Not for Publication in West's Federal Reporter
United States Court of Appeals
For the First Circuit
No. 14-2073
UNITED STATES,
Appellee,
v.
ANTONIO RAMOS-ACEVEDO,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Daniel R. Domínguez, U.S. District Judge]
Before
Howard, Chief Judge,
Thompson and Barron, Circuit Judges.
Peter J. Cyr and Law Offices of Peter J. Cyr on brief for
appellant.
Susan Jorgensen, 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.
June 14, 2016
Per curiam. Antonio Ramos-Acevedo ("Ramos") pled guilty
to possession of a firearm by a convicted felon. See 18 U.S.C.
§ 922(g)(1). He appeals his 71-month prison sentence as
substantively unreasonable. The government makes a good argument
that Ramos waived appellate review of his sentence by his
litigation conduct. In any event, the imposed sentence was
reasonable. Accordingly, we affirm.
Although Ramos and the government bargained for a
potentially lower sentence, at his sentencing hearing Ramos
repeatedly agreed to the sentence that the judge ultimately
imposed. Ordinarily, "[a] party waives a right when he
intentionally relinquishes or abandons it." United States v.
Sánchez-Berríos, 424 F.3d 65, 74 (1st Cir. 2005) (internal
quotation marks and citation omitted). A party may waive a right
by affirmatively agreeing with a judge's proposed course of action.
See United States v. DeLeon, 704 F.3d 189, 193 (1st Cir. 2013);
United States v. Sweeney, 606 F. App'x 588, 591 (1st Cir. 2015)
(unpublished).
At sentencing, the district court contemplated applying
a four-level sentencing enhancement, based on the circumstance
that the firearm possessed by Ramos had an obliterated serial
number. See U.S.S.G. § 2K2.1(b)(4). That enhancement would have
raised Ramos's offense level to 25, and his guidelines sentencing
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range to 70-87 months. However, after considering defense
counsel's allocution about the possession (counsel asserted that
Ramos had found the weapon on a beach, in a rusty condition,
suggesting that the serial number had been obliterated
previously), as well as mitigating factors relating to Ramos's
background and health, the court applied only a two-level
enhancement. This resulted in an offense level of 23 and a
sentencing range of 57-71 months. The court imposed a sentence of
71 months.
The judge explained how he had arrived at the sentence,
and Ramos's counsel thanked the court repeatedly for its
"generosity" and acknowledged that the court acted "within [its]
discretion." The judge also expressly asked Ramos whether the 71-
month sentence was acceptable to him, specifically noting that he
was imposing a sentence at the high end of the guidelines range,
to which Ramos replied "yes." Having repeatedly assented to the
sentence before the district judge, Ramos is hard-pressed to now
reverse course and claim that the sentence is unreasonable.
Even reviewing for substantive reasonableness under an
abuse of discretion standard, see United States v. Ruiz-Huertas,
792 F.3d 223, 228 (1st Cir.), cert. denied, 136 S. Ct. 258 (2015),
we uphold the sentence. "Challenging the substantive
reasonableness of a sentence is a formidable task, made more
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burdensome where, as here, the challenged sentence is within a
properly calculated GSR." United States v. Perretta, 804 F.3d 53,
58 (1st Cir. 2015). To prevail, "a defendant must adduce fairly
powerful mitigating reasons and persuade us that the district court
was unreasonable in balancing the pros and cons." Id. (internal
quotation marks omitted). We give substantial deference to the
sentencing court's exercise of discretion, and will uphold a
sentence so long as the district court's rationale is plausible
and its result is defensible. See id. at 57-58.
Given the severity of the offense and Ramos's
significant criminal history -- including two prior convictions
for aggravated assault and a conviction for possessing a bladed
weapon -- the district court acted within its discretion. Ramos
contends that the court failed to adequately weigh mitigating
factors relating to the firearm, his background and health, and
his acceptance of responsibility. Not so. As noted above, due to
the mitigating factors relating to the firearm possession and
Ramos's background and health, the court applied only a two-level,
rather than the usual four-level, enhancement for the obliterated
serial number. It also applied a three-level reduction for Ramos's
acceptance of responsibility.
Ramos further contends that the sentence was
unreasonable because it exceeded what the government had
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recommended. As Ramos was informed in his plea agreement, however,
the district court "was not bound by the jointly recommended
sentence." United States v. Reverol-Rivera, 778 F.3d 363, 367
(1st Cir. 2015).
In sum, the district court's rationale was plausible and
its result falls well within the "universe of reasonable
sentences." Perretta, 804 F.3d at 58. Ramos has not offered
"fairly powerful mitigating reasons" that convince us to the
contrary. Id. Accordingly, the sentence is AFFIRMED.
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