Not for Publication in West's Federal Reporter
United States Court of Appeals
For the First Circuit
No. 15-1190
UNITED STATES OF AMERICA,
Appellee,
v.
OSCAR FIGUEROA-QUIÑONES,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Francisco A. Besosa, U.S. District Judge]
Before
Howard, Chief Judge,
Torruella and Thompson, Circuit Judges.
Eric Alexander Vos, Federal Public Defender, District of
Puerto Rico, Vivianne M. Marrero, Assistant Federal Public
Defender, Supervisor, Appeals Section, and Liza L. Rosado-
Rodriguez, Research and Writing Specialist, on brief for
appellant.
Rosa Emilia Rodríguez-Vélez, United States Attorney, Nelson
Pérez-Sosa, Assistant United States Attorney, Chief, Appellate
Division, and Julia M. Meconiates, Assistant United States
Attorney, on brief for appellee.
October 31, 2016
THOMPSON, Circuit Judge. Defendant-Appellant Oscar
Figueroa-Quiñones ("Figueroa") challenges the 72-month sentence
imposed upon him on both procedural and substantive reasonableness
grounds.
The facts underlying this case are, for the most part,
uncontested.1 On February 21, 2014, Homeland Security received
information from a confidential informant regarding an illegal
marijuana growth laboratory inside a residence in Guaynabo, Puerto
Rico. After Homeland Security agents, accompanied by Puerto Rico
police officers, went to the residence and announced themselves,
they made a warrantless entry after hearing suspicious noises --
a toilet flushing and the unloading of a gun -- sounds they thought
to be the destruction of evidence. Agents immediately located and
detained Figueroa and two others. During a quick scan of the
premises, the officers observed a gun on top of a microwave, live
marijuana plants, and large quantities of loose marijuana.
After reading Figueroa his Miranda rights, officers
proceeded to interview him on site. At first he denied any
connection to the residence, but eventually admitted it was his
home. During the questioning, Figueroa initially gave the officers
1
This sentencing appeal follows a guilty plea, and we
therefore "glean the relevant facts from the change-of-plea
colloquy, the unchallenged portions of the presentence
investigation report (PSI Report), and the record of the
disposition hearing." United States v. Vargas, 560 F.3d 45, 47
(1st Cir. 2009).
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verbal consent to search his vehicle, leading to the discovery of
firearm magazines. Later, he consented to a search of the
residence,2 which resulted in the seizure of over 50 marijuana
plants; a large amount of unpackaged marijuana; drug growing and
packaging paraphernalia; and a variety of artillery, including an
unloaded AK-47 assault rifle, two AK-47 assault rifle magazines,
and a loaded Glock pistol.
After his arrest and after waiving his Miranda rights
for a second time, Figueroa confessed to Homeland Security agents
to being the owner of the munitions and the operator of the growth
laboratory. Then several days later, a federal grand jury sitting
in the District of Puerto Rico returned a two-count indictment,
charging Figueroa with possession with intent to distribute
controlled substances and possession of a firearm in furtherance
of a drug-trafficking crime.
On the heels of the indictment came Figueroa's motion to
dismiss and motion to suppress the evidence gathered during the
warrantless search. The district court denied the motion to
dismiss. As for the suppression motion, after conducting an
evidentiary hearing, a magistrate judge recommended that the
motion be granted. Following the government's objection to the
2 Officers explained that a warrant could be obtained for his
residence, but Figueroa stated (according to an agent) that "he
would rather get the search 'over with,' and he signed the consent
to search form."
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magistrate judge's report and recommendation, a de novo hearing
was scheduled before the district court; however, the merits were
never addressed because the parties reached a preliminary plea
agreement.
The agreement, which called for Figueroa to plead guilty
to possession of a firearm in furtherance of a drug-trafficking
crime, 18 U.S.C. § 924(c)(1)(a), proposed, inter alia, a sentence
of 60 months' imprisonment, the statutory minimum.
Subsequent to the plea entry, the probation department
prepared a presentence investigation report ("PSI report")
recommending the same sentence as the plea agreement. Thereafter,
Figueroa filed a sentencing memorandum highlighting his
cooperation with the government and characterizing his unlawful
activity as being the result of his mistakes. Letters from
Figueroa's family and friends, vouching for his character,
accompanied the memorandum.
