United States Court of Appeals
For the First Circuit
No. 13-1743
UNITED STATES OF AMERICA,
Appellee,
v.
JOSUÉ DÍAZ-BERMÚDEZ,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Juan M. Pérez-Giménez, U.S. District Judge]
Before
Thompson, Kayatta, and Barron,
Circuit Judges.
John T. Ouderkirk, Jr. on brief for appellant.
Rosa Emilia Rodríguez-Vélez, United States Attorney, Nelson
Pérez-Sosa, Assistant United States Attorney, Chief, Appellate
Division, and Francisco A. Besosa-Martínez, Assistant United States
Attorney, on brief for appellee.
February 13, 2015
KAYATTA, Circuit Judge. Defendant-appellant Josué Díaz-
Bermúdez ("Díaz") brings two challenges to the 108-month sentence
entered by the district court after he pleaded guilty to one count
of possessing a firearm in furtherance of a drug trafficking crime
in violation of 18 U.S.C. § 924(c)(1)(A). After careful
consideration, we affirm.
I. Background
Because this appeal follows a guilty plea, we derive the
facts from the plea agreement, the change-of-plea colloquy, the
unchallenged portions of the presentence investigation report
("PSR"), and the sentencing hearing transcript. United States v.
Ocasio-Cancel, 727 F.3d 85, 88 (1st Cir. 2013). The resolution of
this appeal does not require a detailed recitation of the facts.
It will suffice to say that police officers found two handguns (one
of which was fully loaded with a round in the chamber), three
magazines, ammunition rounds, more than 700 small bags of crack
cocaine, 75 small bags of powder cocaine, and drug paraphernalia in
a vehicle in which Díaz was the sole passenger. Shortly after his
arrest, Díaz admitted to police officers that the drugs and some of
the paraphernalia belonged to him. Later, in his plea agreement,
he also admitted that he knowingly and intentionally possessed the
discovered firearms in furtherance of a drug trafficking crime.
Díaz was indicted for the firearm offense, 18 U.S.C.
§ 924(c)(1)(A), as well as one count of possession with intent to
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distribute an unspecified quantity of powder cocaine, 21 U.S.C.
§ 841(a)(1), (b)(1)(C), and one count of possession with intent to
distribute 28 grams or more of crack cocaine, id. § 841(a)(1),
(b)(1)(B). Díaz pleaded guilty to the firearm count pursuant to a
written plea agreement. In return, the government agreed to
recommend the mandatory minimum and guidelines sentence of 60
months in prison for the firearm count and to ask the court to
dismiss the two drug distribution counts. See 18 U.S.C.
§ 924(c)(1)(A)(i); U.S.S.G. § 2K2.4(b). At sentencing, the
district court agreed to dismiss the drug counts, but it rejected
the recommended 60-month sentence for the firearm count and instead
imposed a 108-month prison sentence. Díaz timely appealed.
II. Analysis
A. Plea Withdrawal
Díaz first argues that, under Fed. R. Crim. P. 11(c)(5),
he was entitled to withdraw his guilty plea after the district
court rejected the 60-month sentence recommended by both parties in
the plea agreement.1 This argument rests on a faulty premise.
1
The relevant portion of Rule 11(c)(5) ("Rejecting a Plea
Agreement") reads as follows:
If the court rejects a plea agreement containing
provisions of the type specified in Rule 11(c)(1)(A) or
(C), the court must do the following on the record and in
open court (or, for good cause, in camera): . . . (B)
advise the defendant personally that the court is not
required to follow the plea agreement and give the
defendant an opportunity to withdraw the plea . . . .
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Rule 11(c)(5) does not apply to the recommended sentence in Díaz's
plea agreement, which was a non-binding sentencing recommendation
under Rule 11(c)(1)(B).2 The plea withdrawal opportunity in Rule
11(c)(5) applies only to plea agreement provisions under Rule
11(c)(1)(A) (charge dismissals) and Rule 11(c)(1)(C) (binding,
stipulated sentences).3 This conclusion should come as no surprise
to Díaz. The plea agreement and the transcript of the change-of-
plea colloquy make it abundantly clear that Díaz knew that the
district court was free to reject the 60-month recommended sentence
and that he would not have an opportunity to withdraw his plea if
the court did so.
Fed. R. Crim. P. 11(c)(5).
2
The three types of plea agreement, as described in Rule
11(c)(1), provide that the prosecutor will:
(A) not bring, or will move to dismiss, other charges;
(B) recommend, or agree not to oppose the defendant's
request, that a particular sentence or sentencing range
is appropriate . . . (such a recommendation or request
does not bind the court); or
(C) agree that a specific sentence or sentencing range is
the appropriate disposition of the case . . . (such a
recommendation or request binds the court once the court
accepts the plea agreement).
Fed. R. Crim. P. 11(c)(1).
