United States v. Roman-Diaz

United States Court of Appeals
For the First Circuit

No. 15-2355

UNITED STATES OF AMERICA,

Appellee,

v.

ELVIN ROMÁN-DÍAZ,

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO

[Hon. Aida M. Delgado-Colón, U.S. District Judge]

Before

Lynch, Selya and Kayatta,
Circuit Judges.

Barry S. Pollack and Pollack Solomon Duffy LLP on brief for
appellant.
Rosa Emilia Rodríguez-Vélez, United States Attorney, Mariana
E. Bauzá Almonte, Assistant United States Attorney, Chief,
Appellate Division, and Thomas F. Klumper, Assistant United States
Attorney, Senior Appellate Counsel, on brief for appellee.

April 7, 2017
 SELYA, Circuit Judge. Defendant-appellant Elvin Román-

Díaz asserts that the sentencing court erred in "departing" from

one criminal history category (CHC) to another without notice or

an opportunity to be heard. He further asserts that the sentencing

court erred in ordering his federal sentence to run consecutive to

an undischarged state sentence. Finding no departure and no abuse

of discretion in the imposition of the challenged consecutive

sentence, we affirm.

I. BACKGROUND

A summary of pertinent events suffices to lend

perspective. We draw the facts from the plea agreement (the

Agreement), the change-of-plea colloquy, the undisputed portions

of the presentence investigation report (PSI Report), and the

sentencing transcript. See United States v. Dávila-González, 595

F.3d 42, 45 (1st Cir. 2010); United States v. Dietz, 950 F.2d 50,

51 (1st Cir. 1991).

During 2012, the appellant and others engaged in a

conspiracy to distribute controlled substances in and around

Ponce, Puerto Rico. The appellant functioned as an enforcer for

the drug ring and also stored drugs and weapons for it. While the

conspiracy was velivolant, a high-school student (Juan Ruiz-Vega)

was shot and killed with a rifle owned by a member of the drug

ring.

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 On July 24, 2013, a federal grand jury sitting in the

District of Puerto Rico handed up a two-count indictment charging

the appellant with conspiring to possess with intent to distribute

in excess of 280 grams of cocaine base (crack cocaine) and

detectable amounts of cocaine, heroin, and marijuana, in violation

of 21 U.S.C. §§ 841(a)(1) and 846 (count one), and aiding and

abetting in the possession of a firearm in furtherance of a drug-

trafficking crime, in violation of 18 U.S.C. § 924(c) (count two).

After some skirmishing, not relevant here, the appellant pled

guilty to both counts pursuant to the Agreement.

In the Agreement, the appellant stipulated to handling,

as part of the conspiracy, at least 112 grams but less than 196

grams of crack cocaine. The parties agreed that this drug weight

corresponded to a base offense level of twenty-eight for count

one, see USSG §2D1.1, and that a three-level credit for acceptance

of responsibility was warranted, see id. §3E1.1. The parties

further agreed to recommend a sixty-month sentence on count one

and a consecutive sixty-month mandatory minimum sentence on count

two. Finally, the parties agreed to recommend that the aggregate

federal sentence be served concurrently with an undischarged

1,000-year state sentence previously imposed for convictions

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related to the Ruiz-Vega murder (which the parties considered to

be relevant conduct, see id. §1B1.3(a)).1

The Agreement contained no stipulation as to either the

appellant's CHC or his anticipated guideline sentencing range

(GSR). The Agreement's offense level and sentencing

recommendations, though, offer some indication that the parties

held out the hope that the appellant would be placed in CHC I.

After accepting the appellant's plea, the district court

ordered the probation office to prepare the PSI Report. When

received, the report recommended that the court apply the murder

cross-reference, see id. §2D1.1(d)(1), on the ground that the Ruiz-

Vega murder took place in the course of the conspiracy. Accepting

this recommendation had the effect of increasing the appellant's

adjusted offense level from twenty-five to forty. See id. §2A1.1.

Combined with a recommended CHC of III,2 this recasting yielded a

GSR of 360-480 months for count one. See id. §5G1.1(a).

1 Although Puerto Rico is not a state, sentences imposed by
the Puerto Rico courts — like the sentence imposed with respect to
the Ruiz-Vega convictions — have the same force and effect for
federal sentencing purposes as sentences imposed by state courts.
See, e.g., United States v. Carrasco-de-Jesús, 589 F.3d 22, 24, 27
(1st Cir. 2009) (treating an undischarged Puerto Rico sentence as
a state sentence for purposes of evaluating propriety of
consecutive sentence). For ease in exposition, we employ a
conventional shorthand and refer to the Ruiz-Vega sentence as a
state sentence.