On January 13, 2015, sentencing day, the court reviewed
the PSI report and acknowledged receipt of the sentencing
memorandum. At the court's invitation, Figueroa offered an
allocution, expressing repentance and remorse, and reiterating
some of the positive aspects of his sentencing memorandum. Counsel
for Figueroa and the government stood by the 60-month term prison
recommendation in the plea agreement.
When all had been heard from, the district court
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proceeded with its sentencing task. First, the court properly
calculated the applicable guideline sentencing range. Then, after
reviewing the PSI report -- and finding it satisfactory -- the
court went on to describe some of Figueroa's personal
characteristics: his age - 32; education - high school graduate;
employment history - unemployed on date of sentencing; and personal
drug use. It also acknowledged that Figueroa was a first-time
offender, notwithstanding a previously dismissed criminal case
against him, and expressly indicated it had considered the
sentencing factors set forth in 18 U.S.C. § 3553(a). The court
spoke of the firearms seized and the impressive volume of marijuana
grown and harvested by the defendant. The court then turned its
attention to the high firearms and violent crime rate in Puerto
Rico, and noted the importance of deterrence. Concluding that the
recommended 60-month sentence did not reflect the seriousness of
the offense, serve the end of deterrence, or promote respect of
the law, the court sentenced Figueroa to 72 months in prison and
5 years of supervised release.
Following the court's explication, counsel for Figueroa
objected to the heightened sentence and requested a
"reconsideration," arguing that the sentence was both procedurally
and substantively unreasonable. The court denied that request.
Figueroa now appeals, and, as below, he challenges both
the procedural and substantive reasonableness of his sentence.
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For the reasons set forth herein, we affirm.3
Our Review
Reviewing this challenged sentence requires a two-step
process. United States v. King, 741 F.3d 305, 307 (1st Cir. 2014)
(citing Gall v. United States, 552 U.S. 38, 51 (2007)). First, we
resolve claims of procedural error (e.g., failing to consider the
§ 3553(a) factors or failing to adequately explain the sentence)
before inquiring into whether the sentence is substantively
reasonable. Id. at 308; United States v. Morales-Machuca, 546
F.3d 13, 25 (1st Cir. 2008). We review preserved claims of
procedural and substantive unreasonableness for abuse of
discretion. United States v. Flores-Machicote, 706 F.3d 16, 20
(1st Cir. 2013); United States v. Medina-Villegas, 700 F.3d 580,
583 (1st Cir. 2012).
Procedural Reasonableness
Figueroa complains that the court did not correctly
assess the § 3553(a) factors: as he sees it, the court focused too
little on the positive aspects of his case (his first-time offender
status, the glowing character letters sent by family and friends,
3 Although the plea agreement included a waiver-of-appeal
provision, that provision took effect only if Figueroa was
sentenced in accordance with the agreement's "terms, conditions,
and recommendations." Because the court fashioned a sentence
different from that which was proposed, this waiver-of-appeal
provision does not prevent us from considering Figueroa's appeal.
See United States v. Fernández-Cabrera, 625 F.3d 48, 51 (1st Cir.
2010).
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and his cooperation with the government) and fixated too intensely
on the negative (the seriousness of the offense, the crime rate in
Puerto Rico, and deterrence and punishment considerations).4 Given
our standard of review, we cannot agree.
4 Section 3553(a) provides seven factors for a sentencing
court to consider:
The first factor is a broad command to consider "the
nature and circumstances of the offense and the history
and characteristics of the defendant." 18 U.S.C. §
3553(a)(1). The second factor requires the consideration
of the general purposes of sentencing, including:
"the need for the sentence imposed—
"(A) to reflect the seriousness of the
offense, to promote respect for the law, and
to provide just punishment for the offense;
"(B) to afford adequate deterrence to criminal
conduct;
"(C) to protect the public from further crimes
of the defendant; and
"(D) to provide the defendant with needed
educational or vocational training, medical
care, or other correctional treatment in the
most effective manner.”
§ 3553(a)(2).
