United States Court of Appeals For the First Circuit

No. 19-2021

UNITED STATES,

Appellee,

v.

CARLOS HERNÁNDEZ-NEGRÓN,

a/k/a Once Dedos,

Defendant, Appellant.

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

[Hon. Pedro A. Delgado-Hernández, U.S. District Judge]

Before

Howard, Chief Judge, Kayatta, Circuit Judge, and Casper, District Judge.

Isabelle C. Oria Calaf for appellant. James I. Pearce, Appellate Section, Criminal Division, U.S. Department of Justice, with Julia M. Meconiates, Assistant United States Attorney, W. Stephen Muldrow, United States Attorney, and Mariana E. Bauzá-Almonte, Assistant United States Attorney, Chief, Appellate Division, on brief, for appellee.

December 17, 2021

 Of the District of Massachusetts, sitting by designation. Casper, District Judge. Defendant-Appellant Carlos

Hernández-Negrón ("Hernández") appeals his sentence of eighty-four

months, claiming that the district court erred by quashing

subpoenas issued to victims and by imposing a sentence Hernández

challenges as procedurally and substantively unreasonable.

Hernández also claims that the district court erred by not

crediting the time he served in pretrial detention for related

state charges that were subsequently dismissed. For the reasons

discussed below, we affirm the judgment.

I.

On December 6, 2017, Hernández was named in a single-

count federal indictment charging him with being a felon in

possession of a firearm in violation of

(g)(1) and

924(a)(2). The charge arose out of an armed home robbery which

took place in Cidra, Puerto Rico on May 7, 2016. Hernández was

brought into federal custody on December 11, 2017. At the time

of his arrest, Hernández had been in state custody on local charges

related to the May 7th robbery since June 29, 2017. Although

Hernández was detained under federal jurisdiction beginning on

December 11, 2017, he remained under the primary jurisdiction of

the state authorities until April 3, 2018, when the local charges

were dismissed due to speedy trial violations. Prior to

dismissal, the Superior Court of Caguas held a preliminary hearing

on November 9, 2017 and December 13, 2017 at which the two victims

- 2 - of the robbery, Joan Cintrón Rivera ("Cintrón") and her husband,

Ismael Fontánez Aponte ("Fontánez"), testified and were cross-

examined by counsel for Hernández. During these proceedings,

Cintrón testified, among other things, that Hernández "grabbed"

her by the neck of her shirt and threatened to "blow [her] up" if

she did not provide the combination to the safe in their home.

Jury selection for Hernández's federal trial was

scheduled to begin on August 16, 2018, with trial set to begin on

August 20, 2018. On August 16, 2018, Hernández pleaded guilty to

the federal charge pursuant to a straight plea, admitting only the

elements of the offense charged in the indictment. The United

States Probation Office ("Probation") prepared a Presentence

Report ("PSR"), which included the armed home robbery as part of

the offense conduct. The PSR calculated a base offense level

("BOL") of fourteen under U.S.S.G. § 2K2.1(a)(6), which applies

when a defendant is a prohibited person (i.e., a convicted felon)

and possesses a firearm. Probation also applied two additional

levels under U.S.S.G. § 2K2.1(b)(1)(A) because the offense

involved three or more firearms and four additional levels under

U.S.S.G. § 2K2.1(b)(6)(B) because the firearm was used or

possessed in connection with another felony offense (i.e., the

robbery). After applying a two-level reduction for acceptance of

responsibility, pursuant to U.S.S.G. § 3E1.1(a), and a one-level

reduction under U.S.S.G. § 3E1.1(b) for timely notifying

- 3 - authorities of his intention to plead guilty, the PSR calculated

a total offense level ("TOL") of seventeen. Based on the TOL of

seventeen and Hernández's Criminal History Category ("CHC") of II,

the PSR calculated the advisory guideline sentencing range ("GSR")

to be twenty-seven to thirty-three months.

Hernández objected to the PSR on several grounds.

Hernández argued, inter alia, that because he pleaded guilty only

to the elements of the firearm charge, the PSR wrongly assumed he

participated in the (uncharged) robbery. Hernández further argued

that the Confrontation Clause gives him a right to cross-examine

any witness whose testimony the government intended to use to

establish he was involved in the robbery. Accordingly, Hernández

subpoenaed Cintrón and Fontánez to testify at his sentencing, which

the government moved to quash. Hernández claimed that due process

required that the victims of the armed home robbery testify at the

sentencing because credibility would decide his sentence. The

district court granted the government's motion to quash the

subpoenas, and the sentencing hearing was held the following day

on September 11, 2019.

