United States Court of Appeals
For the First Circuit
No. 13-2137
UNITED STATES OF AMERICA,
Appellee,
v.
JOSÉ JUAN ARROYO-MALDONADO, a/k/a Colombia,
a/k/a Víctor Dávila-Pérez, a/k/a Jesús Martínez
Alejandro-Quintanilla, a/k/a Antonio Mejías, a/k/a
Confesor Rodríguez, a/k/a Cristóbal Santiago-Colón,
a/k/a Dennis Sánchez, a/k/a Edwin Gutiérrez-Lomardi,
a/k/a Edwin Martínez-Aguayo, a/k/a Edwin Martínez,
a/k/a Héctor González, a/k/a Héctor Santiago, a/k/a
Jesús Martínez-Caballero, a/k/a José Arroyo-Maldonado,
a/k/a José Díaz, a/k/a Juan Arroyo-Maldonado, a/k/a
Juan Maldonado, a/k/a Pedro Ortiz, a/k/a Juan Mojica-Landrau,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Daniel R. Domínguez, U.S. District Judge]
Before
Torruella, Lynch, and Lipez,
Circuit Judges.
Lydia Lizarríbar-Masini, on brief for appellant.
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
TORRUELLA, Circuit Judge. This case concerns a challenge
to the sentence imposed on José Juan Arroyo-Maldonado ("Arroyo-
Maldonado") for fraud. Arroyo-Maldonado challenges the
reasonableness of his above Guidelines sentence of one hundred and
twenty months of imprisonment. After careful consideration, we
affirm his sentence.
I. Background
Because Arroyo-Maldonado pleaded guilty, our discussion
of the facts is drawn from the change-of-plea colloquy, the Pre-
Sentence Investigation Report ("PSR"), and the transcript of the
sentencing hearing. See United States v. Cintrón-Echautegui, 604
F.3d 1, 2 (1st Cir. 2010). From August 2010 to May 2011, Arroyo-
Maldonado, while incarcerated for other charges, led a scheme to
defraud financial institutions. Arroyo-Maldonado used prepaid cell
phones to contact co-defendants outside the Bayamón Penitentiary
and instructed them to prepare false checks for deposit at
financial institutions in order to fraudulently purchase motor
vehicles or fraudulently pay off loan accounts. After the checks
were deposited, Arroyo-Maldonado would have other co-defendants
acquire the vehicles at car dealerships or from individuals selling
them through newspaper classified advertisements. Arroyo-
Maldonado's actions were in violation of 18 U.S.C. § 1344(1) and
(2) and 18 U.S.C. § 1349.
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Arroyo-Maldonado pleaded guilty on March 19, 2013,
pursuant to a plea agreement. The parties recommended that Arroyo-
Maldonado be sentenced at the lower end of the applicable
Guidelines Sentencing Range ("GSR") if his criminal history
category was IV or higher (it was later calculated to be VI). As
part of the agreement, the parties stipulated to the Guidelines
calculations. The Guidelines provided that the base offense level,
pursuant to U.S.S.G. § 2B1.1(a)(2), was seven. A twelve-point
increase was added pursuant to U.S.S.G. § 2B1.1(b)(H) because the
stipulated amount of loss attributed to Arroyo-Maldonado was at
least $200,000, but less than $400,000; a two-point increase was
added under U.S.S.G. § 2B1.1(b)(2)(A) because Arroyo-Maldonado's
offense involved ten or more victims; and an additional two-point
increase was added because Arroyo-Maldonado was identified as an
organizer, leader, manager, or supervisor of a criminal activity,
pursuant to U.S.S.G. § 3B1.1(c). Finally, Arroyo-Maldonado
received a three-point reduction for acceptance of responsibility
pursuant to U.S.S.G. § 3E1.1(a) and (b), which resulted in a total
offense level of twenty.
On August 20, 2013, the court sentenced Arroyo-Maldonado
to one hundred and twenty months imprisonment, and granted eighteen
months credit for time served. The applicable GSR was seventy to
eighty-seven months of imprisonment, a fine of $7,500 to $1
million, and a supervised release term of not more than five years.
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At the sentencing hearing, a probation officer revealed that
Arroyo-Maldonado's criminal history had twenty-five points, which
is a criminal history category VI, and the court noted, "[t]his is
the first 25 point [white collar] case that I have [had] in my
career." The court also explained that "[t]he judge reacts to what
is on the record. What I have on the record is a gentleman that
has the worst white collar crime history that I have seen in my
career. The worst. I have never had anybody who has 25 points on
white collar." This timely appeal followed.1
II. Analysis
Arroyo-Maldonado alleges that the district court erred in
imposing a sentence of one hundred and twenty months, which is
above the applicable GSR.
This court's review of sentencing decisions involves
evaluation of both procedural and substantive reasonableness.
