United States v. Rivera

United States Court of Appeals
For the First Circuit

No. 05-1366

UNITED STATES OF AMERICA,

Appellee,

v.

VICTOR RIVERA, a/k/a "GENO,"

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

[Hon. F. Dennis Saylor IV, U.S. District Judge]

Before

Lipez, Circuit Judge,

Hug,* Senior Circuit Judge,

and Howard, Circuit Judge.

Joseph S. Berman, with whom Berman & Dowell was on brief,
for appellant.
Paul G. Casey, Assistant United States Attorney, with whom
Michael J. Sullivan, United States Attorney, was on brief, for
appellee.

May 19, 2006

*
Of the United States Court of Appeals for the Ninth
Circuit, sitting by designation.
 HOWARD, Circuit Judge. Victor Rivera was sentenced to

188 months of imprisonment for distributing heroin and being a

felon in possession of a firearm. See 21 U.S.C. § 841(a)(1); 18

U.S.C. § 922(g)(1). His sentencing occurred between the United

States Supreme Court's decision in United States v. Booker, 543

U.S. 220 (2005) (declaring the federal sentencing guidelines

advisory), and this court's en banc decision in United States v.

Jiménez-Beltre, 440 F.3d 514 (1st Cir. 2006) (instructing district

courts on the process for imposing sentence post-Booker). On

appeal, Rivera claims that the district court erred by not

following the correct sentencing process and that the sentence

imposed was unreasonable. We affirm.

The essential facts are not in dispute. In January 2003,

undercover Worcester, Massachusetts police officers purchased $160

worth of heroin from Rivera. Several weeks later, state

investigators searched Rivera's residence and uncovered a semi-

automatic pistol hidden in a baby's carriage. Rivera was arrested

and admitted that he owned the gun, which was later determined to

have traveled in interstate commerce. He was eventually prosecuted

in federal court, where he pleaded guilty to distributing heroin

and being a felon in possession of a firearm.

The district court sentenced Rivera on March 4, 2005.

The court began by explaining its methodology for imposing

sentence:

-2-
 [W]hat I intend to do is to go through a
guidelines sentencing calculation as the first
step . . . then consider whether there is an
available departure within the guideline
framework . . . and then consider whether a
nonguidelines sentence is appropriate, that is,
one that varies or deviates from the guidelines
themselves.

The court determined that Rivera was subject to a mandatory

minimum sentence of 180 months because he was a career offender

under U.S.S.G. § 4B1.1(a) and an armed career criminal under 18

U.S.C. § 924(e)(1). It then determined that Rivera had a total

offense level of 31 and a criminal history category of VI, which

yielded a guidelines sentencing range (GSR) of 188 to 235 months.

Rivera did not object to this calculation and did not request that

the court grant a departure under the guidelines framework.

After determining the GSR, the court entertained "the

possibility of a nonguideline sentence." Rivera argued for such

a sentence because he deemed it unfair that he had been prosecuted

in the federal system, where the penalties for drug offenses are

stiffer than in the state system. The court rejected this

argument because, absent extraordinary circumstances, the

executive branch decides which cases to prosecute in federal court

and Rivera's sentence should not be affected by this decision.

On its own, the court raised the possibility of a

sentence below the applicable GSR because Rivera's parents were

drug addicts who had served time in prison during his youth.

While acknowledging these "tragic" circumstances, the court

-3-
concluded that they did not "absolve [Rivera] of blame" for his

crimes.

The court ultimately imposed a 188-month sentence, eight

months longer than the minimum sentence mandated by 18 U.S.C. §

924(e)(1) and advised by U.S.S.G. § 4B1.1(a). In reaching this

conclusion, the court stated:

The guideline range begins at 188 months. I
see no reason to go and sentence above the
minimum guideline range. It is certainly
questionable whether the additional eight
months adds anything meaningful by way of
deterrence or rehabilitation; but on balance,
I do not see that this case is sufficiently
extraordinary in my mind, or that there are
clearly persuasive reasons to impose a
nonguidelines sentence.

We review challenges to sentencing process -- i.e.,

error of law -- de novo. See United States v. Robinson, 433 F.3d

31, 35 (1st Cir. 2005). Reasonableness challenges -- i.e.

challenges to errors of judgment -- are reviewed with "some

deference . . . [a]ssuming a plausible explanation and a

defensible overall result." Jiménez-Beltre, 440 F.3d at 519.

Rivera's primary argument is that the district court committed an

error of law by treating the guidelines as mandatory in imposing

his sentence. He contends that, because the court required him to

identify specific reasons for imposing a sentence below the GSR,

it treated "the guidelines as de facto mandatory" and improperly

-4-
"placed the burden on [him] to prove that the sentence should fall

below the mandatory guideline range."