The government sought a sentence of one hundred twenty

months' imprisonment, while Hernández sought a twelve-month

sentence. At the sentencing hearing, the government stated that

it would prove the relevant conduct to support the sentencing

enhancements in the PSR. To that end, the government played

- 4 - security footage of the site of the robbery, and called Agents

Josian Rodríguez-Gonzalez ("Agent Rodríguez") and José Pedraza-

Ortiz ("Agent Pedraza") as witnesses. The district court

indicated that it had reviewed the transcripts of Cintrón's and

Fontánez's testimony at the state preliminary hearing that the

government had provided to the court. Agent Rodríguez testified

that he prepared a photo lineup to show to Cintrón as part of the

investigation, and that within two to three seconds of viewing the

lineup, Cintrón identified Hernández as the person who threatened

her during the robbery. Agent Pedraza, a lifelong resident of

Cidra, testified that he had known Hernández for more than twenty

years. During the investigation, Agent Pedraza was asked to view

the security footage of the exterior of the victims' residence

from the day of the robbery. The footage shows the perpetrators

arrive at the residence in a blue vehicle and enter the residence.

Later clips of the footage show the perpetrators place a safe box

in the blue vehicle, fire shots toward a nearby business, get back

into the car, and continue to fire shots as they flee the area in

the blue vehicle. The security footage also shows Fontánez

briefly approach the scene outside his residence before he retreats

back to the area of the nearby business. The end of the footage

shows Cintrón exit the residence as she is joined by Fontánez.

Agent Pedraza testified that he immediately recognized Hernández

as one of the perpetrators depicted in the security footage. For

- 5 - his part, Hernández challenged the reliability of Cintrón's

identification due to what he characterized as inconsistencies and

argued that the government failed to meet its burden of

establishing that he participated in the robbery.

Citing Cintrón's and Agent Pedraza's identifications

of Hernández specifically, the district court found that Hernández

participated in the armed home robbery. As to Cintrón's

identification, the Court cited her identification of Hernández at

the preliminary hearing in the state proceeding, which was made

without hesitation. The Court dismissed any inconsistencies that

Hernández sought to highlight in that testimony and concluded that

this did not detract from the identification. As to Agent

Pedraza's identification, the Court similarly noted the lack of

hesitancy in his identification of Hernández from the security

footage and other factors (which include having known him for over

twenty years). The court noted that the BOL for the offense was

fourteen and applied a two-level increase because the crime

involved three or more firearms and a four-level increase because

Hernández possessed the firearms in connection with another

felony. As to acceptance of responsibility, the court granted a

two-level, not three-level, reduction for same under § 3E1.1(a).

Accordingly, the court calculated the TOL to be eighteen. Based

on the TOL and a CHC of II, the advisory GSR was thirty to thirty-

seven months.

- 6 - Turning to the sentencing factors under

(a), the Court cited Hernández's personal history including

that the 41-year-old was a resident of Cidra, had one child,

attended school until the tenth grade, and although unemployed at

the time of his arrest, had previously owned two food trucks. The

Court cited his physical and emotional health, including an earlier

history of substance abuse until 2006. The Court also recited his

criminal history, noting, among other things, that this was his

seventh conviction and that his prior convictions had included

ones for robbery (in 1998, resulting in a sentence of eight years)

and attempted robbery (in 2004, resulting in a sentence of four

years). The Court also noted that after he committed the offense

in this case, he absconded from Puerto Rico and was not arrested

until June 2017 in Massachusetts, where he was charged as a

fugitive from justice and later extradited back to Puerto Rico.

Citing the seriousness of the offense in this case, and the need

to promote respect for the law and public protection, the court

concluded that a sentence above the advisory GSR was warranted and

sentenced Hernández to eighty-four months' imprisonment, three

years of supervised release, and a mandatory $100 special

assessment.

Hernández objected to the sentence as procedurally and

substantively unreasonable, arguing that the government failed to

prove by a preponderance of the evidence that Hernández

- 7 - participated in the robbery, and that the record did not support

the sentence imposed. Additionally, Hernández requested that he

receive credit for the time he spent in custody on the related

state charges for relevant conduct prior to being taken into

federal custody. Accordingly, the court ordered the parties to

submit briefs on the issue. In their respective memoranda,

Hernández and the government disagreed about whether he should

receive credit for time served in state custody but agreed that it

is the province of Bureau of Prisons ("BOP") to determine credited

time, and they requested amendment of the PSR to include the

relevant pretrial detention dates for such determination.

