United States v. Garay-Sierra

United States Court of Appeals
For the First Circuit

No. 16-2394

UNITED STATES OF AMERICA,

Appellee,

v.

WILFREDO GARAY-SIERRA,

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Francisco A. Besosa, U.S. District Judge]

Before

Howard, Chief Judge,
Lynch and Thompson, Circuit Judges.

Derege B. Demissie and Demissie & Church on brief for
appellant.
John P. Cronan, Acting Assistant Attorney General, Amanda B.
Harris, Attorney, Criminal Division, Appellate Section, United
States Department of Justice, Rosa E. Rodríguez–Vélez, United
States Attorney, and Thomas F. Klumper, Assistant United States
Attorney, Acting Chief, Appellate Division, on brief for appellee.

March 16, 2018
 THOMPSON, Circuit Judge.

PREFACE

Wilfredo Garay-Sierra ("Garay") is back with us again,

this time contesting an 84-month prison term he received on a

firearm charge following a remand for resentencing. Stating our

conclusion up front: we affirm, for reasons we will come to, right

after we highlight those details (and only those details) needed

to understand the present appeal — interested readers can find

more info in our earlier opinion, reported at United States v.

Garay-Sierra, 832 F.3d 64 (1st Cir. 2016).

CASE TRAVEL

Indictment and Plea Agreement

Indicted for carrying and brandishing a shotgun during

a crime of violence, see 18 U.S.C. § 924(c)(1)(A)(ii), Garay pled

guilty — as part of a plea agreement with the government — only to

possessing the weapon. Garay-Sierra, 832 F.3d at 65-66.1 The

criminal code imposes a mandatory-minimum sentence of 60 months

and a maximum of life on anyone who "possesses a firearm" during

a crime of violence. See id. at 69 (citing 18 U.S.C.

1 Because this appeal follows a guilty plea, we draw the
background material (as we did before) from the plea agreement,
the transcripts of the pertinent court hearings, and the undisputed
portions of the pre-sentence investigation report ("PSR" — fyi,
Garay agreed in his sentencing memo that "the facts of the case"
in the PSR "are correct"). See id. at 66 n.1.
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§ 924(c)(1)(A)(i)). But it imposes a mandatory-minimum sentence

of 84 months and a maximum of life on anyone who "brandishe[s]" a

"firearm" during a crime of violence. See id. (citing 18 U.S.C.

§ 924(c)(1)(A)(ii)); see also United States v. Vargas-García, 794

F.3d 162, 164-65 (1st Cir. 2015). So by copping to "possession,"

Garay acknowledged that his admission of guilt exposed him to a

sentence of 60 months to "life."

Original Sentence

Unfortunately, the judge found at Garay's initial

sentencing that he had "brandished" the shotgun. The judge then

used that finding to boost the mandatory-minimum sentence from 60

months to 84 months. See Garay-Sierra, 832 F.3d at 69. And after

going over the relevant sentencing factors in 18 U.S.C. § 3553(a),

the judge hit Garay with an 84-month sentence for the firearm

offense.2 See id. at 66.

2 The § 3553(a) factors include:
(1) the nature and circumstances of the offense and the
history and characteristics of the defendant;
(2) the need for the sentence imposed —
(A) to reflect the seriousness of the offense, to
promote respect for the law, and to provide just
punishment for the offense;
(B) to afford adequate deterrence to criminal conduct;
(C) to protect the public from further crimes of the
defendant; and . . .
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 We said "unfortunately" a second ago for a reason. You

see, caselaw holds that "[a]ny fact that, by law, increases the

penalty for a crime is an element that must be submitted to the

jury and found beyond a reasonable doubt." Alleyne v. United

States, 570 U.S. 99, 102 (2013) (quotation marks omitted). This

being so, and because the judge-found brandishing finding upped

the applicable mandatory-minimum term, we had no choice but to

vacate that sentence and remand for a sentencing do-over. See

Garay-Sierra, 832 F.3d at 69.

Resentence and Reappeal

Fast forward to the resentencing hearing. There, the

judge noted that Garay faced a mandatory minimum of at least 60

months' imprisonment "because the plea was possession of a

firearm," with the mandatory minimum also serving as the guideline

sentence for his offense. See United States v. Rivera-González,

776 F.3d 45, 49 (1st Cir. 2015) (explaining that the "mandatory

minimum sentence under section 924(c) . . . is deemed to be the

guideline sentence"). Consistent with the plea agreement, Garay

and the government recommended a 60-month sentence.

(6) the need to avoid unwarranted sentence disparities
among defendants with similar records who have been
found guilty of similar conduct . . . .
Section 3553(a) also requires judges to "impose a sentence
sufficient, but not greater than necessary, to comply with the
purposes" of sentencing listed in factor (2).
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 Reminding everyone that he had discussed and applied

many of the § 3553(a) factors at Garay's original sentencing, the

judge thought he should say a few more words on two of them. First

the judge talked about the heightened need for deterrence given

"Puerto Rico's high firearms and violent crime rate." Then the

judge spoke about the seriousness of Garay's offense. Relying (at

least implicitly) on the unobjected-to facts in the PSR, the judge

commented that while Garay had pled guilty to possessing the

shotgun, he had "carried" the firearm during a carjacking, which

the judge said meant he had "brandished" the firearm as defined by

the pertinent statute and sentencing guideline.3 In other words,

from these references we take it the judge ruled that these facts

showed Garay had displayed the gun (Garay had carried a shotgun as

he and his fellow carjackers ordered the two victims into the

3 18 U.S.C. § 924(c)(4) says "the term 'brandish' means, with
respect to a firearm, to display all or part of the firearm, or
otherwise make the presence of the firearm known to another person,
in order to intimidate that person, regardless of whether the
firearm is directly visible to that person." And U.S.S.G. § 1B1.1,
commentary (note 1(C)), similarly says
"[b]randished" with reference to a dangerous weapon
(including a firearm) means that all or part of the
weapon was displayed, or the presence of the weapon was
otherwise made known to another person, in order to
intimidate that person, regardless of whether the weapon
was directly visible to that person. Accordingly,
although the dangerous weapon does not have to be
directly visible, the weapon must be present.

