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:
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[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
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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
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"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
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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
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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
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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.
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