United States Court of Appeals
For the First Circuit
No. 05-2361
UNITED STATES OF AMERICA,
Appellee,
v.
LUIS CARABALLO,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
[Hon. Steven J. McAuliffe, Chief U.S. District Judge]
Before
Selya, Circuit Judge,
Campbell, Senior Circuit Judge,
and Lipez, Circuit Judge.
Bjorn Lange, Assistant Federal Public Defender, on brief for
the defendant, appellant.
Mark E. Howard, Assistant United States Attorney, and Thomas
P. Colantuono, United States Attorney, on brief for the appellee.
May 3, 2006
Per Curiam. After pleading guilty to two counts of
possessing and distributing crack cocaine, in violation of 21
U.S.C. § 841(a)(1), defendant Luis Caraballo was sentenced, under
United States v. Booker, 543 U.S. 220 (2005), to nine years'
imprisonment, three and a half years below the bottom of the
advisory guidelines range. In this appeal, Caraballo challenges
the nine-year sentence as unreasonably high because various
mitigating circumstances--including, primarily, his multiple
serious medical problems--make the sentence longer than necessary
to serve the purposes of sentencing set forth in 18 U.S.C.
§ 3553(a). We review the sentence for unreasonableness, Booker,
543 U.S. at 260-61, under the standards set forth in United States
v. Jiménez-Beltre, 440 F.3d 514, 519 (1st Cir. 2006) (en banc).
Caraballo's challenge to his sentence rests primarily on
his contention that the district court gave insufficient weight to
his medical impairments, particularly the deterioration of both
hips, which causes him considerable pain and impairs his mobility.
According to Caraballo, this medical condition makes him less
likely to commit future crimes, particularly violent ones; makes
him less able to cope with prison life; clouds any hope for a
productive life after release from prison; and could best be
treated, after release, by the Veterans Administration, rather than
by the Bureau of Prisons.
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In fact, the district court afforded considerable weight
to Caraballo's medical condition, which it characterized as
"obviously a serious situation." Indeed, that condition was the
court's primary rationale for imposing a sentence below the
guideline sentencing range. (The other rationale was the
relatively routine, street-level nature of the offenses of
conviction.) However, the district court felt that other statutory
factors--including the "public['s] need[] to be protected from
[Caraballo's] demonstrably violent personality," see 18 U.S.C. §
3553(a)(2)(C), and the need to account for his "terrible . . .
violent record,"1 see id. § 3553(a)(1)--warranted "a substantial
sentence . . . beyond that which one would obtain for this type of
small drug deal." In reaching that conclusion, the judge expressed
skepticism that Caraballo's medical condition, while serious, would
prevent him from continuing his lifelong pattern of domestic
violence and implicitly discredited Caraballo's argument that his
forced sobriety, while incarcerated, would cure the lifetime
alcohol abuse that triggered his violent conduct in the past.
Accordingly, rather than impose a sentence within the guideline
sentencing range of 151 to 188 months (approximately 12½ to 15½
years), the district court imposed a lesser, but still substantial,
sentence of 9 years, which it believed adequate to punish Caraballo
1
Caraballo's nine prior convictions included six instances of
domestic violence, two involving deadly weapons, and one instance
of threatening to harm a police officer and his family.
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for his conduct while still giving him hope that he can be a
productive citizen when released. That determination was not
unreasonable.
Caraballo's remaining argument focuses on the application
of the career offender guideline, USSG § 4B1.1, which largely
accounted for his guideline sentencing range of 151 to 188 months.
Caraballo does not dispute that the career offender guideline was
properly calculated and applied, given his prior record of at least
two "felony" convictions for violent crimes, as the term "felony"
is defined in the guidelines. See id. § 4B1.2, comment. (n.1)
(defining "prior felony conviction" as "a prior . . . federal or
state conviction for an offense punishable by . . . imprisonment
for a term exceeding one year, regardless of whether such offense
is specifically designated as a felony and regardless of the actual
sentence imposed").2 He argues, however, that a sentence of less
than nine years was necessary to avoid the purportedly "unwarranted
sentencing disparity," 18 U.S.C. § 3553(a)(6), between his sentence
and the sentences received by defendants who are prosecuted for
similar offenses in other states.
The government disputes the factual predicate for that
argument, contending, with statutory support, that at least two of
Caraballo's prior convictions, those involving deadly weapons,
2
Caraballo's prior Massachusetts assault convictions counted
as felonies for this purpose because, under Massachusetts law,
those offenses were punishable by imprisonment for up to 2½ years.
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would be deemed felonies for purposes of the career offender
guideline if committed in other states (including New Hampshire).
More important, any disparity caused by application of the career
offender guideline is one that results from the policy choices made
by Congress and implemented by the Sentencing Commission. See 28
U.S.C. § 994(h) (directing the Sentencing Commission to "assure
that the guidelines specify a sentence to a term of imprisonment at
or near the maximum term authorized" for career offenders). The
district court therefore permissibly rejected any such disparity as
a basis for further reducing Caraballo's sentence. See Jiménez-
Beltre, 440 F.3d at 519; United States v. Pho, 433 F.3d 53, 62-65
(1st Cir. 2006).
Given the district court's "reasoned explanation" for
the sentence imposed, Jiménez-Beltre, 440 F.3d at 519, and the
deference due to its "on the scene" judgment, id., we conclude that
a 9-year sentence, 3½ years below the bottom of the advisory
guideline sentencing range, was not unreasonably high in light of
the relevant statutory factors. Cf. United States v. Scherrer, No.
05-1705, 2006 WL 932550, at *5 (1st Cir. Apr. 12, 2006) (en banc)
(upholding an adequately explained sentence 2 3/4 years above the
guideline sentencing range); United States v. Smith, No. 05-1725,
2006 WL 893622, at *6 (1st Cir. Apr. 7, 2006) (vacating an
inadequately explained sentence less than half the minimum of the
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guideline sentencing range). Accordingly, the sentence is
affirmed.
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