Subsequently, the district court ordered the PSR be amended to

reflect the relevant dates of pretrial detention (specifically,

the December 11, 2017 date that Hernández was transferred to

federal custody pursuant to writ of habeas corpus ad prosequendum;

and the date that the state charges were dismissed on April 3,

2018), and entered its judgment. This appeal followed.

II.

"We review criminal sentences imposed under the advisory

guidelines regime for abuse of discretion." United States v.

Flores-Machicote,

(1st Cir. 2013). Within this

framework, "we review issues of law de novo and findings of fact

for clear error." United States v. Dávila-Bonilla,

(1st Cir. 2020). Applying this standard, we must determine first

- 8 - that the district court committed "no significant procedural

error" which, for example, might include an improper calculation

of the GSR. Gall v. United States,

(2007). If

the sentencing was "procedurally sound," we turn to the

"substantive reasonableness of the sentence imposed" by "tak[ing]

into account the totality of circumstances, including the extent

of any variance from the Guidelines range."

III.

The district court's quashing of the subpoenas to

Cintrón and Fontánez did not violate Hernández's due process

rights. "At a sentencing hearing, neither the Federal Rules of

Evidence nor the Sixth Amendment right to cross-examination

apply." United States v. Berrios-Miranda,

(1st

Cir. 2019) (citing United States v. Bramley,

(1st

Cir. 2017)). Accordingly, a sentencing court may consider any

evidence with "sufficient indicia of reliability to support its

probable accuracy." Berrios-Miranda,

(quoting

United States v. Cintrón-Echautegui,

(1st Cir.

2010)). Still, the sentencing procedure "must comport with due

process demands and the parameters of Rule 32 of the Federal Rules

of Criminal Procedure."

Accordingly, a defendant may not be

sentenced upon information that is false or materially incorrect,

and "[a] defendant must be provided with a meaningful

opportunity to comment on the factual information on which his or

- 9 - her sentence is based," United States v. Rondón-García,

(1st Cir. 2018) (quoting United States v. Berzon,

(1st Cir. 1991)).

Here, it was disputed between the parties whether the

court could find, based on a preponderance of the evidence, that

Hernández possessed the firearm in connection with the robbery.

Hernández argues that he was deprived of his due process right to

confront witnesses when the district court quashed his subpoenas

to the victims. "It is the government's burden at sentencing to

prove sentencing enhancement factors by a preponderance of the

evidence, and a district court may base its determinations on 'any

evidence that it reasonably finds to be reliable.'" United States

v. Lacouture,

, 189–90 (1st Cir. 2016) (quoting United

States v. Almeida,

(1st Cir. 2014)). Regarding

its burden of proof as to the sentencing enhancements, the

government relied upon the prior testimony of both victims,

security footage, and the live testimony of Agents Rodríguez and

Pedraza. Even in the absence of a Sixth Amendment right to

confront witnesses at a criminal sentencing, Hernández had the

requisite meaningful opportunity to engage with the factual basis

for his sentence provided by Cintrón's and Fontánez's testimony.

The testimony, while not given at the sentencing, was given at the

state preliminary hearing, during which these witnesses were

subject to extensive cross-examination by Hernández's counsel.

- 10 - Moreover, Hernández did not propose to the district court any

material line of inquiry that had not already been explored with

these witnesses in the state proceedings. Hernández had equal

access to the transcript of the prior testimony, and he had a

meaningful opportunity at the sentencing to proffer arguments

regarding their reliability as witnesses and to cross-examine

Pedraza, who provided his own identification of Hernández, and

Rodríguez, who took the identification of Hernández from Cintrón.

Accordingly, the district court did not abuse its discretion when

it quashed Hernández's subpoenas.

IV.

Moreover, the upwardly variant sentence was both

procedurally and substantively reasonable. Hernández argues that

the government did not prove, by a preponderance of the evidence,

that he participated in the armed home robbery, and therefore, it

was procedurally unreasonable to apply the four-level sentence

enhancement under U.S.S.G. § 2K2.1(b)(6)(B) for the firearm being

possessed in connection with the felony robbery. This argument

is unavailing.

The district court did not clearly err when it applied

the additional four levels because there was an adequate factual

basis to find, by a preponderance of the evidence, that Hernández

participated in the May 7, 2016 armed home robbery. The district

court relied upon not only the eyewitness testimony from Cintrón

- 11 - connecting Hernández to the robbery, but also Agent Pedraza's

testimony that corroborated Cintrón's identification of Hernández.

This evidence is sufficient to prove, by a preponderance of the

evidence, that the firearm was used in connection with the robbery.

