United States v. Lopez-Miranda

Not for Publication in West's Federal Reporter

United States Court of Appeals
For the First Circuit

No. 15-1308

UNITED STATES OF AMERICA,

Appellee,

v.

JOSÉ EDGARDO LÓPEZ-MIRANDA,
a/k/a José Miranda-López, a/k/a El Gordo,

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

Howard, Chief Judge,
Torruella and Kayatta, Circuit Judges.

James S. Hewes on brief for appellant.
Mariana E. Bauzá Almonte, Assistant United States Attorney,
Chief, Appellate Division, Juan Carlos Reyes-Ramos, Assistant
United States Attorney, and Rosa Emilia Rodríguez-Vélez, United
States Attorney, on brief for appellee.

April 12, 2017
 HOWARD, Chief Judge. José Edgardo López-Miranda

challenges the reasonableness of his 200-month incarcerative

sentence for conspiracy to possess cocaine with intent to

distribute in violation of 21 U.S.C. §§ 841(a)(1) and 846. After

careful consideration, we affirm.

I.

López was a member of a Puerto Rican drug-trafficking

organization between 2009 and 2010. In October 2010, a federal

grand jury indicted López and thirty-three coconspirators for

various crimes arising out of their drug-trafficking activities.

Although López initially avoided apprehension, federal authorities

took him into custody in December 2012. López subsequently pleaded

guilty to conspiring to possess cocaine with intent to distribute.

The parties stipulated that López was accountable for at

least five but less than fifteen kilograms of cocaine, which

established a Sentencing Guidelines Base Offense Level of 32. See

U.S.S.G. § 2D1.1(c)(4) (effective Nov. 1, 2012). Because López

accepted responsibility, the parties agreed that his Total Offense

Level was 29. See U.S.S.G. § 3E1.1. The plea agreement indicated

that a total offense level of 29 corresponded to a sentencing range

of 87 to 108 months, although that would have been true only if

López were in criminal history category I. See U.S.S.G. Ch. 5,

Pt. A (Sentencing Table) (effective Nov. 1, 2012). Significantly,

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the parties made no stipulation regarding López's criminal

history. As the count of conviction carries a mandatory minimum

sentence of 120 months, the parties agreed jointly to recommend a

sentence of that length. The district court subsequently accepted

López's guilty plea.

Prior to sentencing, the probation officer produced a

presentence investigation report ("PSR"). The PSR tracked the

plea agreement with respect to the Base Offense Level. It differed

from the plea agreement, however, by labeling López a career

offender. See U.S.S.G. § 4B1.1(a). This increased López's offense

level to 37. See id. § 4B1.1(b). After a three-level reduction

for acceptance of responsibility, the Total Offense Level was 34.

According to the PSR, López's criminal history category was VI.

See id. All told, López's Guidelines Sentencing Range was 262-

327 months. See U.S.S.G. Ch. 5, Pt. A (Sentencing Table).

López's criminal history includes: a 1995 conviction for

felony domestic violence; a 2004 conviction for felony aggravated

assault; and 2013 convictions for both child abuse and felony

omission in the prevention of a crime. With respect to the last

of these, López was found to have placed the body of his then-

partner's infant son, sealed in a trash bag, in a freezer after

the boy's mother asphyxiated the child.

At the sentencing hearing, López argued that the PSR

calculations overrepresented his criminal history and asked to be

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sentenced to 120 months' imprisonment, the statutory minimum.

Although the sentencing court considered López's violent past a

significant aggravating factor, it was sympathetic to the argument

that the career offender Guidelines overrepresented his criminal

history. After considering the relevant 18 U.S.C. § 3553(a)

sentencing factors, the judge imposed an incarcerative sentence of

200 months.

This appeal timely followed.

II.

On appeal, López argues that his "200 month sentence is

unreasonable and greater than necessary to effectuate the

[§ 3553(a)] factors." Claims of sentencing error trigger a two-

step inquiry: "we first determine whether the sentence imposed is

procedurally reasonable and then determine whether it is

substantively reasonable." United States v. Clogston, 662 F.3d

588, 590 (1st Cir. 2011). Here, López objects only to the

substantive reasonableness of his sentence.

We review the substantive reasonableness of a sentence

for abuse of discretion, "taking into account the totality of the

circumstances." United States v. Zavala-Martí, 715 F.3d 44, 50

(1st Cir. 2013). Although López did not object below, we will

assume arguendo that our review is for abuse of discretion. Cf.

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United States v. Nuñez, 840 F.3d 1, 6–7 (1st Cir. 2016) (assuming

without deciding that review is for abuse of discretion).

The sentencing court made specific, detailed findings

with respect to the relevant § 3553(a) factors and adequately

explained its sentence. See United States v. Arroyo-Maldonado,

791 F.3d 193, 201 (1st Cir. 2015). Indeed, as the sentencing

transcript makes clear, the judge thoughtfully considered and

discussed these factors with both the defendant and his counsel at

some length. Thus, López's "argument amounts to a disagreement

with the district court's weighing of the different sentencing

factors," and we find no abuse of the court's broad discretion.

Cf. id. at 200 (finding no plain error when defendant disagreed

with the sentencing court's weighing of factors).

Moreover, López's argument that there is an unwarranted

disparity between his sentence and the sentences of his co-

conspirators does not succeed because López and his co-

conspirators are not "identically situated." United States v.

Rivera-González, 626 F.3d 639, 648 (1st Cir. 2010). In fact, López

and his co-defendants are not so much as similarly situated. They

were sentenced by different judges. See id. (stating that there

"may be a reason for concern" if two identically situated

defendants "receive different sentences from the same judge").

Further, while some of López's co-defendants cooperated with the

government, López himself did not, see United States v. Rossignol,

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780 F.3d 475, 478 (1st Cir. 2015) (distinguishing between co-

defendants who cooperate and those who do not), and López's defense

counsel stated at sentencing that he was "pretty sure" López's co-

defendants were not career offenders, see Rivera-González, 626

F.3d at 648 (differentiating defendants based on their criminal

history).

Under the circumstances, imposition of a 200-month

sentence was not substantively unreasonable.1

III.

We affirm the district court's sentence.

1
Although we perceive no basis for disturbing the
district court's incarcerative sentence, López does point out some
apparent discrepancies between the magistrate-judge's Report and
Recommendation on Plea of Guilty and the change-of-plea hearing
transcript. Nevertheless, because López makes no claim on appeal
that these omissions affected his substantial rights, we need not
examine them further. See United States v. Dominguez Benitez, 542
U.S. 74, 76 (2004) ("[W]e hold that a defendant [raising an
unpreserved Rule 11 error on appeal] is obliged to show a
reasonable probability that, but for the error, he would not have
entered the plea."). He has waived any argument that the change-
of-plea colloquy was inadequate. See United States v. Zannino, 895
F.2d 1, 17 (1st Cir. 1990).

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