United States v. Rivera-Gonzalez

United States Court of Appeals
For the First Circuit

No. 13-1620

UNITED STATES OF AMERICA,

Appellee,

v.

KERMIT RIVERA-GONZÁLEZ,

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF PUERTO RICO

[Hon. Francisco A. Besosa, U.S. District Judge]

Before

Howard, Selya and Thompson,
Circuit Judges.

Edwin E. Leon-Leon on brief for appellant.
Rosa Emilia Rodríguez-Vélez, United States Attorney, Nelson
Pérez-Sosa, Assistant United States Attorney, Chief, Appellate
Division, and Tiffany V. Monrose, Assistant United States Attorney,
on brief for appellee.

January 20, 2015
 SELYA, Circuit Judge. Defendant-appellant Kermit Rivera-

González challenges his 84-month sentence for a firearms offense.

After careful consideration, we affirm.

I.

Background

Since this appeal trails in the wake of a guilty plea, we

draw the facts from the plea agreement, the change-of-plea

colloquy, the undisputed portions of the presentence investigation

report (PSI Report), and the transcript of the disposition hearing.

See United States v. Almonte-Nuñez, 771 F.3d 84, 86 (1st Cir.

2014); United States v. Del Valle-Rodríguez, 761 F.3d 171, 173 (1st

Cir. 2014). Beginning in 2007 and continuing into 2010, the

defendant engaged in a conspiracy to distribute controlled

substances at various drug distribution points in San Juan, Puerto

Rico. In carrying out his role in the conspiracy, he possessed and

used firearms.

After a federal grand jury charged the defendant with

various drug-trafficking offenses, the government filed a

supplemental information containing two additional counts arising

out of the defendant's possession, at the time of his apprehension,

of four kilograms of marijuana (supplemental count 1) and four

firearms (supplemental count 2). Although the defendant initially

maintained his innocence, he soon entered into a non-binding plea

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agreement (the Agreement) with the government. See Fed. R. Crim.

P. 11(c)(1)(B).

Pursuant to the Agreement, the defendant pleaded guilty

to count 1 of the indictment (charging him with conspiring to

possess with intent to distribute various controlled substances

within 1,000 feet of a protected location, see 21 U.S.C.

§§ 841(a)(1), 846, 860), supplemental count 1 (charging him with

possessing marijuana with intent to distribute, see id.

§ 841(a)(1)), and supplemental count 2 (charging him with

possessing firearms in furtherance of a drug-trafficking offense,

see 18 U.S.C. § 924(c)(1)(A)). The remaining five counts contained

in the indictment were to be dismissed.

The Agreement made clear the parties' expectation that

the guideline sentencing range (GSR) for count 1 would be 108 to

135 months and that the GSR for supplemental count 1 would be 6 to

12 months. These anticipated GSRs were based on the assumption

that the defendant would be placed in criminal history category

(CHC) I. The parties agreed that, should this assumption

materialize, they would jointly recommend a 120-month sentence for

count 1 and a concurrent 6-month sentence for supplemental count 1.

With respect to supplemental count 2, they agreed to recommend the

mandatory minimum 60-month term of immurement, to run consecutively

to the sentences on the underlying drug charges. The parties'

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recommendation of a 60-month consecutive term for the gun charge

was not contingent upon the sentencing court's CHC designation.

Some months after accepting the defendant's guilty plea,

the district court received the PSI Report, which grouped the drug

charges. See USSG §3D1.2. Using CHC I, the PSI Report set the GSR

at 87 to 108 months for the grouped counts. The Report made only

a passing reference to the gun charge, noting that the statute of

conviction required a minimum 60-month consecutive term of

imprisonment. See 18 U.S.C. § 924(c)(1); USSG §2K2.4(b).

At the disposition hearing, the district court, without

objection, adopted the guideline calculations limned in the PSI

Report. The government acknowledged that grouping had resulted in

a lower GSR for the drug counts but nevertheless pressed for the

imposition of the previously agreed 120-month sentence on count 1

and a 6-month sentence on supplemental count 1. The district court

eschewed the non-binding sentencing recommendations contained in

the Agreement and imposed concurrent within-the-range sentences of

96 months on count 1 and 12 months on supplemental count 1.