We thus conclude that the district court did not clearly err in

applying the four-level enhancement under U.S.S.G.

§ 2K2.1(b)(6)(B).

Relatedly, we also conclude that the court did not err

in applying the two-level enhancement for the involvement of three

or more firearms under U.S.S.G. § 2K2.1(b)(1)(A). Security

footage, together with eyewitness testimony from Fontánez,

adequately proved, by a preponderance of the evidence, that at

least three firearms were involved in the May 7th robbery.

Although not addressed expressly during the sentencing,

we further conclude that declining to grant Hernández the

additional one-level reduction pursuant to U.S.S.G. § 3E1.1(b) for

timely notifying authorities of his intention to plead guilty was

not clearly erroneous. Indeed, U.S.S.G. § 3E1.1(b) "is available

only to defendants who accept responsibility early enough to save

the government the time and expense of preparing for trial."

United States v. Garrasteguy,

(1st Cir. 2009).

This one-level reduction is available to a defendant who qualifies

for a two-level reduction under U.S.S.G. § 3E1.1(a), has an offense

level of 16 or above and "upon motion of the government" that

- 12 - defendant has "timely notif[ied] authorities of his intention to

enter a plea of guilty." U.S.S.G. § 3E1.1(b). Here, the

government noted that Hernández pleaded guilty one day before jury

selection was set to begin, and took the position below that

Hernández should not receive any reduction for acceptance of

responsibility under U.S.S.G. § 3E1.1(a) (for his failure to

accept responsibility for relevant conduct) or § 3E1.1(b) (for his

failure to notify the government timely of his intention to plead

guilty). As the district court allowed the two-level reduction

under U.S.S.G. § 3E1.1(a) and Hernández's appeal concerns only the

one-level reduction not given under U.S.S.G. § 3E1.1(b), we

confine our discussion to this latter issue.

Although Hernández objected to the government's position

below regarding no reduction for acceptance of responsibility, he

did not squarely object to the district court's declining to award

the one-level reduction under U.S.S.G. § 3E1.1(b). Accordingly,

we review only for plain error. United States v. Serrano-Mercado,

, 844–45 (1st Cir. 2015). Such argument fails on

plain error review, but even assuming arguendo that he had

preserved this claim, it also fails under the abuse of discretion

standard. The entry of Hernández's guilty plea one day before

jury selection was not timely under U.S.S.G. § 3E1.1(b), where

the timing of same did not permit the government to avoid trial

preparation as this provision contemplates. See United States v.

- 13 - Arango,

(1st Cir. 2007) (affirming denial of one-

level adjustment under U.S.S.G. § 3E1.1(b) where defendant pleaded

guilty five days before the start of trial); see also United States

v. Donovan,

, 1345–46 (1st Cir. 1993) (per curiam)

(concluding district court did not clearly err by denying

additional one-level reduction when defendant pleaded guilty on

the eve of the second trial date). By the time that Hernández

indicated that he would enter a guilty plea, the case had been set

for trial, and the government had filed several motions in limine,

responded to Hernández's motions in limine, designated an expert

witness, and filed proposed jury instructions and jury voir dire

questions. The timing of Hernández's plea did not allow the

government to avoid this necessary trial preparation or the

district court "to allocate [its] resources efficiently," another

consideration under U.S.S.G. § 3E1.1(b). Accordingly, the

district court did not err in declining to deduct a third level

for acceptance of responsibility from the TOL.

Having concluded that his sentence was procedurally

sound, we turn to Hernández's claim that his sentence is

substantively unreasonable. This argument also fails. The thirty

to thirty-seven-month GSR is "advisory" rather than mandatory,

and, accordingly, "the GSR is not controlling on the question of

the substantive reasonableness of a particular sentence." United

States v. Gates,

(1st Cir. 2013). Still, the

- 14 - Court must consider the GSR as part of its review of the

reasonableness of the sentence.

Here, we stated that the

district court had considered all the sentencing factors set forth

in

(a). "Such a statement is entitled to

significant weight." United States v. Santiago–Rivera,

(1st Cir. 2014) (citing United States v. Dávila–González,

(1st Cir. 2010)). More importantly, the district

court explained the reasons for the "steep upward variance" that

it imposed here. United States v. Díaz-Lugo,

(1st Cir. 2020).

