United States Court of Appeals
For the First Circuit
No. 16-1205
UNITED STATES OF AMERICA,
Appellee,
v.
HECTOR LUIS TORRES-FIGUEROA,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. José Antonio Fusté, U.S. District Judge]
Before
Barron, Selya, and Stahl,
Circuit Judges.
Jonathan G. Mermin and Preti, Flaherty, Beliveau & Pachios,
LLP on brief for appellant.
Rosa Emilia Rodríguez-Vélez, United States Attorney, Mariana
E. Bauzá-Almonte, Assistant United States Attorney, Chief,
Appellate Division, and Julia M. Meconiates, Assistant United
States Attorney, on brief for appellee.
June 23, 2017
BARRON, Circuit Judge. Hector Luis Torres-Figueroa
("Torres") challenges his sentence of 60 months' imprisonment. We
affirm.
I.
On September 10, 2015, Torres was indicted on four counts
in the United States District Court for the District of Puerto
Rico: first, possession with intent to distribute marijuana, in
violation of 21 U.S.C. § 841(a)(1) and 841(b)(1)(C); second,
possession with intent to distribute cocaine, in violation of 21
U.S.C. § 841(a)(1) and 841(b)(1)(C); third, possession of a firearm
in furtherance of a drug trafficking crime, in violation of 18
U.S.C. § 924(c)(1)(A)(i); and fourth, possession of a machine gun
in furtherance of a drug trafficking crime, in violation of 18
U.S.C. § 924(c)(1)(B)(ii). On September 24, 2015, Torres was
convicted by a jury of the first and second counts and acquitted
of the third and fourth counts.
The amended pre-sentence investigation report ("PSR")
that the Probation Office prepared calculated Torres's base
offense level by first grouping Count 1 and Count 2 into a single
Count Group, pursuant to United States Sentencing Guidelines
§ 3D1.1(a). The PSR then determined that the applicable base
offense level for that Count Group was 12, under U.S.S.G.
§ 2D1.1(c)(14), in consequence of the quantity of drugs involved.
And, the PSR determined that Torres's criminal history category
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was II. The PSR then identified the sentencing range under the
guidelines for Torres as 12-18 months' imprisonment.
Before sentencing, the government submitted a sentencing
memorandum recommending that a two-level enhancement be imposed
under U.S.S.G. § 2D1.1(b), which applies when the defendant
possessed a firearm during the drug trafficking offense. That
enhancement, combined with Torres's criminal history category,
would yield a sentencing range under the sentencing guidelines of
18-24 months' imprisonment. The government, however, recommended
that the District Court impose a sentence of 120 months'
imprisonment. The government based that recommendation on, among
other things, Torres's extensive drug-related criminal history and
the fact that the gun that was allegedly in Torres's possession
while he was engaged in drug trafficking was a fully automatic
rifle with an obliterated serial number.
At sentencing, the District Court applied a base offense
level under the sentencfng guidelines of 12. The District Court
did so because the District Court determined that Torres's drug
trafficking involved less than 50 grams of cocaine. U.S.S.G.
§ 2D1.1(a)(5). The District Court noted that Torres did not object
to the imposition of the two-level firearms enhancement, but that
the District Court was not going to impose the enhancement because
"I should not give him the two points and double count if you
will." Instead, the District Court made a guidelines calculation
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that, in accordance with the PSR, yielded a recommended sentencing
range of 12-18 months' imprisonment, and then imposed a variant
sentence of 60 months' imprisonment. The District Court did so on
the basis of the testimony of law enforcement officers at trial
indicating that Torres "[had] been involved in drugs for a long,
long time," and that he possessed, while committing the offenses
for which he was convicted, a fully automatic rifle with the
obliterated serial number, along with six magazines and over one
hundred rounds of ammunition, notwithstanding that he was
acquitted on the firearms counts. The District Court explained
that it based 42 months of the 60 months of imprisonment on
Torres's firearms-related conduct.
II.
Torres contends that the District Court erred by
imposing a 42-month variance over and above the top of the 12-18
months sentencing range set forth in the sentencing guidelines.
Torres argues that, under the guidelines, the firearms-related
conduct should have resulted only in the application of the two-
level enhancement to his base offense level, and thus should have
resulted in a sentencing range under the sentencing guidelines of
only 18-24 months' imprisonment. And Torres further contends that
the District Court made clear that it could not impose both the
enhancement and the variant sentence without "double counting."
Thus, Torres argues that, "if the [District Court] had given the
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two-level [enhancement] -- as it was required to do -- it would
not have imposed a variance on top of the resulting 18-to-24 month
range."
Torres concedes that he did not make this objection
below. And, in fact, he specifically advised the District Court
that it was not required to apply the two-level firearms
enhancement, even if the evidence sufficed to support the
enhancement's application. For that reason, the government argues
that Torres has waived his right to contend now, in the course of
challenging the variant sentence, that the District Court was
required to apply the enhancement.
Without deciding whether Torres has waived this
argument, we conclude that Torres's contention fails under the
plain error standard of review, which Torres asks us to apply.
See United States v. Ruiz-Huertas, 792 F.3d 223, 226 (1st Cir.
2015), cert. denied, 136 S. Ct. 258 (2015) ("[W]here a party fails
to preserve claims of error in the court below . . . review is for
plain error."). "To prevail under this daunting standard, the
defendant 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." Id. (alteration in
original) (citation omitted). Torres cannot meet that standard.
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A district court may vary a sentence on the basis of
conduct that is in part accounted for by an enhancement in the
sentencing guidelines so long as the district court "articulate[s]
specifically the reasons that this particular defendant's
situation is different from the ordinary situation covered by the
guidelines calculation." United States v. Zapete-Garcia, 447 F.3d
57, 60 (1st Cir. 2006). And here, the District Court explained
that Torres's situation was different in important ways from the
ordinary situation covered by the enhancement, because of Torres's
criminal history, the fully automatic nature of the weapon, the
weapon's obliterated serial number, and the large quantity of
ammunition. Moreover, Torres cites no authority to support the
proposition that a district court must impose an enhancement in
order to impose a variant sentence on the basis of conduct that
would not only justify the enhancement, but would also justify a
sentence greater than the guidelines range under the enhancement.
Given that the record indicates that the District Court declined
to apply the enhancement here in order to avoid double counting
that portion of the conduct that was not different from the
ordinary situation covered by the enhancement, we see no clear or
obvious error in the District Court's deciding not to apply the
enhancement and to impose a variant sentence of the length it
selected.
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III.
The sentence is affirmed.
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