The court then took up the gun charge. It again turned

a deaf ear to the parties' joint recommendation and levied an 84-

month sentence on supplemental count 2 to run consecutively to the

other sentences.1 This timely appeal ensued.

1
As contemplated in the Agreement, the district court
dismissed the remaining five counts contained in the indictment.

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 II.

Analysis

On appeal, the defendant abjures any challenge to either

the district court's guideline calculations or the sentences

imposed on the drug counts. Instead, he focuses with laser-like

intensity on the reasonableness (procedural and substantive) of the

84-month sentence for the gun charge.

We review challenges to the reasonableness of a sentence

in line with a two-step pavane. See United States v. King, 741

F.3d 305, 307 (1st Cir. 2014); United States v. Martin, 520 F.3d

87, 92 (1st Cir. 2008). We begin by examining allegations of

procedural error. See Gall v. United States, 552 U.S. 38, 51

(2007). If no procedural error is found, we then assess the

substantive reasonableness of the sentence. See id. In carrying

out these tasks, our review is for abuse of discretion. See id.;

United States v. Narváez-Soto, ___ F.3d ___, ___ (1st Cir. 2014)

[No. 13-1963, slip op. at 5]. Within this rubric, we review

conclusions of law de novo and findings of fact for clear error.

See Narváez-Soto, ___ F.3d at ___, [slip op. at 5]; United States

v. Walker, 665 F.3d 212, 232 (1st Cir. 2011).

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 A.

Preliminary Matters

Even though the Agreement contained a waiver-of-appeal

clause, the defendant's appeal is properly before us. Such a

clause only precludes appeals falling within its scope. See

Almonte-Nuñez, 771 F.3d at 88; United States v. Murphy-Cordero, 715

F.3d 398, 400 (1st Cir. 2013). Here, the defendant waived his

right of appeal to the extent that he was subsequently "sentenced

in accordance with the terms and conditions set forth in the

Sentence Recommendation provisions" of the Agreement. The sentence

imposed on the gun charge was not in accordance with the terms and

conditions of the Sentence Recommendation provisions, which

memorialized the parties' joint recommendation of a 60-month term

of immurement. Because of this digression from what the parties

had proposed, the waiver-of-appeal clause does not bar this appeal.

A few words about a second preliminary matter will help

to put our merits discussion in perspective. The statute of

conviction provides in pertinent part, with exceptions not relevant

here, that any person who possesses a firearm in furtherance of a

drug-trafficking crime "shall, in addition to the punishment

provided for such . . . drug trafficking crime . . . be sentenced

to a term of imprisonment of not less than 5 years." 18 U.S.C.

§ 924(c)(1)(A)(i). This term of imprisonment shall not "run

concurrently with any other term of imprisonment imposed on the

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person, including any term of imprisonment imposed for the

. . . drug trafficking crime during which the firearm was

. . . possessed." Id. § 924(c)(1)(D)(ii).

The general rule is that convictions (like this one) that

carry a statutory mandatory minimum term of immurement designed to

run consecutively to any sentence on the underlying crime are to be

sentenced "independent of the guideline sentence on any other

count." USSG §5G1.2(a), cmt. (n.2(A)). Consecutive sentences for

violations of 18 U.S.C. § 924(c) are, moreover, to be calculated

without regard to chapters three and four of the sentencing

guidelines. See USSG §2K2.4(b).

Even so, a mandatory minimum sentence under section

924(c) is not wholly independent of the sentencing guidelines.

Rather, the statutory mandatory minimum sentence is deemed to be

the guideline sentence.2 See id. §2K2.4(b); United States v.

Millán-Isaac, 749 F.3d 57, 67 (1st Cir. 2014). We hold, therefore,

that since a mandatory minimum sentence under section 924(c) is the

recommended guideline sentence, a reviewing court should treat any

sentence above that statutory mandatory minimum as an upward

variance. See, e.g., United States v. Goodrich, 739 F.3d 1091,

1095, 1099 (8th Cir. 2014); United States v. Gantt, 679 F.3d 1240,

2
The guidelines also make clear that if the defendant's
conviction for a section 924(c) offense pushes him into career
offender status, his GSR would be determined under section
4B1.1(c). See USSG §2K2.4(c). That principle is not implicated
here.