Arroyo-Maldonado contends that the district court committed a
significant procedural error by failing to consider the relevant
1
We note that even though Arroyo-Maldonado's plea agreement had
a waiver-of-appeal clause, his appeal is properly before us. Here,
Arroyo-Maldonado waived his right to appeal to the extent he was
subsequently sentenced in accordance with the terms and conditions
set forth in the plea agreement. The sentence ultimately imposed
was not in accordance with these terms and conditions, which
recommended a sentence toward the lower end of the applicable GSR
of seventy to eighty-seven months. Thus, as the Government
correctly concedes, the waiver-of-appeal does not bar the instant
appeal. See United States v. Murphy-Cordero, 715 F.3d 398, 400
(1st Cir. 2013) (holding that a waiver-of-appeal clause only
precludes appeals falling within its scope).
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sentencing factors and by giving undue weight to the nature and
circumstances of the offense. Arroyo-Maldonado also argues that
the district court erred procedurally by mistakenly believing that
the statute he pleaded guilty to contained a mandatory minimum
sentence of one hundred and twenty months. In support of this
contention, he highlights a portion of the sentencing hearing where
the court stated, "[t]he court has also taken into consideration
the plea agreement between the parties; however, it finds that a
statutory sentence at the lower end is more adequate considering
his criminal history and considering his nefarious white crime
incidents." Arroyo-Maldonado avers that 18 U.S.C. §§ 1344 and 1349
contain no mandatory minimum sentence.
As to the alleged substantive errors, Arroyo-Maldonado
suggests that the district court's sentence was unreasonable
because it gave greater weight to his criminal history and the
punitive component of a sentence than to "other factors such as
rehabilitation measures." Furthermore, he argues that the district
court sentenced him outside of the properly calculated GSR of
seventy to eighty-seven months solely based on punitive factors,
which makes the sentence substantively unreasonable. He therefore
contends that the court failed to abide by its obligation under the
Supreme Court's decision in Kimbrough v. United States, 552 U.S.
85, 101 (2007), to impose a sentence that is "sufficient, but not
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greater than necessary." Accordingly, Arroyo-Maldonado argues that
his sentencing decision must be vacated and remanded.
We review sentencing decisions under the advisory
Guidelines for "reasonableness, regardless of whether they fall
outside or inside the applicable GSR." United States v. Turbides-
Leonardo, 468 F.3d 34, 40 (1st Cir. 2006). Typically, we review
sentences imposed under the advisory Guidelines for abuse of
discretion. See Gall v. United States, 552 U.S. 38, 51 (2007);
United States v. Santiago-Rivera, 744 F.3d 229, 232 (1st Cir. 2014)
(citing United States v. Martin, 520 F.3d 87, 92 (1st Cir. 2008)).
However, "[w]hen a defendant fails to preserve an objection below,
the plain error standard supplants the customary standard of
review." United States v. Fernández-Hernández, 652 F.3d 56, 71
(1st Cir. 2011) (quoting United States v. Dávila-González, 595 F.3d
42, 47 (1st Cir. 2010)). "[R]eview for plain error entails four
showings: (1) that an error occurred (2) which was clear or obvious
and which not only (3) affected the defendant's substantial rights,
but also (4) seriously impaired the fairness, integrity, or public
reputation of judicial proceedings." United States v. Medina-
Villegas, 700 F.3d 580, 583 (1st Cir. 2012) (quoting United States
v. Duarte, 246 F.3d 56, 60 (1st Cir. 2001)). For this court to
reverse a district court's sentence under this standard, there must
be a "reasonable probability that, but for the error, the district
court would have imposed a different, more favorable sentence."
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Turbides-Leonardo, 468 F.3d at 39 (citing United States v.
Antonakopoulos, 399 F.3d 68, 78 (1st Cir. 2005)).
In reviewing sentences imposed under the advisory
Guidelines, "[t]he review process is bifurcated: we first determine
whether the sentence imposed is procedurally reasonable and then
determine whether it is substantively reasonable." United States
v. Clogston, 662 F.3d 588, 590 (1st Cir. 2011). Examples of
procedural errors identified by the Supreme Court include "failing
to calculate (or improperly calculating) the Guidelines range,
treating the Guidelines as mandatory, failing to consider the
§ 3553(a) factors, selecting a sentence based on clearly erroneous
facts, or failing to adequately explain the chosen sentence --
including an explanation for any deviation from the Guidelines
range." Gall, 552 U.S. at 51. If procedurally sound, we consider
the totality of the circumstances, including the extent of any
variance from the Guidelines, to determine whether the sentence is
substantively reasonable. See id.