In Booker, the Supreme Court held that mandatory

guidelines sentences based on judge-made findings of fact violate

the Sixth Amendment, but that this constitutional deficiency could

be cured by treating the guidelines as "effectively advisory."

543 U.S. at 245. We have construed Booker to hold that sentences

post-Booker are reviewed on appeal for "reasonableness" whether

the sentences imposed was inside or outside the GSR. See Jiménez-

Beltre, 440 F.3d at 517.

Notwithstanding the recasting of the guidelines as

advisory, they remain "an important consideration in sentencing."

Id. at 518. "[T]he guideline range, taking applicable departures

into account, is the starting point for [the] analysis . . . ."

United States v. Saez, -- F.3d --, 2006 WL 888127, at *2 (1st Cir.

Apr. 6, 2006) (citing Jiménez-Beltre, 440 F.3d at 518). From

there, the proponent of a higher or lower sentence may offer

reasons and facts to persuade the district court to impose a

sentence outside the GSR. See id. The party seeking a

nonguidelines sentence, whether the defendant or the government,

bears the burden of "providing the basis" to support such a

sentence. See Jiménez-Beltre, 440 F.3d at 519.

The district court here correctly anticipated this

approach to sentencing. It first calculated Rivera's GSR and

-5-
considered whether there was a ground for a departure. It then

permitted the parties to offer arguments for imposing a sentence

outside the GSR. After considering these arguments, the court

determined that neither side had offered a persuasive reason for

imposing a nonguidelines sentence, and that a sentence at the low

end of the GSR was warranted. This approach tracks the analysis

prescribed in Jiménez-Beltre, 440 F.3d at 518-19. Accordingly,

the district court did not err in asking Rivera to provide a

reason why he should be sentenced below the GSR.

Rivera also contends that the district court committed

a legal error by stating that his case was not sufficiently

"extraordinary" to warrant a below-guidelines sentence. According

to Rivera, this statement indicates that the court did not

understand the latitude that it possessed to impose a

nonguidelines sentence. We disagree.

Rivera is correct that a party need not make an

"extraordinary" showing in order to persuade the district court

that a sentence below the GSR is warranted. Compare Jiménez-

Beltre, 440 F.3d at 519. Yet, we do not understand the court to

have imposed such a requirement here. Shortly after using the

word "extraordinary," the court explained that it would not

sentence Rivera below the GSR because there were no "clearly

persuasive reasons" for such a sentence. In Jiménez-Beltre, we

affirmed the district court's rejection of an argument in favor of

-6-
a sentence below the GSR where the party proposing such a sentence

had not provided "clearly identified and persuasive" reasons for

such a sentence. 440 F.3d at 517-19. We read the district court

to have engaged in a substantially similar (and unobjectionable)

analysis here.

Finally, Rivera argues that, even if the district court

did not commit a legal error in the sentencing process, the

sentence imposed is unreasonable. He contends that a sentence in

excess of 15 years is unreasonable in light of his troubled

childhood as the son of drug-addicted parents.

In reviewing a sentence for reasonableness, we stress

the need for "a plausible explanation and a defensible overall

result." Jiménez-Beltre, 440 F.3d at 519. The district court

permissibly considered Rivera's childhood in its sentencing

calculus, see United States v. Smith, --F.3d--, 2006 WL 893622, at

*3 (1st Cir. Apr. 7, 2006), but stated that "a tragic childhood

does not absolve the defendant of blame" and that, "under the

circumstances," Rivera's childhood was not a ground for a below-

guidelines sentence. The court also stated that the low-end of

the GSR was appropriate in light of Rivera's "criminal history."

We cannot say that this line of reasoning was unreasonable in

-7-
light of Rivera's multiple prior convictions and the court's

plausible explanation for the sentence imposed.1

Affirmed.

1
Rivera also challenges the district court's determination
that he was subject to a 180-month mandatory minimum sentence as an
armed career criminal under 18 U.S.C. § 924(e)(1). The argument is
without merit. In the first place, Rivera failed to challenge the
correctness of the court's guidelines calculation (and in fact
admitted the correctness of the GSR). Having forfeited his
challenge to the guidelines calculation, our review is for plain
error. See United States v. Rodriguez, 311 F.3d 435, 437-38 (1st
Cir. 2002). Even assuming that the court committed plain error by
concluding that Rivera was an armed career criminal (which we
doubt), this error was harmless because his sentence was
independently justified under the career criminal guideline,
U.S.S.G. § 4B1.4, which yields the same sentencing range and the
armed career criminal guideline, and which Rivera does not
challenge. Rivera's argument that, under the Sixth Amendment, his
prior convictions must be proven to a jury beyond a reasonable
doubt is likewise unavailing, given out express rejection of this
argument in Jiménez-Beltre, 440 F.3d at 520.

-8-