United States Court of Appeals
For the First Circuit
No. 02-2704
UNITED STATES OF AMERICA,
Appellee,
v.
GUILLERMO MANSUR-RAMOS,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Daniel R. Domínguez, U.S. District Judge]
Before
Selya, Circuit Judge,
Coffin and Cyr, Senior Circuit Judges.
Carlos Lugo-Fiol and Saldaña, Saldaña-Egozcue & Vallecillo,
PSC on brief for appellant.
H.S. Garcia, United States Attorney, Sonia I. Torres, Chief,
Criminal Division, and Thomas F. Klumper, Assistant United States
Attorney, on brief for appellee.
October 28, 2003
SELYA, Circuit Judge. In this sentencing appeal,
defendant-appellant Guillermo Mansur-Ramos labors to persuade us
that the district court erred in imposing too long a term of
immurement and, to make matters worse, attaching an impermissible
condition of supervised release to his sentence. Finding his
arguments unconvincing, we affirm the sentence.
The facts are sordid, but straightforward. We derive
them from the change-of-plea colloquy, the presentence
investigation report, and the transcript of the disposition
hearing. See United States v. Dietz, 950 F.2d 50, 51 (1st Cir.
1991).
At all times relevant hereto, the appellant worked as a
police officer assigned to the tactical operations division in
Ponce, Puerto Rico. He exploited his position to enter into
illegal arms trafficking. When he attempted to sell weapons to a
potential customer who was in fact a government informant, federal
agents surveilled and videotaped several ensuing meetings.
On February 21, 2001, the appellant sold the informant a
.22 caliber long rifle for $500. He bragged that he obtained the
weapon through a seizure made under the guise of official police
business. During this recorded meeting the informant emphasized,
and the appellant clearly understood, that drug kingpins with whom
he was in contact wanted "larger" weapons. Speaking to this point,
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the appellant described his continuing efforts to locate high-
powered firearms, particularly AK47s and AR15s.
At a follow-up meeting held on March 5, 2001, the
appellant sold the informant a .38 caliber revolver for $260. The
appellant boasted that he had procured the gun by assaulting a man
on the street, striking him over the head with the barrel of his
pistol and robbing him. The appellant again assured the informant
that his search for deadlier weapons continued.
The third meeting with which we are concerned took place
on March 26, 2001. At that time, the appellant sold the informant
a .38 caliber revolver for $500. The appellant had acquired this
firearm by means of another illegal seizure.
In due season, a federal grand jury returned a twelve
count indictment against the appellant. After some preliminary
skirmishing (not relevant here), the appellant pled guilty to five
counts of the indictment, namely, (i) interfering with commerce by
robbery in violation of 18 U.S.C. § 1951, (ii) possessing a firearm
with an obliterated serial number in violation of 18 U.S.C. §
922(k), and (iii) three counts of selling stolen firearms in
violation of 18 U.S.C. §§ 922(j), 924(a)(2). As part of the plea
agreement, both sides agreed to recommend a guideline sentencing
range (GSR) of 70-87 months (offense level 27/criminal history
category I). The government reserved the right to argue for the
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high end of the range and the appellant reserved the right to argue
for the low end.
At the disposition hearing, the district court sentenced
the appellant to an 80-month incarcerative term, to be followed by
three years of supervised release. In addition to the standard
conditions of supervised release, the court attached a special
condition requiring the appellant to provide the probation
department with evidence demonstrating that he was filing income
tax returns with the Puerto Rico Department of Treasury as required
by law.
This timely appeal followed. In it, the appellant
asseverates that the sentencing court erred (i) in choosing a
sentence above the low end of the GSR, and (ii) in imposing an
impertinent condition of supervised release.
We turn first to the district court's choice of an 80-
month term of immurement. In selecting that figure, the court
enumerated five considerations. First, the appellant's actions
were antithetical to his role as a police officer (a person sworn
to guard against the commission of crime). Second, unauthorized
arms trafficking is per se illegal. Third, the appellant engaged
in the sale of weapons knowing that they were intended for use by
drug kingpins. Fourth, one gun sold by the appellant had an
obliterated serial number. Fifth, the appellant had displayed a
propensity for violent behavior. Despite his failure to object
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below, the appellant now terms unfounded the district court's
inference that the weapons in question were intended for use by
drug kingpins and contends that the court violated his right to due
process by basing its sentencing determination on that material
misstatement of fact. This contention lacks force.
A district court is not required to cite any reason for
sentencing a defendant within a properly-constructed GSR that spans
no more than 24 months. See 18 U.S.C. § 3553(c). Here, the
parties concur both that the GSR itself was properly calculated and
that it spanned a period of only 17 months. Because Congress does
not require sentencing courts to offer any reason for within-the-
range choices in such cases, it would seem odd to say that Congress
wants appellate courts to review the sufficiency of each and every
reason cited by a district court in support of a within-the-range
sentence. Consistent with the statutory structure, we have held,
with a regularity bordering on the echolalic, that when a district
court imposes a sentence within the guideline range, the court of
appeals ordinarily lacks authority to scrutinize the rationale for
that sentence. See United States v. O'Connell, 252 F.3d 524, 529-
30 (1st Cir. 2001) (collecting cases). Our sister circuits have
uniformly adopted the same position. See, e.g., United States v.
Owens, 308 F.3d 791, 795 (7th Cir. 2001); United States v. Woodrum,
959 F.2d 100, 101 (8th Cir. 1992); United States v. Garcia, 919
F.2d 1478, 1479 (10th Cir. 1990).
