Not for Publication in West's Federal Reporter
United States Court of Appeals
For the First Circuit
No. 15-2549
UNITED STATES OF AMERICA,
Appellee,
v.
JOSE M. LASANTA-SANCHEZ,
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,
Lipez and Thompson, Circuit Judges.
Johnny Rivera-Gonzalez on brief for appellant.
Rosa Emilia Rodríguez-Vélez, United States Attorney, Mariana
E. Bauzá-Almonte, Assistant United States Attorney, Chief,
Appellate Division, and Francisco A. Besosa-Martínez, Assistant
United States Attorney, on brief for appellee.
March 20, 2017
THOMPSON, Circuit Judge. The defendant, Jose M.
Lasanta-Sanchez (Lasanta), raises two issues in this appeal from
the sentence imposed by the district court for Lasanta's violation
of his supervised-release conditions. Because Lasanta waived one
claim and the other is meritless, we affirm.
HOW THE CASE GOT HERE
In 2010, Lasanta pled guilty to possession of a
machinegun and was sentenced to imprisonment for twenty-one
months, with a three-year supervised release term to follow. Just
over six months after his release, Lasanta was up to his old
tricks. The United States Probation Office (Probation Office)
searched Lasanta's home and vehicle and uncovered yet another
machinegun and ammunition.
Lasanta's latest transgression had serious consequences.
First, in a separate criminal case, Case No. 14-063, he pled guilty
to possession of a firearm by a felon and was sentenced to fifty-
one months in prison. Second, in this case, the Probation Office
notified the district court that Lasanta had violated his
supervised-release conditions. Lasanta admitted the violation.
During the sentencing hearing, defense counsel stated
that, "given that it's the same offense conduct, that [i.e., the
sentence for the violation] certainly cannot be concurrent" with
the sentence imposed in Case No. 14-063. Lasanta instead requested
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a sentence at the low end of the guidelines range, which was
fifteen to twenty-one months.
During defense counsel's sentencing argument, the
district court inquired, "How far is [Lasanta] from being a career
offender?" After the prosecutor informed the court that Lasanta's
possession of a "machine gun is considered a crime of violence,"
the following exchange occurred:
THE COURT: He's one strike away from being a career
offender.
[Prosecutor]: Yeah.
[Defense counsel]: Or an armed career criminal.
THE COURT: Or an armed career criminal.
The district court then gave Lasanta this warning:
I want to look at him and tell him that the next one he
could be looking at a minimum of 20 years. Your family
is here. So I'm advising you that the next weapon could
be fatal. You could be looking at 20 years. So your
family understands, (speaking Spanish.) The next
offense could be a potential minimum of 20 years. So
don't think that you're going 21 to whatever it is here.
[Defense counsel]: The revocation is 15 to 21, Judge.
THE COURT: The revocation says 15 to 21. But under the
guidelines I can go 24. But here's the issue. The issue
is not this sentence, it's the next one with a weapon.
Do you understand? (Emphasis added.)
Once more during defense counsel's argument, the
district court interjected: "He has the key to open 20 years
again. He's 20 years." Defense counsel responded, "Yeah, I know,"
and then continued with his argument.
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After hearing the parties' arguments, the district court
explained its justifications for the chosen sentence. The court
stated that it had considered the advisory guidelines, calculated
the applicable guidelines range, and considered the 18 U.S.C.
§ 3553(a) factors. The court noted "the fact that [Lasanta] has
the same proclivity and pattern of criminal behavior," and then
stated:
The court is particularly impressed with the same type
of offense. Barely having . . . terminated his sentence,
he is again at the incentive and for the reasons that
the probation officer determined was reasonable to
search his house, he was again found with weapons and
extensive ammunition and magazines.
In the course of explaining its chosen sentence, the
district court did not reference its earlier warning to Lasanta
about potential sentencing consequences in the event that he
continued down his criminal path. Ultimately, it sentenced Lasanta
to imprisonment for twenty-four months, to be served consecutively
to the sentence imposed in Case No. 14-063. After imposing
sentence, the court informed Lasanta of his right to appeal and to
have a transcript prepared. The court then explained to defense
counsel that, although he was likely
disappointed as to the sentence, . . . I think that if
I provide him less I don't think I'm doing my job
properly. He, at this time, deserves the sentence that
the [c]ourt has imposed based on the circumstances of a
repeated offense barely having left the prison house.
And it's the same type of offense as before. So we have
to increase the ante. We cannot go guideline. (Emphasis
added.)
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The district court then reminded Lasanta of its earlier
warning:
So, I want to remind him again that this sentence is
relatively short compared to the next potential
sentence. So watch out. The next potential sentence
may be up -- may be 240 months.
[Defense counsel]: Yes, sir.
THE COURT: So I wish him luck. I really do. I wish
him luck. I hope that he comes back with a change of
attitude and the attitude must be an attitude of respect
for the law. If not, he's going to find another judge
with his hands tied.
So, good luck, sir.
Lasanta timely appealed.
ANALYSIS
Lasanta argues that the district court committed
reversible error in two respects: First, he contends that the
district court failed to recognize that it retained the discretion
to order that the sentence imposed in this case run concurrently
with (instead of consecutively to) the sentence imposed in Case
No. 14-063. Second, he insists that the district court sentenced
him "under the mistaken legal impression that his prior conviction
for mere possession of a machine gun constituted a crime of
violence." The government counters that Lasanta waived both of
these claims. So we start there.
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Waiver
The manner in which we review a claim of sentencing error
hinges on whether the defendant preserved the issue below. In
broad strokes, we review preserved claims under an abuse-of-
discretion rubric, while forfeited claims must survive plain-error
review. United States v. Arsenault, 833 F.3d 24, 28 (1st Cir.
