

order was imposed" after, "[o]n December 16, 2012, [he] was

involved in a domestic dispute with his then partner." But, he

contended, no "arrest" within the meaning of the guideline had

taken place, as "he was brought to court without an arrest warrant"

after he committed the domestic abuse offense. Furthermore,

Miranda argued, even though "[o]n January 10, 2013, [he] sent his

partner a letter, which was in violation of the protective order,"

and an "additional charge was brought against him on January 23,

2013 for the letter" after which "Miranda appeared in court and

bail was set," "again no arrest was ordered or conducted" after he

committed the protective order offense.

A sentencing hearing was then held on May 2, 2019. In

advance of that hearing, the Probation Office filed an addendum to

the PSR that contained a response to Miranda's written objection

to it. The addendum stated that although "[o]n December 16, 2012,

Mr. Miranda was brought [to court] without an arrest warrant," he

was nevertheless "arrested by law enforcement (without a warrant)"

as he was "Mirandized and appeared before a judge who determined

probable cause for his arrest." Subsequently, the addendum stated,

- 5 - "[o]n January 10, 2013, [Miranda] engaged in the conduct"

underlying the second offense and "[a]gain, Mr. Miranda was taken

into custody without an arrest warrant and later appeared before

a judge." The addendum then concluded that Miranda "was arrested

for purposes of USSG § 4A1.2(a)(2), prior to engaging in the second

offense," and, "[c]onsequently, his criminal history score was

correctly calculated at eleven (11)."

During the May 2, 2019 sentencing proceeding, Miranda's

counsel3 once again asserted that Miranda had not been arrested in

connection with either of the offenses underlying the two

convictions that resulted in the concurrent sentences and thus

that the intervening arrest rule in § 4A1.2(a)(2) did not apply.

Accordingly, Miranda's counsel once again argued, only a total of

3 criminal history points could be assigned to Miranda on account

of the concurrent prison sentences imposed on the same day for the

convictions he received for those two offenses.

But, during this same sentencing proceeding, Miranda's

counsel also appeared to suggest that the relevant question for

purposes of applying the intervening arrest rule in this guideline

in his case was not whether there had been any arrest in connection

with the first offense but whether Miranda was arrested after

committing the second offense. In particular, although Miranda's

3 We note that Miranda's counsel on appeal is not the same attorney who represented Miranda before the District Court.

- 6 - counsel first asserted at this sentencing proceeding that Miranda

was "not arrested" in connection with the "domestic dispute" that

occurred on December 16, 2012, his counsel subsequently

acknowledged upon questioning by the District Court that, after

this "domestic dispute," Miranda "was Mirandized, and he went

through [a judicial probable cause determination,] and he was

placed on bond." Miranda's counsel then continued: "if you take

a look at the [second offense involving the protective order

violation] where [Miranda] . . . wrote a letter, he is actually

-- his address is listed as at Bayamón," a correctional facility

in Puerto Rico -- which meant, counsel argued, that Miranda "was

actually in custody when the letter was written and then [he was]

brought [into court]. That doesn’t constitute an arrest under

[§] 4A1.2(a)(2)."

At that point during the hearing, the District Court

interjected: "Isn't the first arrest the intervening arrest?"

Miranda's counsel responded: "No, no, no. [There's an intervening

arrest] only if, like, . . . let's say you sell drugs, you are

given bond, you are out on bond and then they arrest you for

selling drugs again. . . . But if you look at the documents here,

it says that . . . he was detained at [the] Bayamón" correctional

facility when he committed the second offense and "that he was

brought without an arrest warrant to the court" after he was

charged with committing it.

- 7 - The District Court then decided to continue the

sentencing hearing so that it could review additional documents

related to Miranda's prior convictions that had not yet been

translated into English. The District Court also stated: "I think

I will be in a better position to see what it is that [Miranda's

counsel is] arguing . . . once I take a look at the documents and

listen to" further argument from Miranda's counsel as well as from

"the government -- [as] the government hasn’t argued yet."

When the sentencing proceeding resumed on May 29, 2019,

Miranda's counsel contended for the first time that Miranda had,

in fact, been arrested for the first offense -- involving domestic

abuse -- on the same day that he had committed it (December 16,

2012). Specifically, Miranda's counsel stated at the reconvened

hearing: "Miranda had a domestic violence incident with his ex-

partner . . . . On December 16th, 2012, he is arrested. He is

taken to Bayamón where he is in custody." (emphasis added). But,

Miranda's counsel proceeded to argue that Miranda could not have

been "arrested" for the second offense involving the protective

order violation:

He is incarcerated in Bayamón, and then he writes his wife a letter . . . about three weeks later on January 10th, 2013. He wasn’t supposed to communicate with his wife. So they bring him for -- to state court without an arrest warrant. It seems that the state marshals bring him. . . . [T]he fact that the marshals bring someone to court does not necessarily constitute an arrest for purposes

- 8 - of [§] 4A1.2. . . . It's not a restraint on his liberty. He was already restrained. He was already incarcerated. . . . So we would say that, Your Honor, this is not an intervening arrest. This is just the way things are processed at the state court, given the way he was incarcerated.

