United States Court of Appeals
For the First Circuit
No. 14-1368
UNITED STATES OF AMERICA,
Appellee,
v.
JAN CARLO OQUENDO-GARCIA,
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
Howard, Lipez and Thompson,
Circuit Judges.
Raymond Rivera Esteves on brief for appellant.
Rosa Emilia Rodriguez-Velez, United States Attorney, Nelson
Perez-Sosa, Assistant United States Attorney, Chief, Appellate
Division and Carmen M. Marquez-Marín, Assistant United States
Attorney, on brief for appellee.
April 9, 2015
HOWARD, Circuit Judge. Jan Carlo Oquendo-Garcia appeals
his above-guidelines sentence for aiding and abetting the
possession of a rifle in furtherance of a drug-trafficking crime,
18 U.S.C. § 924(c)(1)(A). He argues that the court imposed an 84-
month incarcerative sentence in violation of Fed. R. Crim. P. 32(h)
and that the sentence was substantively unreasonable. Finding no
errors, we affirm.
Following a routine vehicle stop which escalated into a
police pursuit, law enforcement officers arrested Oquendo-Garcia
and Joshua Molina-Velazquez. Searches of their persons, the
vehicle, and the surrounding area yielded drugs, guns, ammunition,
and cash. As a result, the government charged both individuals
with possessing marijuana with intent to distribute, 21 U.S.C. §
841(a)(1), and possessing a rifle in furtherance of that drug-
trafficking crime, 18 U.S.C. § 924(c)(1)(A). Oquendo-Garcia pled
guilty to the gun offense, and the government dismissed the drug
count. Molina-Velazquez pled guilty to both.
As a result of his plea, Oquendo-Garcia faced a statutory
mandatory minimum sentence of 60 months in prison.
§ 924(C)(1)(a)(i). Section 2K2.4(b) of the Sentencing Guidelines
adopts that mandatory minimum as the recommended guidelines
sentence, and the probation department applied it in Oquendo-
Garcia's pre-sentence report. Nonetheless, the district court
determined that an 84-month sentence was more appropriate, given
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Oquendo-Garcia's extensive criminal history. Oquendo-Garcia
immediately moved for reconsideration, which the district court
denied. He then timely filed this appeal.
When appropriate, we apply a two-step test to evaluate
the reasonableness of a criminal sentence. United States v.
Politano, 522 F.3d 69, 72 (1st Cir. 2008). First, we consider
whether the district court committed any procedural missteps when
imposing the sentence. Id. Then, we ask whether the sentence was
substantively reasonable. Id. Oquendo-Garcia presents arguments
at both steps.
Initially, Oquendo-Garcia asserts that the district court
departed from the sentencing guidelines, without first providing
him with the required notice. See Fed. R. Crim. P. 32(h) (noting
that "[b]efore the court may depart from the applicable sentencing
range on a ground not identified for departure either in the
presentence report or in a party's prehearing submission, the court
must give the parties reasonable notice that it is contemplating
such a departure"). He acknowledges that plain error applies to
this claim and that he must therefore show an error that "was clear
or obvious, and that it both affected his substantial rights and
seriously impaired the fairness, integrity, or public reputation of
judicial proceedings." United States v. Ramos-González, 775 F.3d
483, 499 (1st Cir. 2015) (citation and internal quotation marks
omitted).
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To establish an error, he points to Application Note 2 of
U.S.S.G. § 2K2.4(b) which says, "[A] sentence above the minimum
term required by 18 U.S.C. § 924(c) . . . is an upward departure
from the guideline sentence . . . [which] may be warranted, for
example, to reflect the seriousness of the defendant's criminal
history." Accordingly, he believes that the court's increase here
was, by definition, a departure.
Oquendo-Garcia's claim turns on whether the court
departed or varied from the guidelines, as Rule 32(h) notice is
only required for the former. Irizarry v. United States, 553 U.S.
708, 716 (2008). As we have noted, "departure" has a technical
meaning in the sentencing context; it refers to specific deviations
imposed in accordance with a statute or a specific guidelines
provision. United States v. Vega-Santiago, 519 F.3d 1, 3 (1st Cir.
2008) (en banc). Variances, meanwhile, exist as a result of the
advisory nature of the guidelines. They permit the district court,
"after calculating the guideline sentence (including any
departure), to impose a different sentence based on the broader
criteria identified in the statute." Id. We will treat a
"sentence above [a] statutory mandatory minimum [under section
924(c)] as an upward variance," United States v. Rivera-González,
776 F.3d 45, 49 (1st Cir. 2015), absent some indication in "the
sentencing record [which] persuades us that the district court
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intended to or in fact applied an upward departure," see United
States v. Aponte-Vellón, 754 F.3d 89, 93 (1st Cir. 2014).
Here, the sentencing record makes plain that the court
applied a variance, rather than a departure. First, nothing in the
record -- ranging from the PSR to the sentencing hearing --
suggests that the district court ever considered a departure under
Application Note 2. Further, the district court followed the steps
typical of a variance when imposing the sentence: it calculated the
guidelines range, examined the factors, and imposed an above-
guidelines prison term. See, e.g., Aponte-Vellon, 754 F.3d at 93.
