United States v. Marquez-Garcia

United States Court of Appeals
For the First Circuit

No. 16-1294

UNITED STATES OF AMERICA,

Appellee,

KELVIN MÁRQUEZ-GARCÍA,

Defendant, Appellant.

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

[Hon. Carmen Consuelo Cerezo, U.S. District Judge]

Before

Torruella, Selya and Thompson,
Circuit Judges.

Irma R. Valldejuli on brief for appellant.
Rosa Emilia Rodríguez-Vélez, United States Attorney, Mariana
E. Bauzá-Almonte, Assistant United States Attorney, Chief,
Appellate Division, and Mainon A. Schwartz, Assistant United
States Attorney, on brief for appellee.

July 5, 2017
SELYA, Circuit Judge. Defendant-appellant Kelvin

Márquez-García mounts a multifaceted challenge, on both procedural

and substantive grounds, to a 24-month sentence imposed following

the revocation of a term of supervised release. After careful

consideration, we summarily affirm. See 1st Cir. R. 27.0(c).

We briefly rehearse the relevant facts. In December of

2012, the appellant pleaded guilty to the unlawful possession of

a machine gun. See 18 U.S.C. § 922(o). The district court

sentenced him to a 21-month term of immurement, to be followed by

three years of supervised release. The appellant served his prison

sentence and embarked upon his supervised release term in August

of 2014. Two days shy of a year later, he was found to be in

possession of yet another gun.

In due course, the appellant pleaded guilty to a charge

of being a felon in possession of a firearm. See id. § 922(g)(1).

For this offense, the district court imposed a fresh 48-month term

of imprisonment, to be followed by three more years of supervised

release. No disposition was made at that time with respect to the

appellant's apparent violation of his original supervised release

term.

In September of 2015, the probation officer moved to

revoke the original supervised release term based on the conduct

underlying the appellant's felon-in-possession charge. The

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district court convened a revocation hearing, at which the

appellant conceded the violation. The court revoked the original

period of supervision; noted that the appellant's felon-in-

possession conviction was a Grade B violation, see USSG

§7B1.1(a)(2); and calculated the advisory guideline sentencing

range (GSR) at four to ten months, see id. §7B1.4(a). Because the

underlying offense (unlawful possession of a machine gun) was a

Class C felony, see 18 U.S.C. §§ 924(a)(2), 3559(a), the maximum

permitted term of imprisonment was 24 months, see id. § 3583(e)(3).

The appellant urged the court to sentence him at the

bottom of the GSR. The government asked for a sentence at the top

of the GSR. After considering the sentencing factors limned in 18

U.S.C. § 3583(e), the court sentenced the appellant to a 24-month

term of immurement, to run consecutively to his 48-month sentence

on the felon-in-possession charge. This timely appeal followed.

II.

The appellant challenges his revocation sentence on both

procedural and substantive grounds. We discuss his claims of error

one by one.

To begin, the appellant asserts that the district court

failed to give due consideration to the section 3583(e) factors.

As a general matter, appellate courts review preserved claims of

sentencing error for abuse of discretion. See Gall v. United

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States, 552 U.S. 38, 41 (2007). But when a party has failed to

raise a particular claim of error before the sentencing court,

appellate review is normally limited to plain error. See United

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

136 S. Ct. 258 (2015). To vault the formidable hurdle imposed by

plain error review, an appellant must show "(1) that an error

occurred (2) which was clear or obvious and which not only

(3) affected the [appellant's] 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). Because the appellant raises his

section 3583(e) claim for the first time on appeal, our review is

for plain error.

Section 3583(e) sets forth various factors that a

sentencing court must consider before imposing a revocation

sentence. This statute incorporates some, but not all, of the

familiar sentencing factors enumerated in 18 U.S.C. § 3553(a).

See United States v. Vargas-Dávila, 649 F.3d 129, 131 (1st Cir.

2011). These incorporated factors include, as relevant here, the

history and characteristics of the offender, see 18 U.S.C.

§ 3553(a)(1); the nature and circumstances of the new offense, see

id.; the need to deter further criminal conduct, see id.

§ 3553(a)(2)(B); and the need to protect the community from the

offender's penchant for criminal behavior, see id.

