United States Court of Appeals For the First Circuit

Nos. 21-1915 21-1917 UNITED STATES OF AMERICA,

Appellee,

v.

JUAN DANIEL SIERRA-JIMÉNEZ,

Defendant, Appellant.

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

[Hon. Raúl M. Arias-Marxuach, U.S. District Judge]

Before

Gelpí, Montecalvo, and Rikelman, Circuit Judges.

Raúl S. Mariani Franco on brief for appellant. W. Stephen Muldrow, United States Attorney, Mariana E. Bauzá-Almonte, Assistant United States Attorney, and Julia M. Meconiates, Assistant United States Attorney, on brief for appellee.

February 23, 2024 GELPÍ, Circuit Judge. Defendant Juan Sierra-Jiménez

("Sierra") pled guilty to being a felon in possession of a firearm,

in violation of

(g)(1) and 924(a)(2). The district

court sentenced him to fifty-eight-months' imprisonment, as well

as to a consecutive eighteen-month sentence for his related

supervised release violations. In this consolidated sentencing

appeal, Sierra challenges the procedural reasonableness of his

fifty-eight-month sentence and asserts that the government

breached the plea agreement with respect to his eighteen-month

sentence. Having discerned no error, we affirm.

I. BACKGROUND

We briefly begin with a review of the relevant facts

leading to the indictment for the new criminal conduct. Because

this appeal follows a guilty plea, we draw the facts from the plea

agreement, the presentence investigation report ("PSR"), the

change-of-plea colloquy, and the sentencing transcript. See

United States v. Spinks,

(1st Cir. 2023) (quoting

United States v. Ubiles-Rosario,

, 280 n.2 (1st Cir.

2017)).

While on supervised released for an earlier federal

firearm offense, Sierra failed to meet with his probation officer

to whom he also lied about where he had been. As a result, on or

about March 22, 2021, the probation officer sought and obtained an

arrest warrant. Upon his arrest, Sierra was found with a Glock 22

- 2 - pistol, modified to fire automatically as a machine gun. Agents

found the gun loaded with thirteen rounds in a magazine and one

round in the chamber, an additional loaded twenty-two-round

magazine containing twenty rounds, and approximately five grams of

what appeared to be heroin. Sierra was transported to a detention

center for processing and admitted thereat that the gun and other

items belonged to him. He was subsequentially indicted for

possessing a machine gun and being a felon in possession of a

firearm.

(g)(1), 922(o), 924(a)(2). Sierra pled

guilty to the latter count by way of plea agreement.

The plea agreement proposed an advisory guideline range

calculation consisting of a base offense level of twenty for the

firearm count, see U.S.S.G. § 2K2.1(a)(4), and a three-level

reduction for acceptance of responsibility, see U.S.S.G.

§§ 3E1.1(a)-(b), for a total offense level of seventeen, which in

turn provides a sentencing range of thirty-seven to forty-six

months, taking into account his criminal history. Both parties

agreed to recommend a sentence at the lower end of the advisory

guideline range. As for the supervised release violation, the

parties agreed to recommend a concurrent sentence. The plea

agreement contained a stipulation of facts which provided that

during his arrest, Sierra was found with a gun, modified to shoot

automatically, loaded with thirteen rounds and an additional round

- 3 - in the chamber, as well as a twenty-two-round magazine containing

twenty rounds. No mention of the purported heroin seized was made.

The Probation Office next filed a PSR with a different

advisory guideline calculation. Because Sierra's possession of

the firearm in question followed two prior felonies, the base

offense level was twenty-six, as per U.S.S.G.

§ 2K2.1(a)(1)(A)(ii)(B). For his acceptance of responsibility,

three levels were reduced. U.S.S.G. § 3E1.1(a). Sierra's two

prior convictions and supervision status yielded a criminal

history category of IV, which juxtaposed with the total offense

level, resulted in a guideline sentencing range of seventy to

eighty-seven months. The PSR was more detailed than the plea

agreement's stipulation of facts, specifically noting the

suspected heroin that was also found during Sierra's arrest. In

his sentencing memorandum and during sentencing, Sierra objected

to the higher guideline calculation and mention of the suspected

heroin.