2 In recommending that the appellant be placed in CHC III,
the PSI Report did not attribute any criminal history points for
convictions related to the Ruiz-Vega murder. This exclusion was

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 With respect to count two, the PSI Report was

straightforward. It recommended — as had the parties — the

statutory minimum term of sixty months' imprisonment. See 18

U.S.C. § 924(c)(1)(A)(i); USSG §2K2.4(b); see also United States

v. Rivera-González, 776 F.3d 45, 49 (1st Cir. 2015) (explaining

that the statutory minimum sentence is, in such circumstances, the

guideline sentence).

The district court convened the disposition hearing on

September 24, 2015. The appellant beseeched the court to follow

the sentencing framework laid out in the Agreement and sentence

him to two consecutive sixty-month incarcerative terms (a total of

120 months' imprisonment), to run concurrently with his state

sentence for the convictions related to the Ruiz-Vega murder. The

prosecutor concurred.

The district court determined that the Ruiz-Vega murder

did not comprise relevant conduct and, thus, refused to apply the

murder cross-reference. The court then determined, based on the

parties' stipulation as to drug weight, that the base offense level

was twenty-six. See USSG §2D1.1(c)(7).3 The court noted, though,

consistent with the PSI Report's conclusion that the Ruiz-Vega
murder occurred in the course of the conspiracy and, thus,
constituted relevant conduct. See United States v. Correy, 570
F.3d 373, 390-91 (1st Cir. 2009).

3 The district court appropriately treated the 2014 edition
of the sentencing guidelines as controlling. See United States v.
Carrasco-Mateo, 389 F.3d 239, 242 n.1 (1st Cir. 2004) (explaining

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that this stipulated drug weight underrepresented the appellant's

actual complicity. After crediting the appellant for acceptance

of responsibility, the court set his total offense level at twenty-

three.

Turning to the other side of the grid, the court

determined that the appellant should be placed in CHC IV (a

determination that added criminal history points for the state

convictions related to the Ruiz-Vega murder because that murder

was not deemed relevant conduct). The appellant initially objected

to this recasting of the murder cross-reference, but retracted his

objection once the court explained that, despite the higher CHC,

the elimination of the murder cross-reference would result in a

substantially lower GSR (seventy to eighty-seven months).4

The court proceeded to sentence the appellant to a top-

of-the-range incarcerative term on count one (eighty-seven months)

and the mandatory minimum incarcerative term (sixty months) on

that a sentencing court must apply "the guidelines in effect at
the time of sentencing unless doing so would present ex post facto
problems"); see also USSG §1B1.11(a). The parties, however, appear
to have used either the 2012 or 2013 edition when drafting the
Agreement. This explains the apparent discrepancy in the base
offense level corresponding to the stipulated drug weight. Such
a discrepancy is inconsequential for present purposes.
4 The recasting, though, had a potentially adverse effect: it
meant that the question of whether the aggregate federal sentence
would run concurrently or consecutively to the undischarged state
sentence was shifted from the guidance of USSG §5G1.3(b) to USSG
§5G1.3(d). We discuss the concurrent/consecutive question infra.

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count two. As provided by statute, see 18 U.S.C.

§ 924(c)(1)(D)(ii), the sentence imposed on count two was ordered

to run consecutively to the sentence imposed on count one. The

court also ordered both sentences to run consecutively to the

undischarged state sentence.

This timely appeal followed.

II. ANALYSIS

In United States v. Booker, 543 U.S. 220 (2005), the

Supreme Court effected a sea change in the law of federal

sentencing, declaring the sentencing guidelines advisory and

directing appellate courts to review sentences for reasonableness.

See id. at 245, 260-61. The Court subsequently clarified that, in

this context, review for reasonableness is functionally equivalent

to review for abuse of discretion. See Gall v. United States, 552

U.S. 38, 51 (2007). That review entails a two-step process: an

inquiring court first should resolve any claims of procedural error

and then should address any challenges to the substantive

reasonableness of the sentence imposed. See id.; United States v.

Martin, 520 F.3d 87, 92 (1st Cir. 2008).

Of course, these standards of review may be altered when

a party has failed to preserve particular claims of error in the

court below. In such an event, review is for plain error. See

United States v. Ruiz-Huertas, 792 F.3d 223, 226 (1st Cir.), cert.

denied, 136 S. Ct. 258 (2015). To prevail under this rigorous

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standard, an appellant must establish "(1) that an error occurred

(2) which was clear or obvious and which not only (3) affected

[his] substantial rights, but also (4) seriously impaired the

fairness, integrity, or public reputation of judicial

proceedings." United States v. Duarte, 246 F.3d 56, 60 (1st Cir.

2001).

A.

The appellant's first line of attack deals with the

district court's choice of a CHC. In his view, the court erred by

"departing" from a CHC of III to a CHC of IV without either notice

or an opportunity for him to be heard, thus violating Federal Rule

of Criminal Procedure 32(h).5 Since this claim was not aired

below, review is for plain error.