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§ 3553(a)(2)(C). Although a sentencing court must consider each

of the factors that section 3583(e) identifies, the court is not

obliged to address these factors "one by one, in some sort of rote

incantation when explicating its sentencing decision." United

States v. Dixon, 449 F.3d 194, 205 (1st Cir. 2006). Rather, the

court need only identify the principal factors upon which it relies

to reach its sentencing decision. See United States v. Turbides-

Leonardo, 468 F.3d 34, 40-41 (1st Cir. 2006).

During the revocation hearing, the district court stated

that it had considered all of the section 3553(a) factors. This

statement, in and of itself, is "entitled to significant weight."

United States v. Santiago-Rivera, 744 F.3d 229, 233 (1st Cir.

2014). Here, moreover, the court made particular reference to

those factors that it found most salient: the appellant's criminal

history, the serious nature and circumstances of his new offense,

the risk that his recidivist behavior posed to the community, and

the need to deter future criminal conduct. The fact that the court

did not explicitly mention the rest of the section 3583(e) factors

in its analysis does not mean that it failed to consider them.

See Turbides-Leonardo, 468 F.3d at 41 (explaining that, in this

context, "silence is not necessarily fatal"). We hold, therefore,

that the sentencing court committed nothing approaching plain

error with respect to its treatment of the section 3583(e) factors.

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B.

Relatedly, the appellant claims for the first time on

appeal that the district court erred in considering certain factors

before imposing his revocation sentence. Specifically, he takes

issue with the court's reliance on the serious nature of his new

offense and the risk that his criminal behavior posed to the

community. The appellant contends that courts may only consider

such factors when imposing a sentence for the offense that

triggered revocation, not when imposing the revocation sentence

itself.

We review the appellant's contention for plain error and

discern none. The contention contradicts the clear language of

section 3583(e), which expressly incorporates the strictures of

section 3553(a) requiring sentencing courts to consider "the

nature and circumstances of the offense," 18 U.S.C. § 3553(a)(1),

and the need "to protect the public from further crimes of the

[offender]," id. § 3553(a)(2)(C), before revoking a supervised

release term and imposing sentence. See id. § 3583(e)(3).

Consequently, it was both necessary and proper for the district

court to consider the challenged factors when imposing the

revocation sentence.1

1
To the extent that the appellant's contention can be read
as arguing that the court could not use his new offense conduct
both as a basis for sentencing him in connection with the new
offense and as a basis for sentencing him in connection with the

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C.

Next, the appellant argues that the district court erred

by mischaracterizing his underlying machine gun offense as a Class

C felony rather than a Class A felony. This argument lacks force.

The maximum sentence for unlawful possession of a

machine gun is ten years. See id. § 924(a)(2). Since Class C

felonies are offenses that bear incarcerative terms of 10 to 25

years, see id. § 3559(a)(3), the appellant's original offense was

— as the district court ruled — a Class C felony.

We add, moreover, that the revocation of a supervised

release term imposed for the commission of a Class A felony is

subject to a five-year maximum sentence. See id. § 3583(e)(3).

By contrast, the revocation of a supervised release term imposed

for the commission of a Class C felony is subject to a two-year

maximum sentence. See id. In this instance, the sentencing court

properly identified the applicable statutory maximum revocation

sentence (two years). Given the facts of this case, there is no

reason to believe that an error in the classification of the

underlying felony (if one occurred) was anything but harmless.

supervised release violation, he is simply wrong. See United
States v. Coombs, 857 F.3d 439, 451 (1st Cir. 2017) (explaining
that nothing prevents a court from sentencing a defendant for the
same transgression "both as a criminal and as a supervised release
violator").

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D.

The appellant's last claim of procedural error is that

the district court failed adequately to explain its reasoning for

imposing an upwardly variant sentence. This claim was not advanced

below and, thus, engenders plain error review. See Ruiz-Huertas,

792 F.3d at 226.

The Supreme Court has admonished that a sentencing court

ought to state its reasons for imposing a particular sentence,

"including an explanation for any deviation from the Guidelines

range." Gall, 552 U.S. at 50-51. Such an explanation, though,

need not be "precise to the point of pedantry." United States v.

Del Valle-Rodríguez, 761 F.3d 171, 177 (1st Cir. 2014). Instead,

the court's duty to explicate its reasoning for imposing a variant

sentence requires only a coherent justification.2 See id.