3
The case law Díaz cites in support of his argument is
equally inapplicable to his plea agreement: it addresses stipulated
sentences under Rule 11(c)(1)(C), which the court may only accept
or reject, and not non-binding recommendations under Rule
11(c)(1)(B). See, e.g., United States v. Self, 596 F.3d 245,
248–49 (5th Cir. 2010).
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Díaz tries to rescue his argument by pointing out that
his plea agreement was a hybrid Rule 11(c)(1)(A)/Rule 11(c)(1)(B)
agreement. This is true--in addition to the 60-month recommended
sentence under Rule 11(c)(1)(B), Díaz's plea agreement required the
government to move to dismiss the two drug distribution counts
under Rule 11(c)(1)(A). And whereas a Rule 11(c)(1)(B) sentencing
recommendation does not bind the court, the district court may only
accept or reject the Rule 11(c)(1)(A) charge dismissal provisions
of a plea agreement. Fed. R. Crim. P. 11(c)(3)(A). But here the
district court did accept the Rule 11(c)(1)(A) provision of Díaz's
plea agreement by granting the government’s motion to dismiss the
two drug counts. See United States v. Schiradelly, 617 F.3d 979,
982 n.3 (8th Cir. 2010). The district court therefore committed no
error by not giving Díaz an opportunity to withdraw his guilty
plea, and certainly no plain error, as Díaz concedes he failed to
object below. See United States v. Medina-Villegas, 700 F.3d 580,
583 (1st Cir. 2012).
B. Sentencing Challenge
Díaz next challenges the reasonableness of his above-
guidelines 108-month sentence. We normally review the
reasonableness of a sentence for an abuse of discretion, United
States v. Del Valle-Rodríguez, 761 F.3d 171, 176 (1st Cir. 2014),
but Díaz failed to raise below any of his current objections. We
therefore review for plain error. Medina-Villegas, 700 F.3d at
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583. This requires Díaz to show "a reasonable probability that,
but for the error, the district court would have imposed a
different, more favorable sentence." Id. (quoting United States v.
Mangual-Garcia, 505 F.3d 1, 15 (1st Cir. 2007)) (internal quotation
marks omitted).
In reviewing the reasonableness of a sentence, we first
look for procedural errors, including "failing to consider
appropriate sentencing factors, predicating a sentence on clearly
erroneous facts, or neglecting to explain the rationale for a
variant sentence adequately." Del Valle-Rodríguez, 761 F.3d at
176. Our review then shifts to the substantive reasonableness of
the sentence. Id.
1. Procedural Reasonableness
Díaz's claimed procedural error is that the district
court failed to consider the 18 U.S.C. § 3553(a) sentencing
factors, and instead imposed the 108-month sentence based solely on
its doubt about a statement he made in the PSR that his involvement
in the gun crime was the product of ignorance. We disagree.
First, the district court did not plainly fail to
consider the section 3553(a) factors. The court’s section 3553(a)
analysis was admittedly brief, and an easy resolution of this issue
is thwarted somewhat by a garbled sentencing transcript. After the
court found that the PSR adequately applied the guidelines, the
transcript shows that the sentencing judge said "[t]he Court has
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considered the other sentencing factors in 18 U.S. (e)(3.5) and
(unintelligible)." It seems fair to infer from context and the
reference to "other sentencing factors" that the district court
expressly cited section 3553(a) but that its statement was
mis-transcribed. The district court’s statement that it considered
the section 3553(a) factors "is entitled to some weight." United
States v. Vega-Salgado, 769 F.3d 100, 105 (1st Cir. 2014) (quoting
United States v. Clogston, 662 F.3d 588, 590 (1st Cir. 2011))
(internal quotation marks omitted). Moreover, the district court’s
review of Díaz’s criminal history and the facts of his arrest--the
court at one point corrected defense counsel on the location of the
first gun--showed that it was familiar with the nature of the
offense as well as Díaz’s characteristics and background. See
Medina-Villegas, 700 F.3d at 583-84. And, "[t]o cinch the matter,
[Díaz] has not identified any factors that make it likely that he
would receive a different sentence on remand." Id. at 584.
Second, the district court was permitted to consider the
sincerity of Díaz's explanation for his conduct, that "he did it
out of ignorance." Díaz himself placed his sincerity at issue. In
his sentencing memorandum and at the hearing, Díaz argued for a
60-month sentence based in part on his acceptance of responsibility
and recognition of the consequences of his actions. In doing so,
he specifically cited his statement in the PSR that "he did it out
of ignorance." Furthermore, whether Díaz was sincere in accepting
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responsibility was relevant for considering whether a sentence
"afford[s] adequate deterrence" and "protect[s] the public from
further crimes of the defendant." 18 U.S.C. § 3553(a)(2)(B)-(C);
see also United States v. Jiménez-Beltre, 440 F.3d 514, 519 (1st
Cir. 2006) (en banc) ("[A] court's reasoning can often be inferred
by comparing what was argued by the parties or contained in the
pre-sentence report with what the judge did."). Nor was the
district court's disbelief of Díaz's sincerity clearly erroneous.