The sentencing and revocation of supervised release

hearings took place back-to-back on October 18, 2021. At

sentencing, the district court denied Sierra's objections to the

PSR. The district court found encouraging Sierra's expressions

during allocution that he strived to be a better father to his

children and correct his life's trajectory. However, it rejected

the parties' joint sentence recommendation given that this was

- 4 - Sierra's third machine gun offense.1 The district court noted that

it would normally be inclined to accept sentences jointly

recommended by the parties, but here could not "in good conscience"

do so. While it adopted the PSR's guideline calculations, the

district court nonetheless varied downward from the applicable

sentencing range.

In balancing the

(a) factors, the

district court discussed Sierra's personal history, his two

previous federal convictions for machine gun possession, and his

role in the offense. The district court also listed the items

found during Sierra's arrest, which included a modified and loaded

gun, extra rounds of ammunition, and about five grams of

"purported" heroin. Ultimately, the district court sentenced

Sierra to fifty-eight-months' imprisonment.

After pronouncing sentence for the new criminal conduct,

the district court proceeded to the revocation hearing. Sierra

requested an eighteen-month concurrent sentence while the

government made no specific recommendation.2 The district court

then imposed the eighteen-month sentence, however choosing that it

run consecutively to the fifty-eight-month sentence. The district

Sierra has two prior convictions for illegal possession of 1

a machine gun and one prior supervised release violation. The district court inquired whether the government would 2

like to make a statement, to which it responded, "No."

- 5 - court supported this outcome by noting that Sierra violated the

conditions of supervised release by engaging in new criminal

conduct and failing to follow the probation officer's

instructions, classified as Grade A and Grade C violations,

respectively, under U.S.S.G. § 7B1.1. The district court further

stated that the violations and new criminal conduct displayed

Sierra's "total disregard" for the supervised release process.

This timely appeal followed.

II. DISCUSSION

Sierra first argues that that the district court's

mention of heroin impacted the procedural reasonableness of his

sentence in the new criminal case. Second, he posits that the

government breached the plea agreement by failing to recommend a

concurrent sentence. We address each contention seriatim.

A. Procedural Reasonableness

Preserved challenges to the procedural reasonableness of

a sentence are reviewed under "a multifaceted abuse-of-discretion

standard." United States v. Mendoza-Maisonet,

(1st

Cir. 2020) (quoting United States v. Arsenault,

(1st Cir. 2016)). The district court's interpretation and

application of the guidelines is reviewed de novo, its factfinding

for clear error, and its judgment calls for abuse of discretion.

Mendoza-Maisonet,

. Procedural errors include a

sentence based on clearly erroneous facts particularly when facts

- 6 - are "based solely on unreliable evidence" and cannot be established

by a preponderance of the evidence. United States v.

Castillo-Torres,

(1st Cir. 2021); United States v.

Díaz-Rivera,

(1st Cir. 2020). The clear-error

standard is satisfied where "upon whole-record review, an

inquiring court 'form[s] a strong, unyielding belief that a mistake

has been made.'" Mendoza-Maisonet,

(alteration in

original) (quoting United States v. Montañez-Quiñones,

(1st Cir. 2018)).

Sierra contends that the district court committed clear

error by finding that he possessed heroin during his arrest and

using that finding to reach a sentence higher than that recommended

by the parties. This argument falls flat because the district

court never made a factual finding that Sierra possessed heroin.

Review of the record illustrates that, at sentencing, the suspected

heroin was only mentioned once by the district court and that was

merely when it listed the items that the agents found at the time

of arrest. Further, it was only referenced as "purported heroin,"

demonstrating that the district court did not find that the

substance was in fact heroin.

Nor did the district court rely upon the possession of

suspected heroin in determining Sierra's sentence for the new

criminal conduct. The record here explicitly provides the facts

which the district court relied upon to justify Sierra's sentence:

- 7 - how the new criminal conduct had occurred while he was on

supervised release, his criminal history of two prior felony

convictions for possession of a machine gun, and the instant case

being his third machine gun conviction. These specific factual

findings were stressed by the district court more than once while

it addressed the

(a) factors, hence demonstrating

that the same, rather than the possession of suspected heroin,

justified the sentence imposed.