(emphasis added).

Thus, Miranda's counsel contended, because Miranda had

not been "arrested" for the second offense, the concurrent one-

year-and-nine-month prison sentences that had been imposed on the

same day for each of the convictions resulting from these offenses

should be "counted as a single sentence for a total of 3 points."

The District Court rejected Miranda's contention and

determined that there was an "intervening arrest" separating the

offense underlying the domestic abuse conviction and the offense

underlying the protective order conviction for purposes of

§ 4A1.2(a)(2). The District Court then counted the concurrent

one-year-and-nine-month prison sentences that Miranda had received

separately for purposes of § 4A1.1(a), which led it to agree with

the PSR's determination that a total of 6 rather than 3 points

should be assigned to Miranda for those sentences and thus to agree

that his criminal history points totaled 11 rather than 8, such

that his criminal history category was V rather than IV.

The District Court at that point proceeded to calculate

Miranda's total offense level, which it determined was 23. Having

determined that Miranda's criminal history category was V, the

- 9 - District Court calculated Miranda's Guidelines Sentencing Range to

be 84 to 105 months of imprisonment.

The District Court acknowledged that, pursuant to the

plea agreement, both the government and Miranda were recommending

a statutory-minimum sentence of 60 months' imprisonment. The

District Court determined, however, that the parties' recommended

sentence "does not reflect the seriousness of the offense, does

not promote respect for the law, does not protect the public from

further crimes by Mr. Miranda, and does not address the issues of

deterrence and punishment." The District Court then imposed an

84-month prison sentence to be followed by 5 years of supervised

release.

Judgment was entered on May 29, 2019, and Miranda timely

appealed on June 5, 2019.

II.

On appeal, Miranda challenges the District Court's

determination that there had been an "intervening arrest" between

his commission of the two offenses at issue and thus its assignment

of 3 criminal history points to him for each of the concurrent

sentences that were imposed on the same day in consequence of his

commission of those offenses. In pressing this contention, Miranda

argues that it does not matter whether he was arrested for the

offense underlying the second of the two convictions for which he

received the concurrent sentences -- namely, the protective order

- 10 - offense that he committed on January 10, 2013. He contends that

is so because any arrest for that offense could not qualify as an

"intervening arrest" under § 4A1.2(a)(2), given that it

necessarily would have occurred after the commission of the second

offense and so could not be an "intervening" one. See U.S.S.G.

§ 4A1.2(a)(2) ("Prior sentences always are counted separately if

the sentences were imposed for offenses that were separated by an

intervening arrest (i.e., the defendant is arrested for the first

offense prior to committing the second offense)." (emphasis

added)).

The government does not dispute that an arrest that

occurred for the January 10, 2013 protective order offense could

not qualify as an "intervening arrest" within the meaning of the

relevant guideline. But, the government contends, Miranda cannot

now challenge his sentence on the ground that there was no arrest

for his December 16, 2012 domestic abuse offense, and thus no

"intervening arrest" between the two offenses. And that is so

because, according to the government, Miranda "invited" the

District Court to find that such an arrest -- which even Mirada

now concedes on appeal could, if it occurred, qualify as an

"intervening arrest" -- in fact did occur, by virtue of his

counsel's express representation to that effect at the May 29,

2019 sentencing hearing. We agree.

- 11 - As we have explained, and as the government points out,

Miranda's counsel stated at the May 29, 2019 sentencing hearing

that "Miranda had a domestic violence incident with his ex-

partner . . . . On December 16, 2012, he is arrested. He is taken

to Bayamón where he is in custody." (emphasis added). Thus,

through his counsel at that hearing, Miranda invited the District

Court to find that an arrest occurred that Miranda does not now

dispute would, if it occurred, qualify as an "intervening arrest"

under § 4A1.2(a)(2). Indeed, Miranda's counsel's subsequent

argument to the District Court -- that Miranda could not have been

"arrested" for the second offense in part because he already had

been "arrested" and was "in custody" for the first offense -- was

predicated on the District Court making that finding. Accordingly,

Miranda may not now argue on appeal that whether he was arrested

for the second offense is "irrelevant," and that the District Court

lacked a basis for concluding that there had been no such arrest

in connection with the first offense.4 See United States v. Rivera-

Ruperto,

, 431 n.10 (1st Cir. 2017) ("[A] party cannot

concede an issue in the district court and later, on appeal,

attempt to repudiate that concession and resurrect the issue. To

hold otherwise would be to allow a litigant to lead a trial court

4 Miranda's assertion on appeal that it was "the Government [that] directed the [intervening arrest] inquiry to the January 10, 2013" protective order offense is wholly without record support.

- 12 - down a primrose path and later, on appeal, profit from the invited

error." (alteration in original) (quoting United States v. Gates,

(1st Cir. 2013))); cf. McPhail v. Municipality of

Culebra,

(1st Cir. 1979) ("A party may not

'sandbag' his case by presenting one theory to the trial court and

then arguing for another on appeal.").

III.

The sentence is affirmed.

- 13 -