If there were any question, the court's explicit invocation of 18
U.S.C. § 3553(a) at the time that it augmented the sentence sheds
light on the court's intent. For the simple reason that the court
varied, rather than departed, there was no Rule 32(h) error.1
Oquendo-Garcia also challenges the substantive
reasonableness of his sentence. He argues that he was less
culpable than his co-defendant since he was convicted on only one
of the two charges, having only constructively possessed the rifle.
In contrast, Molina-Velazquez had actual possession of the rifle
1
In any event, Oquendo-Garcia would be unable to establish
that the error affected his substantial rights on plain error
review. The PSR and the plea agreement provided him with notice
that the court could impose an above-guidelines sentence under
§ 3553(a). He was thus on notice that the court could augment his
sentence based on his criminal history.
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and was convicted of both crimes. Yet, the court only sentenced
Molina-Velazquez to 66 months in prison.
We review this substantive challenge under the
"deferential abuse-of-discretion standard." United States
v. Battle, 637 F.3d 44, 50 (1st Cir. 2011) (citation and internal
quotation marks omitted). "[T]here is not a single appropriate
sentence but, rather, a universe of reasonable sentences," Rivera-
González, 776 F.3d at 52, and our goal is to determine whether the
district court provided "a plausible sentencing rationale and a
defensible result," United States v. Martin, 520 F.3d 87, 96 (1st
Cir. 2008). When considering a disparity-based argument in
particular, our concern is primarily "with national disparities,"
though "we have also examined arguments . . . that a sentence was
substantively unreasonable because of the disparity with the
sentence given to a co-defendant." United States v. Reverol-
Rivera, 778 F.3d 363, 366 (1st Cir. 2015).
Even if we agreed that Oquendo-Garcia was "less" culpable
than Molina-Velazquez, his argument nonetheless fails since the
district court imposed a reasonable sentence based on Oquendo-
Garcia's individualized criminal history. The sentencing judge
emphasized that this was Oquendo-Garcia's third firearm conviction,
on top of nine other weapon charges. The court stated, "[Oquendo-
Garcia] is not unfamiliar with weapons . . . [A]pparently he's been
very much attracted to firearms." This was, moreover, only a
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sampling of the defendant's criminal past. Thus, relying on this
criminal history, the court reasonably determined that an above-
guidelines sentence was necessary to promote "respect for the law"
and to protect "the public from further crimes by Mr. Oquendo."
These are defensible concerns. See 18 U.S.C. § 3553(a); see also
United States v. Del Valle-Rodríguez, 761 F.3d 171, 176 (1st Cir.
2014) (noting that concerns over recidivism are valid reasons to
impose an upward variance); United States v. Flores-Machicote, 706
F.3d 16, 23 (1st Cir. 2013) (stating that the need for deterrence
"must be assessed in case-specific terms" and can justify an upward
variance").2
Oquendo-Garcia argues that he and Molina-Velazquez were
sufficiently alike and thus the court's justification cannot
account for the sentencing disparity. But he does little more than
broadly profess that the two cohorts had "similar criminal
histories." While he provides a single record citation in the
facts section of his brief to his co-defendant's PSR, he does not
actually tell us what information in the PSR would support his
claim, nor does he provide us with the actual document. He has
quite simply failed to sufficiently develop this argument.
2
Oquendo-Garcia also states that the "district court erred in
considering and applying Oquendo's criminal history in its
sentencing calculus." But, he fails to provide any explanation of
how the court erred in that respect. Accordingly, any such claim
is waived. See United States v. Oladosu, 744 F.3d 36, 39 (1st
Cir. 2014) ("Because the argument is underdeveloped, it is
waived.").
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Despite the lack of argument, we have reviewed Molina-
Velazquez's PSR anyway to assess the validity of Oquendo-Garcia's
claim, given the disparity in the co-defendants' sentences. A
comparison of the two, however, shows that the defendants were not
"similarly situated," United States v. Vargas, 560 F.3d 45, 52 (1st
Cir. 2009), such that giving Oquendo-Garcia a longer sentence than
Molina-Velazquez was unreasonable. The PSRs showed that Oquendo-
Garcia had more weapons-based (and overall) convictions and arrests
than did Molina-Velazquez. United States v. Mateo-Espejo, 426 F.3d
508, 514 (1st Cir. 2005) ("A well-founded claim of disparity,
however, assumes that apples are being compared to apples."). And,
the district court specifically noted when sentencing Oquendo-
Garcia that it was concerned with his "prior criminal offenses,"
including convictions and arrests, and his apparent attraction to
firearms.
Accordingly, since the district court's "explanation,
though brief, contained a clear, cogent, and coherent rationale for
its decision," United States v. Madera-Ortiz, 637 F.3d 26, 31 (1st
Cir. 2011), and since there were no other errors, we affirm.
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