The premise of the appellant's argument is

unimpeachable: under Rule 32(h), a defendant is entitled to notice

prior to any departure on a ground not identified for departure in

the PSI Report or the parties' presentencing submissions. But the

5 We recently have explained that Rule 32(h) is "a vestige of
the time before [Booker], an era when the guidelines were
mandatory." United States v. Santini-Santiago, 846 F.3d 487, 489-
90 (1st Cir. 2017). Under an advisory guideline regime, a
sentencing court has considerable flexibility to vary a sentence,
up or down, from the guideline range. See id. at 490. Unless the
court specifically states that it is departing, even a sentence
outside the GSR is almost always treated as a variance, not a
departure. See id. There is no general notice requirement for
variances. See Irizarry v. United States, 553 U.S. 708, 714
(2008).

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appellant's attempt to apply that premise here is mistaken. We

explain briefly.

The appellant asserts that the district court's decision

to place him in a higher CHC constituted a departure. This

assertion is simply wrong. In federal criminal sentencing, the

term "departure" is a term of art. It refers specifically to a

decision made by a sentencing court, after constructing the

applicable guideline range, to impose a sentence above or below

that range on one of certain enumerated grounds. See, e.g., United

States v. Wallace, 573 F.3d 82, 96 (1st Cir. 2009); United States

v. Sanchez, 354 F.3d 70, 78-79 (1st Cir. 2004). Part 5K of the

sentencing guidelines collects those enumerated grounds. They

include, for example, situations in which the offense conduct led

to death, USSG §5K2.1; situations in which the offense conduct led

to significant physical injury, id. §5K2.2; and situations in which

the offense conduct involved extreme psychological injury, id.

§5K2.3.

Here, however, there was no departure. The guideline

range itself is a product of two subsidiary determinations. The

sentencing court must determine the offender's total offense level

and his CHC. See United States v. Parkinson, 44 F.3d 6, 9 (1st

Cir. 1994). The decision about which the appellant complains —

the determination that CHC IV applied — was integral to that

process and was made as a part of it. As such, it was not a

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departure and was not subject to the notice requirements of

Rule 32(h). See Irizarry v. United States, 553 U.S. 708, 714

(2008).

In all events, the appellant's claim that the court made

the CHC determination without giving him adequate notice is

specious. He and his counsel knew all along of the convictions

related to the Ruiz-Vega murder and knew that those convictions

would be factored into the calculation of his GSR. That he did

not anticipate the exact manner in which the court would elect to

use those convictions does not mean that he was deprived of notice

in any meaningful sense. Cf. United States v. Vega-Santiago, 519

F.3d 1, 5 (1st Cir. 2008) (explaining that "[g]arden variety

considerations of culpability, criminal history, likelihood of re-

offense, seriousness of the crime, nature of the conduct and so

forth should not generally come as a surprise to trial lawyers who

have prepared for sentencing").

The appellant's remaining claim — that he was not

afforded an opportunity to be heard on the court's CHC

determination — is jejune. In mounting this claim, the appellant

invokes Federal Rule of Criminal Procedure 32(i)(1)(C), which

states that the sentencing court "must allow the parties' attorneys

to comment on . . . matters relating to an appropriate sentence."

Refined to its essence, the rule requires that the court furnish

the defendant "a meaningful opportunity to comment on the factual

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information on which his or her sentence is based." United States

v. Rivera-Rodríguez, 489 F.3d 48, 53-54 (1st Cir. 2007) (quoting

United States v. Berzon, 941 F.2d 8, 10 (1st Cir. 1991)). The

sentencing guidelines reflect much the same sentiment: they

require that a defendant be afforded "an adequate opportunity" to

address "any factor important to the sentencing determination

[that] is reasonably in dispute." USSG §6A1.3(a).

Here, the appellant had every opportunity to comment

upon the sentencing court's proposed treatment of the convictions

related to the Ruiz-Vega murder. There is no indication that the

court at any point refused to hear the appellant or his counsel

regarding the CHC determination — a determination that, as noted

above, actually favored the appellant. To cinch the matter, the

appellant's counsel, during the sentencing hearing, participated

in a discussion with the court and the prosecutor. In that

discussion, he assented to the court's decision to give the

appellant three additional criminal history points — the very

points that shifted the appellant from CHC III to CHC IV.

To say more about the ersatz "departure" claim would be

supererogatory. The appellant has not challenged the propriety of

his placement in CHC IV; instead, he has challenged only the

procedural aspects ancillary to the CHC determination. We hold,

without serious question, that there was no error, plain or

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otherwise, in the procedures accompanying the district court's CHC

determination.

B.

