United States v. Suarez-Gonzalez

United States Court of Appeals
For the First Circuit

Nos. 13-1594
13-1597

UNITED STATES OF AMERICA,

Appellee,

v.

JOE L. SUÁREZ-GONZÁLEZ, a/k/a JOEY,

Defendant, Appellant.

APPEALS FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF PUERTO RICO

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

Before

Torruella, Selya and Lipez,
Circuit Judges.

Guillermo A. Macari-Grillo on brief for appellant.
Rosa Emilia Rodríguez-Vélez, United States Attorney, Nelson
Pérez-Sosa, Assistant United States Attorney, Chief, Appellate
Division, and Thomas F. Klumper, Assistant United States Attorney,
on brief for appellee.

July 23, 2014
 SELYA, Circuit Judge. Defendant-appellant Joe L. Suárez-

González pleaded guilty to an array of counts, spread over two

separate indictments, involving the theft and/or conversion of

postal money orders from the United States Postal Service (USPS).

The district court sentenced him to serve twenty-one months in

prison. The appellant challenges the procedural and substantive

reasonableness of his sentence. The first of these challenges

presents a question of first impression with respect to the

interpretation of a guideline enhancement provision, USSG

§2B5.1(b)(2)(A). Finding both his procedural and substantive

challenges unavailing, we affirm.

I. BACKGROUND

Because these appeals trail in the wake of guilty pleas,

we glean the facts from the plea agreements, the change-of-plea

colloquy, the uncontested portions of the presentence investigation

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

See United States v. Nguyen, 618 F.3d 72, 73 (1st Cir. 2010).

In the fall of 2011, the appellant was employed as a

construction worker in connection with the remodeling of a postal

station in San Juan, Puerto Rico (the Facility). While toiling

there, he stole and cashed four USPS money orders. He then filched

a key to the Facility and gave it to a confederate (Santiago Peña).

Using this key, Peña surreptitiously entered the Facility and,

acting on the appellant's instructions, printed 126 bogus USPS

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money orders. The pair later arranged for others to go to post

offices in the area and cash the money orders.

This scheme unraveled after postal inspectors received a

tip about an attempt to redeem a suspicious money order. The

ensuing investigation produced two indictments. After initially

maintaining his innocence, the appellant elected to plead guilty to

126 counts, spread over both indictments, of aiding and abetting

others in stealing or knowingly converting postal money orders.

See 18 U.S.C. §§ 2, 500.

The plea agreement referable to the first of the two

indictments suggested some preliminary guideline calculations: a

base offense level of nine, see USSG §2B5.1(a); a four-level

enhancement for loss in excess of $10,000 but not more than

$30,000, see id. §2B5.1(b)(1)(B); and a two-level reduction for

acceptance of responsibility, see id. §3E1.1(a). If the

appellant's criminal history score placed him in criminal history

category (CHC) I, the guideline sentencing range (GSR) was

estimated to be eight to fourteen months.

The plea agreement referable to the second indictment

also suggested a series of preliminary guideline calculations: a

base offense level of nine, see id. §2B5.1(a); a six-level

enhancement for loss in excess of $30,000 but not more than

$70,000, see id. §2B5.1(b)(1)(B); and a two-level reduction for

acceptance of responsibility, see id. §3E1.1(a). If the

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appellant's criminal history score placed him in CHC I, the GSR was

estimated to be twelve to eighteen months.

Both plea agreements permitted the appellant to request,

without opposition from the government, a split sentence (that is,

a sentence to be served partly in prison and partly in home

confinement). Moreover, the government stipulated that it would

not oppose concurrent sentences.

The district court accepted the appellant's guilty pleas

at an omnibus change-of-plea hearing. At the conclusion of this

hearing, the court ordered the preparation of a PSI Report. When

received, the PSI Report treated the two indictments as a unit and

grouped all of the counts of conviction for a combined offense

level of nine. See id. §3D1.2(d). It then recommended an eight-

level enhancement for an aggregate monetary loss above $70,000 but

not more than $120,000, see id. §2B5.1(b)(1)(B), and a three-level

reduction for acceptance of responsibility, see id. §3E1.1(b). It

likewise recommended a two-level enhancement under USSG

§2B5.1(b)(2)(A) because the appellant "possessed or had custody of

or control over a counterfeiting device or materials used for

counterfeiting." Finally, it tabulated the appellant's criminal

history score and recommended that he be placed in CHC II.