Díaz's prior encounters with law enforcement and his admission that
the drugs belonged to him provided ample support for the district
court's doubt about his professed ignorance.
2. Substantive Reasonableness
Finding no procedural error, we turn to Díaz's contention
that his sentence is substantively unreasonable. He claims that
the district court did not sufficiently justify a sentence 48
months above the guidelines sentence of 60 months in prison.
U.S.S.G. § 2K2.4(b); 18 U.S.C. §924(c)(1)(A)(i); see Del
Valle-Rodríguez, 761 F.3d at 176 ("Where . . . a court imposes a
sentence above the GSR, it must justify the upward variance.").
The hallmarks of a substantively reasonable sentence are "a
plausible sentencing rationale and a defensible result." United
States v. Martin, 520 F.3d 87, 96 (1st Cir. 2008).
The primary reason the court gave for its sentence was
Díaz’s lack of sincerity in attributing his involvement in the
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offense to ignorance. The sincerity of Díaz’s explanation for the
offense was relevant to assessing the need for deterrence and his
capacity for rehabilitation. See 18 U.S.C. § 3553(a)(2)(B)-(D);
Martin, 520 F.3d at 94 ("The potential for rehabilitation also may
comprise grist for the sentencing court's mill."). This reason
alone may not have sufficed as a plausible rationale for such a
steep variance, but the district court also reviewed Díaz’s
criminal history and the offense characteristics in the context of
evaluating Díaz’s sincerity. Specifically, the court observed that
Díaz had been convicted under Puerto Rico law of possessing a
firearm without a license and of committing an assault requiring
medical attention. See U.S.S.G. § 2K2.4(b) cmt. n.2(B) ("A
departure may be warranted, for example, to reflect the seriousness
of the defendant's criminal history . . . ."). The court further
noted that Díaz was on probation for these offenses when he
committed the firearm offense at issue here. On plain error
review, these factors add up to a plausible rationale for a variant
sentence.
The reasonableness of the relative magnitude of the
48-month upward variance--an 80 percent increase over the
guidelines sentence of 60 months--is a closer question.
Nonetheless, given the due deference we owe the district court, we
cannot say that the ultimate result is indefensible on plain error
review. United States v. Flores-Machicote, 706 F.3d 16, 25 (1st
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Cir. 2013) ("A sentence is not substantively unreasonable merely
because the reviewing court would have sentenced the defendant
differently."). The offense conduct was serious--Díaz admitted to
possessing two handguns along with more than 700 small bags of
crack cocaine, 75 bags of powder cocaine, and the paraphernalia to
prepare more drugs for distribution. He committed the current
offense while serving probation for unlawfully possessing a firearm
and committing assault, a circumstance which pointed toward the
danger of recidivism. That Díaz chose to chalk his conduct up to
ignorance magnified this danger. And while the guidelines sentence
did not extend beyond the minimum sentence of 60 months, Díaz faced
a statutory maximum sentence of life imprisonment. 18 U.S.C.
§ 924(c)(1)(A)(i); see United States v. Rivera-González, No.
13-1620, 2015 WL 234774, at *5 (1st Cir. Jan. 20, 2015) (concluding
that a variant sentence was reasonable in part because section
924(c) carries a statutory maximum of life in prison). Under these
circumstances, and on plain error review, we cannot say that a 108-
month sentence was outside the universe of reasonable sentences.
See United States v. Taylor, 540 F. App'x 16, 17 (1st Cir. 2013)
(per curiam) (statutory maximum sentence of 120 months for being a
felon in possession of a firearm was substantively reasonable, even
though guidelines sentencing range was only 51 to 63 months);
United States v. Black, 581 F. App'x 263, 264 (4th Cir. 2014) (per
curiam) (108-month sentence for a section 924(c) conviction--48
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months above the 60-month guidelines sentence--was substantively
reasonable); United States v. White, 265 F. App'x 719, 729 (10th
Cir. 2008) (147-month sentence, which represented an upward
variance of 87 months, was substantively reasonable for a section
924(c) conviction); cf. United States v. Varela-Rivera, 551
F. App'x 583, 591 (1st Cir. 2014) (a twenty-year sentence for a
section 924(c) conviction carrying a 60-month guidelines sentence
was substantively reasonable on plain error review, when defendant
perjured himself, had a substantial criminal history, and would
have faced a thirty-year mandatory minimum sentence for a dismissed
count).
III. Conclusion
For the reasons stated above, we affirm the judgment of
the district court.
So ordered.
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