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1243, 1248 (10th Cir. 2012); United States v. Lucas, 670 F.3d 784,

789, 796-97 (7th Cir. 2012). We proceed accordingly.

B.

Procedural Reasonableness

The defendant first contends that the district court

failed to conduct an adequate individualized assessment of his

history and characteristics. Specifically, he contends that the

court did not take into account mitigating factors, such as his

relatively crime-free past, his age (33), and the duration of his

sentence on the underlying drug counts.

This is whistling past the graveyard. The record makes

pellucid that the court below focused appropriately on the

defendant's personal history and characteristics. With respect to

the defendant's particular complaints, we note that the court

specifically acknowledged not only that the defendant's criminal

record was minimal but also that he was a "good father" and a good

family man. So, too, the court recognized the defendant's age. It

is true that no extensive comment about the defendant's age was

made — but none was required. Age is normally relevant in

sentencing only if age-based considerations "are present to an

unusual degree," USSG §5H1.1, and distinguish a particular case in

a meaningful way (such as when a defendant is either very young or

very old). No such special considerations obtain here.

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 In a nutshell, the sentencing court indicated its

awareness of the defendant's personal history and characteristics.

The defendant's real complaint is not that the court overlooked

those factors but that it weighed those factors less heavily than

he would have liked. But that type of balancing is, within wide

limits, a matter for the sentencing court. See United States v.

Carrasco-De-Jesús, 589 F.3d 22, 29 (1st Cir. 2009) (holding that a

criminal defendant is entitled to a weighing of relevant factors,

not to a particular result); United States v. Deppe, 509 F.3d 54,

62 (1st Cir. 2007) (similar). Those wide limits were not exceeded,

or even closely approached, in this instance.

The defendant's claim that the district court disregarded

the sentences imposed on the underlying drug charges is made up out

of whole cloth. The record offers no reason to doubt that the

court took into account the sentences imposed on the underlying

drug charges. After all, the sentences on all three counts were

imposed at the same time. To cinch the matter, the aggregate

period of incarceration portended by the combined sentences — 180

months — is exactly the same as the aggregate period of

incarceration jointly recommended by the parties in the Agreement.

That smacks of deliberate decisionmaking, not mere happenstance.

Though the defendant's lack of individualization claim is

meritless, his challenge to the procedural reasonableness of the

sentence has another facet: his asseveration that the sentencing

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court erred by increasing the mandatory minimum sentence in a knee-

jerk response to the high incidence of crime and illegal firearm

use in Puerto Rico and the local judiciary's perceived penchant for

leniency in such cases. The defendant maintains that the court

placed too much emphasis on these community-based considerations

and, thus, overshadowed the appropriate sentencing factors limned

in 18 U.S.C. § 3553(a).

We agree with the defendant's premise that a sentencing

court's appraisal of community-based considerations does not

relieve its obligation to ground its sentencing determination in

individual factors related to the offender and the offense. See

United States v. Flores-Machicote, 706 F.3d 16, 24 (1st Cir. 2013).

A sentencing court may abuse its discretion by focusing "too much

on the community and too little on the individual" in imposing a

sentence. Id.; see Narváez-Soto, ___ F.3d at ___ [slip op. at 8].

But as we explain below, that is not what happened here.

That the court paid heed to the particulars of the

defendant's case is made manifest by its references to his family

life, age, education, employment record, absence of mental health

issues, drug consumption, and prior brushes with the law. The

court also remarked that the defendant, who had been found in

possession of four firearms, had no training in their use. Nor did

he have any visible means of purchasing them.

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 Against this tableau, the defendant's asseveration is

unpersuasive. While the sentencing court referred to both the high

incidence of violent crime in Puerto Rico and to the local courts'

tendencies toward leniency in such cases, it did so in connection

with the need for deterrence — and deterrence is, of course, a

legitimate sentencing goal. See 18 U.S.C. § 3553(a)(2)(B); Flores-

Machicote, 706 F.3d at 23.