At sentencing, the district court embraced the grouping

concept and the offense level adjustments. However, the court

calculated the appellant's criminal history score more charitably

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and placed him in CHC I. These determinations yielded a GSR of

twenty-one to twenty-seven months, and the court imposed a bottom-

of-the-range incarcerative sentence. These timely appeals ensued.

II. ANALYSIS

In this venue, the appellant claims that his sentence is

both procedurally and substantively unreasonable. We proceed

directly to these arguments, bypassing the government's problematic

contention that these appeals are barred by the waiver-of-appeal

provision contained in each of the appellant's plea agreements.

See United States v. Pérez-Crespo, 557 F. App'x 6, 7 n.1 (1st Cir.

2014) (adopting a similar approach).

A. The Procedural Claims.

The appellant argues that his sentence is procedurally

flawed for two reasons. We address these arguments separately.

1. USSG §2B5.1(b)(2)(A). The appellant concedes the

correctness of all but one of the district court's guideline

calculations. He challenges only the two-level enhancement under

USSG §2B5.1(b)(2)(A).

By its terms, this enhancement applies to a defendant who

has "manufactured or produced any counterfeit obligation . . . of

the United States, or possessed or had custody of or control over

a counterfeiting device or materials used for counterfeiting."

USSG §2B5.1(b)(2)(A). The appellant says that he did not use a

"counterfeiting device." Rather, the postal money orders at issue

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here were genuine (that is, printed with conventional USPS

equipment on authentic postal money order blanks). Therefore, the

enhancement does not pertain.

We review the district court's interpretation of the

sentencing guidelines de novo. See United States v. Clark, 685

F.3d 72, 79 (1st Cir. 2012). Here, the appellant's argument turns

on the meaning of "counterfeiting device." As is true of the

interpretation of statutes, the language of a guideline provision

furnishes the most reliable guide to its interpretation. See

United States v. Dixon, 449 F.3d 194, 202 (1st Cir. 2006). When

the language of the guideline is plain and unambiguous, that is the

end of the matter. See id. at 203. If, however, the language of

the guideline leaves legitimate room for doubt, an inquiring court

may look to other interpretive aids, including context and

background. See United States v. Alvarez-Cuevas, 415 F.3d 121, 125

(1st Cir. 2005).

We think that the term "counterfeiting device" has a

plain, ordinary, and unambiguous meaning: a device used for

counterfeiting. While the guidelines do not define this term, the

Sentencing Commission has explicitly defined a "counterfeit" as "an

instrument that has been falsely made, manufactured, or altered."

USSG §2B5.1, comment. (n.1). In turn, "alter" means "[t]o make a

change in; to modify; to vary in some degree; to change some of the

elements or ingredients or details without substituting an entirely

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new thing or destroying the identity of the thing affected."

Black's Law Dictionary 77 (6th ed. 1990).

This definition of "counterfeit" informs the meaning of

the term "counterfeiting device." By arranging for the printing of

fake dollar amounts on otherwise worthless money order blanks, the

appellant "altered" those blanks — and this alteration was

accomplished through the use of a machine. Taken at face value,

the appellant's actions comprise alteration of postal money orders

through the use of a mechanical counterfeiting device. No more is

exigible to warrant application of the enhancement.

The appellant rejoins that the word "alter[]" in the

counterfeiting context is a term of art. He notes that the

definition of "counterfeit" was added to the sentencing guidelines

in 2009, see USSG App. C, Amend. 731 (2009), and that prior to that

time the term was undefined. He correctly points out that the

addition of the definition was intended to resolve differing

judicial treatment of so-called "bleached note" cases — cases in

which defendants chemically stripped genuine United States currency

and reprinted it with higher values. See id.; compare, e.g.,

United States v. Schreckengost, 384 F.3d 922, 923-25 (7th Cir.