The third factor pertains to "the kinds of sentences
available," § 3553(a)(3); the fourth to the Sentencing
Guidelines; the fifth to any relevant policy statement
issued by the Sentencing Commission; the sixth to "the
need to avoid unwarranted sentence disparities," §
3553(a)(6); and the seventh to "the need to provide
restitution to any victims," § 3553(a)(7). Preceding
this list is a general directive to "impose a sentence
sufficient, but not greater than necessary, to comply
with the purposes" of sentencing described in the second
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As for the positives, the court explicitly stated that
it had considered all of the § 3553(a) factors. Such a
declaration, as we have repeatedly said, "is entitled to
significant weight," see United States v. Santiago–Rivera, 744
F.3d 229, 233 (1st Cir. 2014) (citing United States v. Dávila–
González, 595 F.3d 42, 49 (1st Cir. 2010)), and the record offers
us no reason to doubt the court. Indeed, the court talked about
the positives such as Figueroa's first-time offender status and
his cooperation with the government. Moreover, the court went on
to make clear that it had reviewed the sentencing memorandum, which
described Figueroa's commendable character attributes, and had
reviewed as well the many letters of support submitted on his
behalf.
As for the negatives cited by the court, our caselaw
makes clear that community-based elements and the need for
deterrence are "widely recognized" as important ingredients in the
sentencing calculus. Flores-Machicote, 706 F.3d at 23. And while
we have cautioned that a sentencing court must not focus "too much
on the community and too little on the individual" when it doles
factor. § 3553(a) (2000 ed., Supp. V). The fact that §
3553(a) explicitly directs sentencing courts to consider
the Guidelines supports the premise that district courts
must begin their analysis with the Guidelines and remain
cognizant of them throughout the sentencing process.
Gall v. United States, 552 U.S. 38, 50 n.6 (2007).
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out a sentence, United States v. Rivera-González, 776 F.3d 45, 50
(1st Cir. 2015) (citations omitted), we cannot say that such an
improper balancing occurred in this case. The court's examination
of the particulars of Figueroa's case, and its reflections upon
the crime rate and gun violence statistics in Puerto Rico, were
part and parcel of a wholesale review of the circumstances of this
case. Deterrence -- a legitimate sentencing goal, see id. at 50-
51 (citing 18 U.S.C. § 3553(a)(2)(B); Flores–Machicote, 706 F.3d
at 23) -- and community-based concerns are proper factors in the
court's sentencing calculus, and there is no indication that
excessive weight was given to either.
Seeking a way around this predicament, Figueroa points
out that this crime-rate rationale has no limitations: "If Puerto
Rico is plagued by high crime rates at the time a defendant is
sentenced, that is reason enough to justify the need for increased
punishment and deterrence" -- but, conversely, "if crime rate is
down, then the court claims that the 'firearms initiative' is
working and thus, tougher sentences are required to ensure it
continues to diminish." Figueroa concludes that this argument
leaves defendants "doomed in a merciless cycle." This point, while
potentially concerning in the abstract, does not trouble us in
this case. Figueroa has "waived the argument" by not raising it
in his principal brief. United States v. Jones, 748 F.3d 64, 73
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(1st Cir. 2014) (citation omitted).5 And in any event, as we
discuss below, the district court's sentencing determination was
not erroneous.
Overall, what we have here then, is an appellant whose
"real complaint is not that the court failed to consider the
section 3553(a) factors, but that the court did not assign the
weight to certain factors that the [appellant] thought
appropriate." See United States v. Ruiz-Huertas, 792 F.3d 223,
227 (1st Cir.), cert. denied, 136 S. Ct. 258 (2015); see also
United States v. Clogston, 662 F.3d 588, 593 (1st Cir. 2011)
(explaining that "the weighting of [sentencing] factors is largely
within the court's informed discretion"). Here, the court
correctly looked at everything presented to it, considered all
appropriate sentencing factors, and, in the end and in its
substantial discretion, weighed its analysis contrary to
Figueroa's preferences.
Moving on to the court's sentencing explanation, it,
too, we deem sufficient. The court's thorough inspection of the
5 Figueroa also seemingly suggests that the court should have
taken alleged police misconduct -- warrantless entry and
destruction of evidence -- into account in imposing the sentence.