Sierra also contends that the suspected heroin was

mentioned by the district court specifically while it was

discussing the elements of the offense. The elements of the

instant offense do not involve nor consider the possession of any

controlled substance. See

(g)(1), 924(a)(2).

Sierra, in fact, did not receive any guideline enhancement for the

suspected heroin applied, nor any upward variance based upon said

ground. Therefore, the district court's mere iteration of the

items found during arrest, especially as here where the suspected

heroin was only mentioned once in the entirety of the hearing,

does not even come close to clear error. As such, the mention of

the suspected heroin does not render Sierra's sentence

procedurally unreasonable.

B. Breach of the Plea Agreement

"Ordinarily, whether the government has breached its

plea agreement with a defendant is a question of law and our review

- 8 - is plenary." United States v. Rivera-Ruiz,

(1st

Cir. 2022) (quoting United States v. Rivera-Rodríguez,

(1st Cir. 2007)). When a defendant fails to notify the

district court of the purported breach and had knowledge to do so,

such as here, we review for plain error. Rivera-Ruiz,

(citing Rivera-Rodríguez,

). Under this

standard, "we consider whether: (1) there was error, (2) it was

plain, (3) the error affected the defendant's substantial rights,

and (4) the error adversely impacted the fairness, integrity, or

public reputation of judicial proceedings." Rivera-Ruiz,

(quoting Rivera-Rodríguez,

).

"[W]hen a plea rests in any significant degree on a

promise or agreement of the prosecutor, so that it can be said to

be part of the inducement or consideration, such promise must be

fulfilled." United States v. Lessard,

(1st Cir.

2022) (alteration in original) (quoting Santobello v. New York,

(1971)). "In addition to entitlement to the

government's technical compliance with the agreement, [defendants

are] entitled to the 'benefit of the bargain' and the 'good faith'

of the prosecutor." United States v. Brown,

(1st

Cir. 2022) (quoting Ubiles-Rosario,

). "The

critical question is whether the prosecutor's 'overall conduct

[is] reasonably consistent with making [the promised]

recommendation, rather than the reverse." Lessard,

- 9 - (alterations in original) (quoting United States v. Canada,

(1st Cir. 1992)).

Sierra contends that the government breached the plea

agreement by failing to specifically make a recommendation during

the revocation hearing for a concurrent eighteen-month sentence as

agreed upon. We need not address the first and second prongs as

we disagree with Sierra as to prejudice. Sierra posits that had

the government affirmatively recommended a concurrent sentence,

then "the [district] court may have very well agreed to [the]

modified sentence." There is nothing in the record to suggest

that the district court would in fact have imposed the recommended

sentence had the government affirmatively made the recommendation.

See United States v. Rijos-Rivera,

(1st Cir.

2022) (citing United States v. Mulero-Vargas,

(1st Cir. 2022)) (stating the "customary rule" that district courts

are not bound to the sentencing recommendations made by the

parties). Rather, the district court was made aware of the

parties' joint concurrency recommendation via the plea agreement,

the PSR, and by Sierra himself during the revocation hearing.3 The

3The court notes that, per the plea agreement, the government agreed to "recommend that [the revocation sentence] be served concurrent to the sentence imposed in" the underlying crime. Although we conclude that the government's failure to recommend a concurrent sentence did not impact the court's decision, we express our concern with the government's failure to fulfill this obligation.

- 10 - district court ultimately chose to reject the recommended

concurrent sentence given Sierra's conduct which "clearly

demonstrated . . . a total disregard for the supervision

process[,] . . . a lack of interest in becoming a prosocial

citizen[,] and his inability to live a law abiding lifestyle after

his release from imprisonment." Such explicit findings, combined

with "the nature and seriousness of the breach of trust" concerning

supervised release violations "for criminal conduct related to

possession of a machinegun," provide more than ample support for

the district court's grounds for imposing the consecutive sentence

instead of a concurrent one. Accordingly, we are unpersuaded by

Sierra's speculation that the district court would have imposed a

concurrent sentence if the government had uttered such

recommendation. Therefore, Sierra has not met his burden in

proving that the government's failure to orally recommend a

concurrent sentence prejudiced him, and hence find that no plain

error lies.

III. CONCLUSION

For the foregoing reasons, we affirm.

- 11 -