2004), with, e.g., United States v. Dison, No. 07-50072-04, 2008 WL

351935, at *1-2 (W.D. La. Feb. 8, 2008). The new definition made

pellucid that "bleached note" schemes would qualify as

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counterfeiting because such schemes involved the false alteration

of genuine monetary instruments.

Building on this foundation, the appellant insists that

the word "alter" is meant to apply exclusively to the "bleached

note" context. But this reading is far too crabbed. Although part

of the impetus for the 2009 amendment was to clarify that "bleached

note" cases are subject to the enhancement under §2B5.1(b)(2)(A),

the language of the amendment was in no way limited to such cases.

To the contrary, the Sentencing Commission stated unreservedly that

the new definition was meant to insure that "altered instruments

are treated as counterfeit and sentenced under §2B5.1." USSG App.

C, Amend. 731 (2009). The appellant's offenses plainly involved

altered instruments.

To cinch matters, in crafting the amendment the

Sentencing Commission expressly recognized that new technologies

had "rendered obsolete the previous distinction in the guidelines

between an instrument falsely made or manufactured in its entirety

and a genuine instrument that is altered." Id.1 Based on this

language, we find it hard to accept the appellant's interpretation

that bleached notes are the only "altered" instruments to which

this enhancement is meant to apply.

1
The reference to the "previous distinction" reflects an
earlier application note, which had indicated that "counterfeit"
was not meant to apply to "genuine instruments that have been
altered." USSG §2B5.1, comment. (n.3) (Nov. 2008). The 2009
amendment deleted this application note.

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 The appellant next argues that the "device" that Peña

used at the appellant's direction to create bogus money orders was

an authentic money order printer. This fact, he says, insulates

him from any claim that the printer was a counterfeiting device

and, thus, insulates him from the enhancement. That argument is

hopeless. The authenticity of the printer in no way diminishes the

counterfeit nature of the ersatz money orders printed at the

appellant's direction. This enhancement has routinely been applied

to counterfeits created through the use of legitimate devices, see,

e.g., United States v. Taylor, 991 F.2d 533, 535-36 (9th Cir. 1993)

(photocopy machine); United States v. Castillo, 928 F.2d 1106, 1108

(11th Cir. 1991) (counterfeit money detector); United States v.

Penson, 893 F.2d 996, 998 (8th Cir. 1989) (paper cutter), and we

have no difficulty in approving the district court's application of

it here.

As a last resort, the appellant seeks to find sanctuary

in the rule of lenity. The rule of lenity generally applies to

criminal statutes that are subject to more than one plausible

interpretation and demands that the interpretation more favorable

to the defendant prevail. See Jones v. United States, 529 U.S.

848, 858 (2000); United States v. Aponte-Guzmán, 696 F.3d 157, 160

(1st Cir. 2012). We have looked with favor on the application of

this rule to a sentencing guideline when "substantial ambiguity as

to the guideline's meaning persists even after a court looks to its

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text, structure, context, and purposes." United States v. Damon,

595 F.3d 395, 401 (1st Cir. 2010).

Here, however, the rule of lenity is purely a makeweight.

There is simply nothing ambiguous either about the meaning of the

guideline provision or about its applicability to the appellant's

conduct. The unvarnished text of the guideline, reinforced by the

commentary, leaves no doubt but that it reaches the conduct to

which the appellant pleaded guilty. It follows inexorably that the

rule of lenity has no bearing.

That ends this aspect of the matter. The two-level

enhancement under §2B5.1(b)(2)(A) is meant to reflect the increased

culpability of the producer of counterfeit obligations as compared

to the culpability of one who merely possesses or passes

counterfeit obligations. See United States v. Webb, 616 F.3d 605,

609 (6th Cir. 2010); USSG §2B5.1, comment. (backg'd). The

Sentencing Commission was obviously concerned about the planning

and degree of sophistication incident to the production of

counterfeit government obligations and, thus, understandably

treated production as an aggravating factor. See USSG §2B5.1,

comment. (backg'd). Seen in this light, the appellant's conduct

comes within the heartland of the enhancement. Consequently, we

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hold that the sentencing court did not err in applying the two-

level enhancement under §2B5.1(b)(2)(A).2

2. 18 U.S.C. § 3553(a). The appellant's second claim of

procedural error posits that the lower court did not give fair and

balanced consideration to the sentencing factors limned in 18

U.S.C. § 3553(a). Assaying this claim of error under a deferential

abuse-of-discretion standard, see United States v. Vargas, 560 F.3d

45, 51 (1st Cir. 2001), we find it meritless.