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Despite this general rule, we have left open the question
of whether appellate jurisdiction exists to review a sentence that
is within the applicable GSR but allegedly violative of due process
because it is premised upon a material misstatement of fact. See
O'Connell, 252 F.3d at 530 n.2. We can envision situations in
which a sentencing court's misapprehension of a material fact might
implicate due process concerns and thus require vacation of such a
sentence. See, e.g., United States v. DeWire, 271 F.3d 333, 340
n.8 (1st Cir. 2001) (suggesting that such a need might arise if
trial court had mistaken the defendant for someone else); United
States v. McDavid, 41 F.3d 841, 844 (2d Cir. 1995) (vacating
sentence because trial court mistakenly believed defendant was on
probation at the time he committed the offense of conviction);
United States v. Nichols, 979 F.2d 402, 409 (6th Cir. 1993)
(suggesting that appellate jurisdiction would exist where a
defendant raised a colorable constitutional challenge to the
sentence); cf. United States v. Romolo, 937 F.2d 20, 24 n.4 (1st
Cir. 1991) (noting that even standardless prosecutorial discretion
cannot be exercised so as to contravene constitutionally protected
rights, such as race or religion).
Although this question is interesting, we need not
definitively answer it here. Not every bevue sinks to the level of
a due process violation, see, e.g., United States v. Pighetti, 898
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F.2d 3, 5 (1st Cir. 1990), and this case fails to present even a
colorable claim of constitutional error.
In the first place, we doubt that any error occurred.
After all, a sentencing court is not restricted to direct evidence,
but may base its findings on reasonable inferences from the record
as a whole. See United States v. Cunningham, 201 F.3d 20, 26 (1st
Cir. 2000); United States v. Jones, 997 F.2d 967, 970 (1st Cir.
1993). This principle is apposite here. Although the record
reflects no direct statement by the appellant indicating his
knowledge that the weapons he was peddling would wind up in the
hands of drug kingpins, the record makes manifest that the
informant wanted arms for drug lords — and the appellant knew as
much. And, moreover, there were numerous other allusions to "drug
kingpins" or the equivalent during the conversations between the
two men. Taken in context, these references adequately support the
district court's conclusion that the end users of the firearms were
likely to be persons engaged in large-scale drug trafficking.
In the second place, we doubt the materiality of the
finding. Fairly read, the record belies the appellant's assertion
that the district court relied solely on the "drug kingpin"
inference. To the contrary, the court cited no fewer than four
other facts that influenced its sentencing determination — and the
appellant does not challenge the provenance of any of those facts.
Under these circumstances, we are at a loss to see how the
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appellant's due process rights were transgressed by a sentencing
judge who plainly believed that the appellant's overall conduct,
whether or not described with laser-like precision, merited a
sentence somewhat above the low end of, but nonetheless within, the
GSR.
We move now to the appellant's claim that the lower court
erred in requiring him, during the period of supervised release, to
produce evidence that he was filing income tax returns in
compliance with law. Typically, we review challenges to conditions
of supervised release for abuse of discretion. United States v.
Brown, 235 F.3d 2, 3 (1st Cir. 2000). Here, however, the appellant
failed to object to the imposition of the special condition in the
district court. Consequently, our review is for plain error. See
United States v. Allen, 312 F.3d 512, 514 (1st Cir. 2002); Brown,
235 F.3d at 3.
In order to surmount the high hurdle posed by plain error
review, the appellant must show, at a bare minimum, "an obvious and
clear error under current law that affected his substantial
rights." Brown, 235 F.3d at 4. Even if close perscrutation
reveals such an error, the reviewing court may disregard it if the
error does not "seriously affect the fairness, integrity or public
reputation of judicial proceedings." United States v. Olano, 507
U.S. 725, 736 (1993).
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The appellant asserts that the challenged condition is
not reasonably related to the offenses of conviction. This
assertion overlooks the breadth of a sentencing court's discretion
to custom-tailor conditions of supervised release that reasonably
respond to a wide variety of considerations. These include "(1)
the defendant's offense, history and characteristics; (2) the need
for adequate deterrence; and (3) the need to protect the public
from further crimes of the defendant." United States v. Phaneuf,
91 F.3d 255, 263 (1st Cir. 1996) (citing USSG §5D1.3(b)).
Here, the principal offense conduct — trafficking in
illegal weapons — was commercial in nature and, for aught that
appears, motivated primarily by greed. Given this circumstance,
the district court had a valid interest in ensuring that the
appellant complied with income-reporting requirements after his
release from custody. The special condition allows the court,
through the probation department, to monitor the appellant's
earnings and identify any potential disparity between his income
and his lifestyle. Relatedly, it serves to deter the appellant
from engaging in schemes similar to the crimes of conviction once
he is released from prison by forcing him to account for his
income.
We need go no further. The most that can be said for the
appellant's position is that the relatedness of the special
condition of supervised release is somewhat attenuated. But the
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condition is, at the very least, arguably reasonable. See, e.g.,
United States v. Behler, 187 F.3d 772, 780 (8th Cir. 1999) (holding
that access to financial information was reasonably related to a
defendant's narcotics convictions because financial gain motivated
the underlying crimes). Because the error — if there is one — is
neither clear nor obvious, the applicable standard of review
defenestrates the appellant's claim.
Affirmed.
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