The district court exercises broad discretion in weighing
the different sentencing factors and we remain deferential to its
sentencing determinations. See United States v. Colón-Rodríguez,
696 F.3d 102, 108 (1st Cir. 2012); see also United States v.
Vargas-Dávila, 649 F.3d 129, 131 (1st Cir. 2011) ("The length of an
increased sentence is necessarily a judgment call and, within wide
limits, deference is due to the trier's on-the-spot perceptions.").
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"[T]here is not a single reasonable sentence but, rather, a range
of reasonable sentences." Martin, 520 F.3d at 92. Accordingly,
"[w]e generally respect the district court's sentence as long as
the court has provided a plausible explanation, and the overall
result is defensible." United States v. Innarelli, 524 F.3d 286,
292 (1st Cir. 2008).
18 U.S.C. § 3553 requires a sentencing court to consider
a variety of potential sentences and explain in open court the
reasons for a particular sentence it imposes. See Medina-Villegas,
700 F.3d at 583. When a sentencing court deviates substantially
from the Guidelines, it must provide a more significant
justification than for a slight deviation. Martin, 520 F.3d at 91
(citing Gall, 552 U.S. at 50). However, a sentence outside the
applicable GSR does not come to the reviewing court with a
presumption of unreasonableness. Gall, 552 U.S. at 51. Although
required to explain its sentence, "a sentencing court is not
required to address frontally every argument advanced by the
parties, nor need it dissect every factor made relevant by 18
U.S.C. § 3553 'one by one, in some sort of rote incantation.'"
Turbides-Leonardo, 468 F.3d at 40-41 (quoting United States v.
Dixon, 449 F.3d 194, 205 (1st Cir. 2006)). Although we review a
sentencing court's explanation in open court, "a court's reasoning
can [also] often be inferred by comparing what was argued by the
parties or contained in the pre-sentence report with what the judge
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did." United States v. Jiménez-Beltre, 440 F.3d 514, 519 (1st Cir.
2006). Ultimately, "[t]he court's reasons for deviation should
typically be rooted either in the nature and circumstances of the
offense or the characteristics of the offender; must add up to a
plausible rationale; and must justify a variance of the magnitude
in question." Martin, 520 F.3d at 91.
Arroyo-Maldonado's sentence of one hundred and twenty
months of imprisonment was neither procedurally flawed nor
substantively unreasonable. Because Arroyo-Maldonado did not raise
any objections to his sentence below, we review for plain error.
Fernández-Hernández, 652 F.3d at 71 (citing Dávila-González, 595
F.3d at 47). The record reveals no procedural errors in the
imposition of Arroyo-Maldonado's sentence. First, at the sentencing
hearing, the district court correctly calculated the GSR, and
acknowledged that the Guidelines were only advisory. The district
court also clearly stated on the record that it considered all the
sentencing factors set forth in 18 U.S.C. § 3553(a). See
Santiago-Rivera, 744 F.3d at 233 (noting that a judge's statement
that he has considered all of the § 3553(a) factors is entitled to
significant weight). Moreover, the district court explicitly
referenced specific § 3553 factors. For example, the district
court explained that "in imposing a sentence [it] considered the
nature and circumstances of the offense and the defendant's history
and characteristics," see 18 U.S.C. § 3553(a)(1), and that it was
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"going to order a remedial measure, under Title 18, U.S.C.,
3553(a)(2)(D), that he receive mental and psychological
evaluation." Lastly, the district court stated that the chosen
sentence would be imposed "in order to afford ... deterrence and
to provide just punishment of the offense." See id. § 3553(a)(2)(A)
& (B). Accordingly, a review of the sentencing hearing reveals
that the district court sufficiently considered the § 3553(a)
factors. See Dixon, 449 F.3d at 205.
Furthermore, the district court adequately explained its
deviation from the GSR. At the sentencing hearing, the district
court explained that "[t]he judge reacts to what is on the record.
What I have on the record is a gentleman that has the worst white
collar crime history that I have seen in my career. The worst. I
have never had anybody who has 25 points on white collar." A
review of the PSR and the sentencing hearing transcript
demonstrates the district court's consideration of
Arroyo-Maldonado's criminal history as a significant reason for
deviating above the GSR. See Jiménez-Beltre, 440 F.3d at 519
(noting that it is permissible to infer a court's reasoning by
comparing the parties' arguments and the PSR to what the judge
actually did). Ultimately, the district court's reasoning for
deviating above the GSR is clearly based on Arroyo-Maldonado's
criminal history. See Martin, 520 F.3d at 91 ("The court's reasons
for deviation should typically be rooted either in the nature and
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circumstances of the offense or the characteristics of the
offender."). Accordingly, the district court's explanation of the
sentence it imposed and its reasons for deviating from the
applicable GSR was sufficient and did not amount to a procedural
error.