Once a sentencing court determines a defendant's GSR, it

is then required to consider the factors specified in 18 U.S.C.

§ 3553(a). See Vargas, 560 F.3d at 48. Withal, the court "is not

required to address those factors, one by one, in some sort of rote

incantation when explicating its sentencing decision." Dixon, 449

F.3d at 205. Nor is the court required to give every factor equal

weight. See id.

Reviewing the sentencing proceedings as a whole, we are

satisfied that the court appropriately considered the section

3553(a) factors. The court, referring to a number of those factors

and elaborating upon the appellant's background and criminal past,

determined that the twelve-month sentence recommended by the

2
We note that the application notes provide that this
enhancement applies only to the counterfeiting of "bearer
obligations of the United States." See USSG §2B5.1, comment.
(n.2). The record is opaque as to whether USPS money orders fit
this description. Since the appellant has raised no issue in this
regard, we express no view on it here.

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government pursuant to the plea agreements did not reflect the

gravity of the offenses of conviction, did not promote respect for

the law, did not serve the end of deterrence, and did not

adequately address the need for condign punishment. Bearing in

mind that a sentencing court need not explicitly address every

consideration that enters into its decisional calculus, see United

States v. Fernández-Hernández, 652 F.3d 56, 72 (1st Cir. 2011), we

are satisfied that the court below sufficiently weighed the section

3553(a) factors.

We have seen this movie before. Stripped of rhetorical

flourishes, the appellant's real complaint is not that the district

court overlooked or misapprehended relevant sentencing factors but,

rather, that the court gave more weight to factors that the

appellant regarded as unimportant and less weight to factors that

the appellant regarded as salient. Although defendants often

complain about this sort of picking and choosing, such selective

triage is precisely the function that a sentencing court is

expected to perform.

B. The Substantive Claim.

Finally, the appellant contends that his twenty-one month

sentence is substantively unreasonable. We review the substantive

reasonableness of a sentence for abuse of discretion. See United

States v. Gall, 552 U.S. 38, 46 (2007); United States v. King, 741

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F.3d 305, 307 (1st Cir. 2014). Applying that standard of review,

we reject the appellant's contention.

There will rarely, if ever, be a single "perfect"

sentence in any given case. Rather, there will be a range of

reasonable sentences for a particular subset of criminal activity.

See United States v. Santiago-Rivera, 744 F.3d 229, 234 (1st Cir.

2014). Within this range, district courts have wide discretion to

fashion specific sentences. See United States v. Gallardo-Ortiz,

666 F.3d 808, 811 (1st Cir. 2012).

In this case, the appellant's sentence is at the nadir of

a properly calculated GSR. Consequently, demonstrating that the

sentence is substantively unreasonable requires an especially steep

uphill climb. See United States v. Deppe, 509 F.3d 54, 62 (1st

Cir. 2007). As long as the sentence imposed is grounded in a

plausible view of the circumstances and its duration is defensible,

the defendant cannot scale the required heights. See United States

v. Carrasco-De-Jesús, 589 F.3d 22, 30 (1st Cir. 2009); United

States v. Martin, 520 F.3d 87, 96 (1st Cir. 2008).

Here, the district court articulated a plausible

rationale and arrived at a defensible result. The appellant's

conduct was serious: it included using stolen materials to

orchestrate the production of a large number of bogus money orders,

valued at more than $100,000. It also included recruiting

accomplices to cash the bogus money orders. The duration of the

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sentence — twenty-one months — is commensurate with the seriousness

of the offenses. Because the punishment comfortably fits the

crime, there is no principled way to call this sentence

substantively unreasonable. See Santiago-Rivera, 744 F.3d at 234.

In other words, there was no abuse of discretion.

III. CONCLUSION

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

we uphold the appellant's sentence.

Affirmed.

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