And, the argument continues (at least implicitly), had the court
done so, he would have gotten a lighter sentence. But Figueroa
did not raise the claim at sentencing, nor does he develop it here,
so it is waived. See United States v. Zannino, 895 F.2d 1, 17 (1st
Cir. 1990) (deeming waived "issues adverted to in a perfunctory
manner, unaccompanied by some effort at developed argumentation").
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case led it to conclude and to parse why the 60-month proposed
sentence did not suitably account for the seriousness of the crime,
nor sufficiently reflect the imperative notions of just punishment
and deterrence. To us, the rationale and explanation offered by
the district court are clear, and to the extent any ambiguity can
be found, whatever gap there may be in the court's reasoning is
filled by "comparing what was argued by the parties or contained
in the [PSR] with what the judge did.”6 United States v. Ocasio–
Cancel, 727 F.3d 85, 91 (1st Cir. 2013) (quoting United States v.
Jiménez–Beltre, 440 F.3d 514, 519 (1st Cir. 2006) (en banc)).
The bottom line is that we see no procedural error in
what the court did.
Substantive Reasonableness
That leaves Figueroa's substantive-reasonableness claim
-- that the court failed to adequately consider the arguments
advanced in favor of the recommended sentence and neglected to
perform an individualized assessment, instead focusing on the
firearms initiative and local murder rate. "There is rarely, if
ever, a single correct sentence in any specific case." Santiago–
Rivera, 744 F.3d at 234. So, we ask "whether the sentence, in
light of the totality of the circumstances, resides within the
6 Although the parties also squabble about the district
court's post-sentencing Statement of Reasons, we do not need to
weigh in on that document's contents because we determined the
explanation given at the sentencing hearing was adequate.
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expansive universe of reasonable sentences." King, 741 F.3d at
308. A sentence will survive a challenge to its substantive
reasonableness as long as it rests on a "plausible sentencing
rationale" and reflects a "defensible result." United States v.
Martin, 520 F.3d 87, 96 (1st Cir. 2008). "A challenge directed at
substantive reasonableness is usually a heavy lift, and reversal
is 'particularly unlikely when . . . the sentence imposed fits
within the compass of a properly calculated [guideline sentencing
range].'" Ruiz–Huertas, 792 F.3d at 228–29 (quoting United States
v. Vega–Salgado, 769 F.3d 100, 105 (1st Cir. 2014) (omission and
alteration in original)).
The statute in play here clearly provides that anyone
who possesses a firearm in furtherance of a drug-trafficking crime
"shall, in addition to the punishment provided for such . . . drug
trafficking crime . . . be sentenced to a term of imprisonment of
not less than 5 years."7 18 U.S.C. § 924(c)(1)(A)(i). The 72-
month sentence imposed by the court -- 12 months in excess of the
recommendation -- is defensible: given the court's focus on the
7 We recently explained that the statutory mandatory minimum
sentence applicable in this case (60 months) is the guideline
sentence. See United States v. Bermúdez-Meléndez, 827 F.3d 160,
164 (1st Cir. 2016). When, as now, "application of the sentencing
guidelines yields a singular guideline sentence rather than a
guideline sentencing range . . . a sentence in excess of the
guideline sentence should be treated as an upward variance." Id.
This matters "because an upwardly variant sentence usually
requires a fuller explanation than a guideline sentence." Id.
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large quantity of drugs involved, Figueroa's role in leasing an
apartment to renovate into a grow lab, and the guns and ammunition
seized, the chosen sentence inescapably "resides within the
expansive universe of reasonable sentences." King, 741 F.3d at
308. That the sentence exceeded the recommendation by 12 months
does not render it -- by that fact alone -- substantively
unreasonable. See, e.g., Flores-Machicote, 706 F.3d at 25; United
States v. Vargas, 560 F.3d 45, 51 (1st Cir. 2009). Instead, a
court's rationale must be "plausible" and the sentence must fall
"within the expansive universe" of acceptable outcomes. King, 741
F.3d at 308 (citation omitted). Here, the court's sentence passes
that test.
In sum, the court offered sufficiently persuasive
explanations to justify the sentence imposed. Figueroa's conduct
was serious, and the deterrence and societal-protective needs are
great. We cannot say that the district court's sentencing decision
was outside the "expansive universe" of defensible results, and so
the sentence stands. See id.
Conclusion
Our review ends here. For the reasons elucidated above,
the sentence is
Affirmed.
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