United States v. Quinones-Melendez

United States Court of Appeals
For the First Circuit

No. 14-1369
No. 14-1371

UNITED STATES OF AMERICA,

Appellee,

v.

JUAN G. QUIÑONES-MELÉNDEZ,

Defendant, Appellant.

APPEALS FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO

[Hon. José Antonio Fusté, U.S. District Judge]

Before

Kayatta, Selya, and Barron,
Circuit Judges.

Rafael F. Castro Lang on brief for appellant.
Francisco A. Besosa-Martínez, Assistant United States
Attorney, Nelson Pérez-Sosa, Assistant United States Attorney,
Chief, Appellate Division, and Rosa Emilia Rodríguez-Vélez, United
States Attorney, on brief for appellee.

July 1, 2015
 BARRON, Circuit Judge. The defendant challenges his

conviction and sentence for various gun crimes on a number of

grounds. Finding no error, we affirm.

I.

On August 8, 2013, a federal grand jury in Puerto Rico

indicted Juan G. Quiñones-Meléndez on one count of unlawfully

possessing a machinegun, in violation of 18 U.S.C. § 922(o).

Roughly two weeks later, on August 21, 2013, another federal grand

jury in Puerto Rico indicted Quiñones on two further counts: one

count of unlawfully possessing a firearm as a convicted felon, in

violation of 18 U.S.C. § 922(g)(1), and one count of aiding and

abetting another individual, Orlando Mojica-Rodríguez, in the

unlawful possession of automatic firearms, in violation of 18

U.S.C. § 922(o). Quiñones subsequently pled guilty, in separate

agreements, to the August 8 unlawful-possession count and the

August 21 aiding-and-abetting count.

In the plea agreements, the parties agreed that

Quiñones's base offense level was 22 and that Quiñones deserved a

three-level reduction in his offense level based on acceptance of

responsibility. The agreements contained no stipulation regarding

Quiñones's criminal history category. The parties did agree,

however, that they would recommend to the District Court the higher

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end of the applicable guidelines range depending on the criminal

history category. The parties also stipulated that, although

neither side would seek any further departures or variances from

the guidelines limit, the government could argue that the sentences

for the two pleaded-to offenses should run consecutively, and the

defense could argue that the two sentences should run concurrently.

The probation office determined that Quiñones's criminal

history fell into category II under the guidelines, leading to

guidelines ranges of 33-41 months and 41-51 months, respectively,

for each of Quiñones's offenses. At the sentencing hearing, both

the government and the defense argued for the higher end of that

range, but Quiñones argued for the sentences for each offense to

run concurrently to one another, while the government argued for

consecutive sentences for a total of 92 months. The District

Court, at the end of the lengthy sentencing hearing, decided that

neither the sentence recommended by the government nor the sentence

recommended by the defense sufficiently accounted for the

seriousness of the offense, the defendant's personal

characteristics, the context in which the offenses were committed,

and a number of other factors. The District Court thus imposed a

higher sentence of 60 months for each offense. And further, the

District Court decided that the sentences for each offense would

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run consecutively, so that the total sentence was 120 months in

prison.

Quiñones now appeals on a number of grounds.1 We discuss

each contention in turn.

II.

According to Quiñones, the prosecution breached the plea

agreements by seeking at the sentencing hearing to introduce video

footage depicting Quiñones's August 20, 2013, arrest. The video

shows Quiñones, who was then at a gas station, attempt to flee

from law enforcement by backing his car into a U.S. Marshals

vehicle -- which, though unmarked, had strobe lights that were

visible but not operating during this episode. The video also

shows Quiñones surrender when the Marshals -- who were then wearing

bulletproof vests emblazoned with the words "U.S. Marshal" --

appear in his sightline.

Quiñones contends that the government sought to

introduce this video evidence to convince the District Court to

1 The plea agreements did contain waiver-of-appeal clauses
under which Quiñones agreed to waive his right to appeal the
judgment and sentence should the District Court sentence him in
accordance with the terms of the agreements. But because the
District Court did not sentence Quiñones in accordance with the
terms of the plea agreements, the government does not seek to
enforce the waiver-of-appeal provisions.

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apply an enhancement under the sentencing guidelines for reckless

endangerment or obstruction of justice. Quiñones thus contends

that the government was attempting an end-run around the plea

agreements, which explicitly provided that neither the government

nor the defense would seek any departures or variances from the

recommended guidelines limit.

The government is barred not only from "explicit

repudiation of the government's assurances" contained in a plea

agreement but also -- "in the interests of fairness" -- from

undertaking "end-runs around them." United States v. Rivera-

Rodríguez, 489 F.3d 48, 57 (1st Cir. 2007) (quoting United States

v. Voccola, 600 F. Supp. 1534, 1537 (D.R.I. 1985)). But in this

case, there was no such end-run.