As to the § 3553(a) factors other than the advisory GSR,

the district court noted that Hernández has a long criminal

history, involving multiple convictions and multiple terms of

imprisonment, and culminating in this armed home robbery.1 As the

district court also recited, after committing this crime,

Hernández absconded from justice for a year before he was

apprehended.2 Moreover, Hernández's commission of the crime of

1Given the details of Hernández's criminal record that the district court highlighted in explaining his sentence, "it is safe to say that the judge implicitly found that the defendant's criminal history score substantially under-represented" his past criminal acts. See United States v. Santiago-Rivera,

, 233 n.3 (1st Cir. 2014); see also United States v. Laboy- Nadal,

(1st Cir. 2021) (noting that "a variance analysis may 'echo' a departure consideration" (internal citation omitted)). 2To the extent that Hernández now objects to the district court's reliance upon this matter, he failed to object to such reliance below and, even on appeal, his failure to develop this - 15 - being a felon in possession of a firearm involved an armed home

robbery in which Hernández fired his weapon before fleeing the

scene. The district court expressly found that the nature of his

involvement in the robbery, which included violent "threat[s]" to

Cintrón and "reckless behavior" in discharging his weapon, made

Hernández's case different from the "typical felon in possession

case." See United States v. Bruno-Campos,

(1st

Cir. 2020); United States v. Guzman-Fernandez,

, 177-

78 (1st Cir. 2016). Although the eighty-four-month sentence

imposed by the district court is significantly higher than the

advisory GSR, the balance of Hernández's crime and the other

§ 3553(a) factors reasonably justified a higher sentence, even as

the district court did not impose the 120-month sentence, the

statutory maximum sentence, that the government recommended. 3

argument amounts to waiver. United States v. Zannino,

(1st Cir. 1990) (noting the "settled appellate rule that issues adverted to in a perfunctory manner, unaccompanied by some effort at developed argumentation, are deemed waived"). Even under plain error review, this claim fails where the undisputed record was that he was arrested in Massachusetts on June 29, 2017 and subsequently extradited to Puerto Rico on an outstanding fugitive arrest warrant, which, unlike United States v. Marrero- Pérez,

(1st Cir. 2019) (finding plain error where sentencing court relied upon multiple, prior arrests "without some greater indicia of reliability that the conduct underlying the arrest took place" or corroborating evidence of same), is sufficient basis for the district court's limited reference that he had "absconded from justice." 3 To the extent that Hernández intended to challenge the upward variance not just on the ground that it was substantively unreasonable, but also that it was procedurally unreasonable, this latter argument also fails. We recognize that the "farther the - 16 - Díaz-Lugo, 963 F.3d at 156–58. Therefore, we conclude that the

sentence imposed by the district court is substantively

reasonable, given all of the § 3553(a) factors.

V.

Having affirmed Hernández's sentence for all the reasons

discussed above, there is one remaining issue related to the record

submitted to the BOP for credit for time served for his prior state

imprisonment. "The Bureau of Prisons, and not the courts,

determines when a defendant's sentence starts and whether the

defendant should receive credit for any prior time spent in

custody." United States v. Montez-Gaviria,

, 700–01

(2d Cir. 1998); see United States v. Morales-Madera,

(1st Cir. 2003) (similar). Hernández conceded that it is for

the BOP, not the district court, to decide whether he should

receive credit for his state pretrial detention. To the extent

that Hernández has preserved any objection to the district court's

failure to credit his pretrial detention, such matter is for the

BOP, not the court, to resolve where, as here, Hernández's time in

state custody was for pretrial detention, governed by

, and not an undischarged term of imprisonment or anticipated

judge's sentence departs from the guidelines sentence . . . the more compelling the justification based on factors in section 3553(a) that the judge must offer." United States v. Smith,

(1st Cir. 2006) (omission in original) (quoting United States v. Dean,

(7th Cir. 2005)). For all of the reasons explained above, such argument is not persuasive here.

- 17 - state term of imprisonment, U.S.S.G. §§ 5G1.3, 5K2.23, as

Hernández concedes in his brief. See Morales-Madera,

.

Nevertheless, both parties agreed that the information

regarding the time Hernández spent in state custody should be

included in the PSR. The district court agreed and ordered that

the PSR be amended to reflect the relevant dates. Although

Hernández reports that the PSR has yet to be amended in this

fashion in accordance with the district court order, the district

court has already issued the order that the parties sought so that

the PSR (which already included the date of his arrest on the state

warrant, June 29, 2017) would also include the date he was brought

into federal custody, December 11, 2017, and the date the state

charges were dismissed, April 3, 2018, for the purposes of the BOP

calculating any additional credit for time served. Accordingly,

no further action is warranted by this Court.

VI.

For the foregoing reasons, we affirm Hernández's

judgment.

- 18 -