2016).1 Issues can typically be characterized as either preserved
or forfeited, but that is not always true.
Unlike a mere failure to object, which results in
forfeiture of the argument, a litigant waives a claim when he or
she "'intentionally relinquishes or abandons' a known right."
United States v. Walker, 538 F.3d 21, 23 (1st Cir. 2008) (quoting
United States v. Rodriguez, 311 F.3d 435, 437 (1st Cir. 2002));
see also United States v. Torres-Rosario, 658 F.3d 110, 115-16
(1st Cir. 2011). The distinction between waiver and forfeiture is
1 This generalization is not wrinkle free: "[T]he applicable
standard of review for an unpreserved, substantive reasonableness
challenge is 'murky.'" Arsenault, 833 F.3d at 29 (quoting United
States v. Pérez, 819 F.3d 541, 547 (1st Cir. 2016)); see also
United States v. Ruiz-Huertas, 792 F.3d 223, 228 (1st Cir. 2015)
(noting that it is unclear whether an unpreserved substantive
reasonableness claim should be reviewed for abuse of discretion or
plain error). We need not dwell on this murkiness, however,
because Lasanta does not advance a substantive unreasonableness
challenge to his sentence. Although Lasanta asserts in conclusory
fashion that the two errors of which he complains render his
sentence both procedurally and substantively unreasonable, he
makes no attempt to develop a substantive unreasonableness
argument. Any such argument, therefore, is not properly before
us. See United States v. Zannino, 895 F.2d 1, 17 (1st Cir. 1990).
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critical: although a forfeited claim will be reviewed for plain
error, "a waived issue ordinarily cannot be resurrected on appeal."
Walker, 538 F.3d at 23 (quoting Rodriguez, 311 F.3d at 437).
In this case, we agree with the government that Lasanta
has waived his argument that the district court erred in failing
to recognize its authority to order the sentence in this case to
run concurrently with the sentence imposed in Case No. 14-063. At
the sentencing hearing, defense counsel conceded that the sentence
in this case "certainly cannot be concurrent" with the sentence
imposed in Case No. 14-063. This "explicit and specific
concession" constitutes waiver, Torres-Rosario, 658 F.3d at 116,
and "a party cannot concede an issue in the district court and
later, on appeal, attempt to repudiate that concession and
resurrect the issue," United States v. Gates, 709 F.3d 58, 63 (1st
Cir. 2013). See also, e.g., United States v. Ocasio-Cancel, 727
F.3d 85, 90 (1st Cir. 2013) (concluding that defendant waived
argument that district court should have imposed concurrent rather
than consecutive sentence where, "in response to the court's
statement at the disposition hearing that it did not intend to
impose a concurrent sentence, defense counsel repeatedly declared,
'I'm not asking for that'").2 Thus, we say no more about Lasanta's
first claim of sentencing error.
2 We recognize that we can, "as a matter solely of [our]
discretion," forgive waiver in "the rare case." United States v.
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With respect to Lasanta's other appellate contention,
the government claims that, because "defense [counsel] acquiesced
in the district court's characterization of [Lasanta's] two
federal convictions as crimes of violence," Lasanta waived that
argument as well. Unlike the explicit concession on the
consecutive-sentence issue, defense counsel never conceded that
machinegun possession constitutes a crime of violence.
Accordingly, the case for waiver is less clear. Ultimately, we
need not decide this issue because Lasanta's claim fails under the
plain error standard of review. See United States v. Delgado-
Sánchez, No. 15-2262, 2017 WL 655761, at *4 (1st Cir. Feb. 17,
2017) ("[W]here a defendant's claim would fail even if reviewed
for plain error, we have often declined to decide whether the
defendant's failure to raise the issue below constituted waiver or
mere forfeiture." (quoting United States v. Acevedo–Sueros, 826
F.3d 21, 24 (1st Cir. 2016))).
Future Sentencing Consequences
Lasanta concedes that, because he failed to preserve his
second sentencing challenge, we must review for plain error.
"[T]his stiff standard" imposes a burden on Lasanta to "establish
'(1) that an error occurred (2) which was clear or obvious and
Walker, 665 F.3d 212, 227 (1st Cir. 2011); see also Torres-Rosario,
658 F.3d at 116 ("[C]ourts may excuse waivers and disregard
stipulations where justice so requires."). This is not such a
case.
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which not only (3) affected [his] substantial rights, but also (4)
seriously impaired the fairness, integrity, or public reputation
of judicial proceedings.'" Arsenault, 833 F.3d at 28-29 (quoting
Ruiz-Huertas, 792 F.3d at 226). Lasanta's contention falls flat
right out of the gate.
Lasanta's claim that the district court sentenced him
based, at least in part, on "the mistaken legal impression that
his prior conviction for mere possession of a machine gun
constituted a crime of violence" is belied by the record. It is
crystal clear from the sentencing transcript that the district
court's references to the future sentencing consequences that
Lasanta might face if he didn't break his habit of possessing
machineguns was nothing more than a warning to Lasanta — in the
presence of his family — to change his ways. This warning played
no role whatsoever in the sentence the district court imposed.
Indeed, the district court clearly identified the reason for
imposing the twenty-four month sentence: hot on the heels of his
release from prison following possession of a machinegun, Lasanta
committed the same offense. In these circumstances, Lasanta's
reliance on United States v. Rodríguez-Meléndez, 828 F.3d 35 (1st
Cir. 2016), is misplaced. See id. at 38-39 (finding plain error
where district court "relied upon a fact that was demonstrably
false" and that false fact "was a salient one in its [sentencing]
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analysis"). Therefore, because the complained-of sentencing error
simply did not occur, we must reject Lasanta's argument.
THE END
For these reasons, we affirm the judgment below.
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