The district court's explanation for imposing an

upwardly variant 24-month sentence is admittedly terse. But no

more is exigible under plain error review where, as here, the

sentence imposed follows "by fair inference from the sentencing

record." United States v. Montero-Montero, 817 F.3d 35, 38 (1st

2 This justification requirement is at its lowest ebb in the
revocation context. While the sentencing guidelines have been
deemed advisory since the Supreme Court's landmark decision in
United States v. Booker, 543 U.S. 220, 245-46 (2005), the
guidelines for revocation sentences were written, in the first
instance, merely as non-binding policy statements, see United
States v. Work, 409 F.3d 484, 492 (1st Cir. 2005), and so remain.

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Cir. 2016). This proposition has special bite when one considers

the celerity with which the appellant procured another gun while

on supervised release for his earlier machine gun conviction. See,

e.g., United States v. Vázquez-Martínez, 812 F.3d 18, 24 (1st Cir.

2016) (affirming imposition of upwardly variant sentence under

analogous circumstances).

In all events, the district court noted the principal

factors upon which it relied, including the binary need to protect

the public from, and to deter further criminal conduct by, an

offender who committed a gun-related felony less than a year after

completing a substantial incarcerative term for unlawful

possession of a machine gun. See United States v. Vargas-García,

794 F.3d 162, 166 (1st Cir. 2015) (observing that sentencing court

"need only identify the main factors behind its decision"). For

the purpose of plain error review, the court sufficiently explained

its rationale by touching upon each of the factors that it

supportably found significant. We hold, therefore, that the

district court did not commit plain error in explaining its reasons

for imposing the upwardly variant revocation sentence.

This leaves the appellant's claim that his 24-month

revocation sentence is substantively unreasonable. Specifically,

he submits that the district court offered no credible explanation

for imposing an upwardly variant sentence. The standard of review

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for claims of substantive unreasonableness is "somewhat blurred."

Ruiz-Huertas, 792 F.3d at 228. In order to skirt this murky area,

we assume, favorably to the appellant, that the abuse-of-

discretion standard of review applies. See, e.g., id. (making

similar assumption).

Under the abuse-of-discretion standard, a sentence is

substantively reasonable as long as the sentencing court provided

a "plausible sentencing rationale" and "reached a 'defensible

result.'" United States v. Rodríguez-Adorno, 852 F.3d 168, 177

(1st Cir. 2017) (quoting United States v. Martin, 520 F.3d 87, 96

(1st Cir. 2008)). There are typically "a broad range of reasonable

sentences that can apply in any given case." Id. A procedurally

correct sentence will be vacated on the ground of substantive

unreasonableness only if it "falls outside the expansive

boundaries" of the universe of reasonable sentences. Martin, 520

F.3d at 92.

Here, the sentencing court articulated a plausible

rationale for imposing the upwardly variant sentence. It noted

the short time that had elapsed between the appellant's release

from prison and his commission of a new, gun-related crime; the

serious (and repetitive) nature of the new offense; the danger

presented to the community by the appellant's unrepentant

behavior; and the need for deterrence. Contrary to the appellant's

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self-serving suggestion, this rationale goes well beyond a mere

reference to his felon-in-possession conviction.

We are likewise persuaded that the district court

reached a defensible result. The appellant had been on supervised

release for less than a year when he was arrested on the felon-

in-possession charge, and he had two years of his original

supervised release term remaining at that time. This recidivist

behavior and its timing combined to make manifest a gross

disrespect for the conditions of his supervision and constituted

hard evidence that the appellant's earlier incarceration had not

taught him any lasting lessons. Although the sentence imposed is

stern, the court acted within the wide encincture of its discretion

by meting out a 24-month sentence to an appellant who had,

figuratively, thumbed his nose at the justice system.

That ends this aspect of the matter. In view of the

district court's plausible sentencing rationale and its fashioning

of a sentence within the "broad range of reasonable sentences,"

Rodríguez-Adorno, 852 F.3d at 177, the appellant's claim of

substantive unreasonableness perforce fails. There was no abuse

of discretion.

III.

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

the sentence is summarily

Affirmed. See 1st Cir. R. 27.0(c).

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