Quiñones's plea agreements specifically contemplated

that the government could argue that the sentences for the two

pleaded-to offenses should run consecutively. And a district

court, in deciding whether to impose concurrent or consecutive

sentences, see 18 U.S.C. § 3584(a), must consider the background

and characteristics of the offender, the nature and circumstances

of the offenses, the need for imposing consecutively running

sentences, and the other sentencing "factors set forth in

section 3553(a)," id. § 3584(b). Indeed, 18 U.S.C. § 3661

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specifies that "[n]o limitation shall be placed on the information

concerning the background, character, and conduct of a person

convicted of an offense which a court of the United States may

receive and consider for the purpose of imposing an appropriate

sentence."

We thus agree with the District Court that the

prosecution was offering evidence to assist the District Court in

deciding whether to impose consecutive or concurrent sentences,

just as the parties' agreements allowed. And, in consequence, we

hold that the prosecution did not breach the plea agreements. See

United States v. Miranda-Martinez, ___ F.3d ___, 2015 WL 3876601

(1st Cir. June 24, 2015).

III.

The next issue concerns whether the sentence the

District Court imposed was unreasonable. We review a sentence's

reasonableness for abuse of discretion. United States v. Zapata-

Vázquez, 778 F.3d 21, 23 (1st Cir. 2015). In doing so, we begin

by "first look[ing] for procedural error," including to see whether

the District Court "'fail[ed] to consider appropriate sentencing

factors, predicat[ed] a sentence on clearly erroneous facts, or

neglect[ed] to explain the rationale for a variant sentence

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adequately.'" Id. (quoting United States v. Del Valle-Rodríguez,

761 F.3d 171, 176 (1st Cir. 2014)).

A.

1.

Quiñones contends that we need to remand the case for

resentencing before a different judge because the District Court

relied on extra-record material that led it to acquire a "pre-

formed bias" against him as a "very dangerous individual." But

the only cases Quiñones cites in support of the remedy he requests

are ones in which procedural error was already established because

the district court provided the defendant with no meaningful

opportunity to prepare and present a response to material on which

the sentence was based. See, e.g., United States v. Zavala-Martí,

715 F.3d 44, 56-57 (1st Cir. 2013); United States v. Berzon, 941

F.2d 8, 21 (1st Cir. 1991). And so, following his lead, we look

to see whether the District Court committed any procedural error

by drawing on extra-record information.

Quiñones's contention that the District Court did just

that traces in part to the sentencing hearing for Orlando Mojica-

Rodríguez, Quiñones's co-defendant for the August 21, 2013,

offenses. During that hearing -- held on January 16, 2014, nearly

two months before Quiñones's sentencing hearing -- the District

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Court thrice referred to "the person who was with" Mojica as a

"very dangerous individual." And it is uncontested that Quiñones

was the "person" to whom the District Court was then referring.2

"It is abundantly clear," however, that a sentencing

court has "the ability to consider information from court

proceedings at which the defendant was not present, such as a co-

defendant's sentencing hearing." United States v. Millán-Isaac,

749 F.3d 57, 69 (1st Cir. 2014). To be sure, that discretion is

bounded. The sentencing court must "base its sentence only upon

information with 'sufficient indicia of reliability to support its

probable accuracy,'" id. at 70 (quoting United States v. Gallardo-

Ortiz, 666 F.3d 808, 811 (1st Cir. 2012), and "afford the defendant

an opportunity to respond to the factual information offered

against him at sentencing," id. But the District Court did not

cross those bounds here.

We see no basis for deeming the information the District

Court relied upon to be unreliable. The District Court explained

at Quiñones's sentencing hearing the precise basis for its

expressed view that Quiñones was a "very dangerous individual."

2
The District Court, during Mojica's sentencing hearing,
specifically referred to the "very dangerous individual" as "El
Manco." "El Manco" is Quiñones's nickname.

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The District Court cited to Mojica's presentence report in general,

which the District Court characterized as "very similar" to the

information in Quiñones's own presentence report. And the District

Court cited more specifically to the fact that Quiñones was a

federal fugitive when he and Mojica were arrested and to Quiñones's

extensive criminal record. Those facts are corroborated by the

unobjected-to information in Quiñones's own presentence report.

Nor can Quiñones credibly claim to have been unfairly

surprised by the information on which the District Court based its

judgment that Quiñones was a "very dangerous individual." See id.