Arroyo-Maldonado's claim that the district court
mistakenly believed that the statute prescribed a mandatory minimum
is not supported by the record. As the Government correctly notes,
the district court never made any reference to a mandatory minimum
throughout the sentencing hearing, while referencing the statutory
maximum sentence of thirty years several times throughout the
proceeding. During the hearing, the court stated that "it finds
that a statutory sentence at the lower end is more adequate
considering his criminal history and considering his nefarious
white crime incidents." This statement alone is insufficient to
indicate that the district court felt constrained by a mandatory
minimum sentence. Furthermore, the record as a whole contains no
indication that the district court mistakenly believed that it was
bound by a mandatory minimum sentence. Accordingly, the district
court's sentencing of Arroyo-Maldonado did not suffer from any
procedural flaws. Therefore, we next consider whether the sentence
is substantively reasonable. See Gall, 552 U.S. at 51.
In considering the totality of the circumstances,
including the extent of the district court's variance from the
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Guidelines, the district court's one hundred and twenty month
sentence is substantively reasonable and therefore does not
constitute plain error. Arroyo-Maldonado's argument that the
district court erred substantively by giving greater weight to his
criminal history and the punitive component of a sentence than to
rehabilitative factors is not supported by this court's precedent.
See Clogston, 662 F.3d at 593 ("A sentencing court is under a
mandate to consider a myriad of relevant factors, but the weighting
of those factors is largely within the court's informed
discretion."); see also Martin, 520 F.3d at 92 ("[R]eversal will
result if - and only if - the sentencing court's determination
falls outside the expansive boundaries of that universe."). The
district court was well within its discretion in giving greater
weight to Arroyo-Maldonado's criminal history than other factors.
Therefore, the district court's weighing of the relevant sentencing
factors in a manner that Arroyo-Maldonado does not agree with does
not amount to plain error.
Arroyo-Maldonado's suggestion that the district court
sentenced him above the applicable GSR based solely on punitive
reasons is meritless. Although at the sentencing hearing the court
noted, "[p]unitive wise, I raised it," this isolated statement does
not indicate that the sole basis for the district court's sentence
was for punitive purposes. Indeed, as discussed above, the
district court's discussion of the relevant § 3553(a) factors
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demonstrates that it considered additional factors such as
Arroyo-Maldonado's need for psychological treatment,2 the
deterrence aspect of punishment, and Arroyo-Maldonado's criminal
history. Put simply, Arroyo-Maldonado's argument amounts to a
disagreement with the district court's weighing of the different
sentencing factors, and does not establish plain error in the
district court's sentence. See Clogston, 662 F.3d at 593 ("The
appellant in effect seeks to substitute his judgment for that of
the sentencing court. We cannot countenance such a
substitution.").
2
Although not raised by the parties below, we note that any
attempt to challenge the sentence on the basis of Tapia v. United
States, 131 S. Ct. 2382 (2011), would have been futile. In Tapia,
the Supreme Court held that a sentencing court may not impose or
lengthen a prison term in order to promote an offender's
rehabilitation. Id. at 2391 (finding a district court's sentence
improper where the length of the sentence was imposed to ensure
that the defendant could complete a 500-hour drug treatment
program). The court also noted, however, that "a court commits no
error by discussing the opportunities for rehabilitation within
prison or the benefits of specific treatment or training programs."
Id. at 2392. Expanding on Tapia, this court held that "no Tapia
error occurs unless rehabilitative concerns are being relied upon
either in deciding whether to incarcerate or in deciding the length
of the incarcerative sentence to be imposed. Thus, the mere
mention of rehabilitative needs, without any indication that those
needs influenced the length of the sentence imposed, is not Tapia
error. United States v. Del Valle-Rodríguez, 761 F.3d 171, 175
(1st Cir. 2014). Accordingly, even if it had been raised below,
the record reveals that Arroyo-Maldonado's sentence did not suffer
from any Tapia error. Though the district court mentioned
rehabilitative opportunities in its imposition of Arroyo-
Maldonado's one hundred and twenty month sentence, nothing on the
record indicates that the length of his sentence was based on the
need for rehabilitative measures. Rather, the record makes clear
that the district court's sentence was based on Arroyo-Maldonado's
extensive criminal history.
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The district court's one hundred and twenty month
sentence is neither procedurally flawed nor substantively
unreasonable. Here, like in Clogston, "[t]his was a defensible
result, and the court stated a plausible rationale for reaching it.
No more was required." Id.
III. Conclusion
In determining Arroyo-Maldonado's sentence, the district
court considered all sentencing factors, adequately explained its
sentence and deviation from the GSR, and imposed a reasonable
sentence in the totality of the circumstances. Accordingly, the
district court's imposition of a one hundred and twenty month
sentence was neither procedurally flawed nor substantively
unreasonable. Therefore, the district court's sentence is affirmed.
AFFIRMED.
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