We turn next to the appellant's contention that the

district court misapplied the sentencing guidelines in determining

that his sentence should be imposed consecutively to the

millennium-long state sentence.6 Because it is at least arguable

that this contention was advanced below, review is for abuse of

discretion. See United States v. Carrasco-de-Jesús, 589 F.3d 22,

26 (1st Cir. 2009).

This assignment of error is groundless. To begin, the

district court had discretion to determine whether the sentence

should run consecutive to or concurrent with the state sentence.

After all, "[a] sentencing court's choice between a consecutive or

a concurrent sentence with respect to a defendant who is subject

to an undischarged [state sentence] is normally discretionary."

Carrasco-de-Jesús, 589 F.3d at 27 (citing 18 U.S.C. § 3584(a)).

6
With respect to this feature of his sentence, the appellant
reprises the contention that he should have been provided with
notice and an opportunity to be heard. This contention is
hopeless. The record makes manifest that the appellant had both
notice of the issue and a meaningful opportunity to advocate for
a concurrent sentence: that issue was spotlighted in the Agreement
and, before any sentence was imposed, defense counsel argued
vociferously that the court should run the aggregate federal
sentence concurrently with the undischarged state sentence.

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 To be sure, a district court's discretion to choose

between making a sentence consecutive or concurrent is not

absolute. See United States v. Ziskind, 471 F.3d 266, 271 (1st

Cir. 2006). In effecting such a choice, a court must consider the

factors set forth in 18 U.S.C. § 3553(a), "including any applicable

sentencing guidelines or policy statements." Carrasco-de-Jesús,

589 F.3d at 27 (citing 18 U.S.C. § 3584(b)). One such provision

is USSG §5G1.3, which deals with situations in which a defendant

is subject to an undischarged state sentence.7

USSG §5G1.3 covers four possible scenarios.

Subsection (a) applies when the offense of conviction "was

committed while the defendant was serving a term of imprisonment."

This subsection is inapposite where, as here, the offense of

conviction is committed before the commencement of the

undischarged state term of imprisonment. In that event, one of

the three remaining subsections may apply.

Subsections (b) and (c), though, pertain only when the

undischarged state term of imprisonment qualifies as "relevant

7 In his reply brief, the appellant complains that the
district court did not explicitly mention section 5G1.3. That is
true as far as it goes, but it does not take the appellant very
far. What counts is not whether a sentencing court explicitly
mentions a guideline provision but, rather, whether the court
correctly applies that provision.

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conduct" with respect to the offense of conviction.8 See, e.g.,

United States v. Lino, 493 F.3d 41, 44 (1st Cir. 2007); United

States v. McCarthy, 77 F.3d 522, 537 (1st Cir. 1996). Given this

limitation, neither subsection has any bearing here: the court

below ruled that the appellant's convictions stemming from the

Ruiz-Vega murder did not encompass relevant conduct, and that

ruling has not been appealed. It is, therefore, the law of the

case. See United States v. Matthews, 643 F.3d 9, 12 (1st Cir.

2011).

This leaves subsection (d), which covers "any other case

involving an undischarged term of imprisonment." USSG §5G1.3(d).

When — as in this case — an undischarged state term of imprisonment

covers an offense that took place prior to serving a term of

imprisonment and is not relevant conduct, subsection (d) applies.

That subsection cedes the sentencing court discretion to impose a

sentence that runs concurrently with, partially concurrently with,

or consecutively to the undischarged state term of imprisonment;

provided, however, that the sentencing court considers the factors

set out in 18 U.S.C. § 3553(a) and the applicable GSR. See United

States v. Llanos-Falero, 847 F.3d 29, 36 (1st Cir. 2017).

8
Subsection (b) applies to sentences already imposed. See,
e.g., Carrasco-de-Jesús, 589 F.3d at 27. Subsection (c) applies
to anticipated sentences. See USSG §5G1.3, cmt. n.3 (explaining
that "[s]ubsection (c) applies to cases in which the federal court
anticipates that, after the federal sentence is imposed, the
defendant will be sentenced in state court" (emphasis supplied)).

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 In this instance, the court carefully considered the

section 3553(a) factors and the appellant's guideline range. It

explained its calculation of the GSR and stated that it had

considered "the general circumstances of the offense and all

[section] 3553 factors." The court went on to note that the

appellant (age forty-four at the time of sentencing) had

consistently been before the judicial system since age thirty and

had recently been convicted of violent offenses related to what

the court described as "the Ponce massacre." Seen in this light,

we think that the district court acted comfortably within the

encincture of its discretion in choosing to run the aggregate

federal sentence consecutively to the undischarged state sentence.

See 18 U.S.C. § 3584(b); United States v. Figueroa-Figueroa, 791

F.3d 187, 191 (1st Cir. 2015).

III. CONCLUSION

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

the sentence is

Affirmed.

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