The short of it is that the district court sentenced the

defendant in light of the totality of a myriad of relevant

circumstances. Although community-based considerations were a part

of this mix, there is no compelling indication that the court gave

undue weight to them. Consequently, we reject the defendant's

assignment of procedural error.

C.

Substantive Reasonableness

This leaves only the defendant's assertion that his

sentence on the gun charge is substantively unreasonable. The

essence of appellate review for substantive reasonableness is

whether the sentence is the product of "a plausible . . . rationale

and a defensible result." Martin, 520 F.3d at 96.

The defendant starts by attacking the lower court's

sentencing rationale. We glean that rationale primarily from the

court's near-contemporaneous oral and written explanations of the

sentence. See id. at 93. In evaluating the plausibility of a

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discerned rationale, we are mindful that a district court's

sentencing portfolio is "broad, open-ended, and significantly

discretionary." Id. at 92.

At the disposition hearing, the court noted the

prevalence of gun-related crimes in Puerto Rico and the pressing

need to deter that kind of misconduct. The court also noted that

such gun-related crimes are often committed by persons who, like

the defendant, have obtained firearms illicitly and have had no

proper training in their use.

Furthermore, the defendant was a drug point owner and

enforcer who possessed four firearms in furtherance of those roles.

For many drug dealers, guns are tools of the trade. See, e.g.,

United States v. Acosta-Colón, 741 F.3d 179, 203 (1st Cir. 2013);

United States v. Green, 887 F.2d 25, 27 (1st Cir. 1989). The

sentencing court's rationale stressed the need for deterrence in a

community and in a trade where gun-related crimes run rampant. So

viewed, the court's sentencing rationale was plausible. See

Flores-Machicote, 706 F.3d at 23; Martin, 520 F.3d at 96.

The defendant next frontally attacks the sentence itself,

insisting that it is unreasonably stiff. He points out that the

court "exceeded by 24 months" the parties' joint recommendation for

a 60-month sentence on the gun charge, "represent[ing] a 40%

increase" over the recommended sentence. This drastic upward

variance, he says, flouts the parsimony principle, which requires

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that a sentence be "sufficient, but not greater than necessary."

18 U.S.C. § 3553(a); see United States v. Rodríguez, 527 F.3d 221,

228 (1st Cir. 2008).

This argument lacks force. Normally, a sentencing court

is not bound by the parties' mutual embrace of a recommended

sentence.3 See, e.g., Flores-Machicote, 706 F.3d at 19-20.

Moreover, a mandatory minimum sentence is just that: the lowest

sentence that can lawfully be imposed. A sentencing court may

lawfully select a higher sentence up to the statutory maximum

(which in this case is life imprisonment). See, e.g., Narváez-

Soto, ___ F.3d at ___ [slip op. at 4-5, 13].

Here, the crimes of conviction are serious and the

defendant was found in possession of a small arsenal. Seen in this

light, the 24-month upward variance is not unconscionably steep.

Together with the 96-month sentence on the underlying drug charges,

it produced the same aggregate period of incarceration to which the

parties had previously agreed.

In most cases, there is not a single appropriate sentence

but, rather, a universe of reasonable sentences. See Walker, 665

F.3d at 234. That is true here — and on this record, we cannot say

3
We say "normally" because, under Federal Rule of Criminal
Procedure 11(c)(1)(C), a plea agreement accepted by the district
court may thereafter bind the court to a particular sentence. See,
e.g., United States v. Rivera-Martínez, 665 F.3d 344, 345 (1st Cir.
2011); United States v. Teeter, 257 F.3d 14, 28 (1st Cir. 2001).
That is not the case here.

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that the court's upward variance either brought the challenged

sentence outside this universe or resulted in an indefensible

outcome. We conclude, therefore, that the challenged sentence is

substantively reasonable and "sufficient, but not greater than

necessary" to further the legitimate goals of sentencing. 18

U.S.C. § 3553(a).

III.

Conclusion

We need go no further. For the reasons elucidated above,

the judgment of the district court is

Affirmed.

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