(a criminal defendant must not "be placed in a position where,

because of his ignorance of the information being used against

him, he is effectively denied an opportunity to comment on or

otherwise challenge material information considered by the

district court" (quoting Rivera-Rodríguez, 489 F.3d at 54)). In

fact, Quiñones's counsel was the first one to raise the concern

about the District Court's statements regarding Quiñones at the

earlier sentencing hearing for Mojica. This case is thus not like

the one on which Quiñones relies, in which we held it was

procedural error to rely on evidence from an earlier proceeding

involving another defendant at which the appellant was not present.

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See United States v. Avilés-Santiago, 558 F. App'x 7, 10 (1st Cir.

2014).

Finally, Quiñones does suggest that the District Court

also relied for its opinion about Quiñones's dangerousness on an

unidentified source of information not included in the record in

Quiñones's case or in Mojica's. But Quiñones's counsel has never

identified what any such extra-record source of information might

be -- either when asked to do so by the District Court at the

sentencing hearing or in these appeals. And thus, this wholly

unfounded assertion supplies no possible ground for questioning

the propriety of the District Court's actions at sentencing. We

thus find no error here.3

2.

Quiñones also challenges the District Court's

application of the sentencing guidelines. According to Quiñones,

the sentencing guidelines expressly recommend that a district

court impose concurrent -- not consecutive -- sentences where a

3 Nor do we find error in the District Judge's admission that,
before sentencing, he discussed Quiñones's case with his law clerk.
Although ex parte contact between a law clerk and members of a
jury may constitute reversible error, Standard Alliance Indus.,
Inc. v. Black Clawson Co., 587 F.2d 813, 828-29 (6th Cir. 1978),
a judge clearly does not transgress any lawful bounds by privately
discussing cases with his chambers staff.

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defendant is convicted of multiple offenses that are "grouped"

under the guidelines. See U.S.S.G. § 5G1.2. Quiñones contends

that because his two pleaded-to offenses were "grouped" offenses

under U.S.S.G. § 3D1.2(d), the District Court erred in failing to

"specifically address[] the Guidelines' recommendation for a

concurrent sentence for the grouped offenses." See Gall v. United

States, 552 U.S. 38 (2007).

But the District Court was presented with this argument

at the sentencing hearing, and, upon hearing it, seemed to accept

the legal basis for it. The District Court went on, however, to

explain in detail its reasons for sentencing the defendant to

consecutive 60-month sentences rather than a concurrent term. The

record shows that the District Court, in deciding whether to impose

the sentences consecutively or concurrently, adequately

"consider[ed], as to each offense for which a term of imprisonment

is being imposed, the factors set forth in section 3553(a)." 18

U.S.C. § 3584(b); see Setser v. United States, 132 S. Ct. 1463,

1468 (2012) ("Judges have long been understood to have discretion

to select whether the sentences they impose will run concurrently

or consecutively with respect to other sentences that they

impose."). We thus reject this challenge to the District Court's

application of the sentencing guidelines, as the record does not

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support the defendant's contention that the District Court erred

in failing to account for the guidelines in opting for consecutive

sentences.

B.

The final issue the government addresses is whether the

120-month sentence the District Court imposed is substantively

reasonable. It is far from clear that Quiñones himself raises

this issue. But, in any event, we have no trouble concluding that

the sentence imposed is a substantively reasonable one.

"The hallmarks of substantively reasonable sentence are

'a plausible sentencing rationale and a defensible result.'"

Zapata-Vázquez, 778 F.3d at 24 (quoting United States v. Martin,

520 F.3d 87, 96 (1st Cir. 2008)); see also United States v. Denson,

689 F.3d 21, 27 (1st Cir. 2012) (substantive reasonableness

"depends largely on whether the sentence imposed represents a

defensible result supported by a plausible rationale"). In

fashioning Quiñones's sentence, the District Court relied on the

defendant's many past "brushes . . . with the law," the heightened

dangerousness posed by automatic weapons of the sort Quiñones had

admitted possessing, and the seriousness of firearm offenses in

Puerto Rico. The District Court also specifically found that there

was no basis in the record to find that the defendant suffered

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from any mental disorder that would mitigate the seriousness of

his offenses. And the District Court further addressed each of

the sentencing factors set forth in 18 U.S.C. § 3553(a) directly.

The District Court thus provided more than a plausible sentencing

rationale for the 120-month sentence, which on these facts is a

defensible result. We accordingly reject this claimed error --

to the extent it is made at all -- as well.

IV.

The prosecution did not breach its plea agreements with

Quiñones, and the sentence the District Court imposed was neither

procedurally nor substantively unreasonable. As a consequence, we

affirm.

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