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vehicle — as reported in the PSR, without contradiction), thus

meeting the brandishing definitions in the statute and guideline.

The judge also noted that one of Garay's carjacking cohorts,

referred to in the PSR as "Minor 1," had brutalized the carjackees,

(a) hitting the male victim on the head with a silver handgun and

threatening to kill him, and (b) sexually assaulting the female

victim.

Again repeating that he knew the plea agreement

"exposed" Garay "to a statutory minimum" term of 60 months behind

bars, the judge concluded that, based on the reasons he had given,

an 84-month term was "sufficient but not greater than necessary"

to accomplish the goals of sentencing set out in § 3553(a).

Garay's counsel objected, calling the sentence procedurally

unsound and substantively unreasonable because, to his way of

thinking, the judge spent too much time dwelling on Minor 1's

conduct in sifting through the facts — facts, by the way, that

counsel conceded "did occur." Quoting from our earlier opinion,

the prosecutor insisted that Garay was hardly "an innocent

bystander" and clarified that Minor 1's silver handgun turned out

to be "a fake." Garay's counsel's objection did not cause the

judge to rethink the sentence.

An unhappy Garay now appeals his resentencing.

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 ARGUMENTS AND ANALYSIS

Rather than repeat the arguments the district judge gave

a thumbs down to, Garay raises two entirely new claims in the hopes

of scoring a reversal. The first is a claim that the judge wrongly

rejected the parties' plea agreement. The second is a multipart

claim that the judge procedurally erred in sentencing him to 84

months of imprisonment (Garay doesn't come right out and call each

part a procedural error, but that's the gist of his argument, given

how he pitches the claim to us). For those unfamiliar with the

intricacies of federal-sentencing law, a judge procedurally errs

by, among other things, "selecting a sentence based on erroneous

facts." Gall v. United States, 552 U.S. 38, 51 (2007).4 Using

language strikingly similar to the Gall passage, Garay starts off

this facet of his procedural-reasonableness claim by blasting the

judge for "relying upon an erroneous finding of brandishing a

firearm in resentencing [him] to the same term as the vacated and

remanded original sentence." To hear him tell it, the judge-found

brandishing finding does not jibe with Alleyne's teachings;

4 See generally United States v. McCall, 649 Fed. App'x 945,
947 (11th Cir. 2016) (considering an alleged Alleyne error under
the procedural-reasonableness rubric); United States v. Cassius,
777 F.3d 1093, 1096-97 (10th Cir. 2015) (finding no "procedural
error" under Alleyne because the "court only used its own . . .
finding as a mere sentencing factor to help choose a sentence
within the proper statutory range").
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alternatively, he argues, the record facts hardly constitute

brandishing as that term is understood in the relevant statute and

sentencing guideline; and alternatively still, he insists, the

judge relied on nonrecord facts in his sentencing assessment.

Garay wraps up his procedural-reasonableness claim by faulting the

judge for premising the sentence on Puerto Rico's violent-crime

rate rather than on an individualized assessment of his

circumstances and for creating a disparity between his sentence

and the sentences of other defendants across the country. The

government, unsurprisingly, thinks Garay's analysis is wrong from

start to finish. We, for our part, think the government is more

right than Garay.

Standard of Review

The parties sort of talk past each other over which

standard of review applies. Garay believes he properly preserved

each issue, thus triggering "abuse of discretion" and "harmless

error" review. The government believes he preserved nothing, thus

triggering "plain error" review. We agree with the government

that because his arguments here are different from the ones he

made below, Garay must show plain error — an excruciatingly

difficult task, requiring him to prove "error, plainness,

prejudice to [him], and the threat of a miscarriage of justice."

See United States v. Torres–Rosario, 658 F.3d 110, 116 (1st Cir.

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2011); see also United States v. Harakaly, 734 F.3d 88, 94 (1st

Cir. 2013).

Plea-Agreement Claim

On to Garay's first batch of arguments, which focuses on

how the judge (supposedly) botched matters by rejecting the

parties' plea agreement. Regrettably for Garay, though, plain

error is plainly absent here.

Contrary to what Garay thinks, the judge did accept the

plea agreement — the judge simply rejected the parties' joint

sentencing recommendation, as he had every right to do. The reason

for this is straightforward. The parties executed a plea agreement

under a rule of criminal procedure that says the government agrees

to "recommend, or agree[s] not to oppose the defendant's request,

that a particular sentence or sentencing range is appropriate" —

but (and it is a very big "but") the rule then says "such a

recommendation or request does not bind" the judge. See Fed. R.

Crim. P. 11(c)(1)(B) (emphasis added).5 And all signs point to

Garay's knowing about the plea agreement's terms, despite his

assertions otherwise. We say this because the judge asked him

point-blank if he knew that (a) "the plea agreement is just a

5The plea agreement is emblazoned with "Pursuant to Rule
11(c)(1)(B) FRCP" under the case caption — which definitively shows
what type of plea agreement the parties signed on to.
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recommendation to me," that (b) "I can reject those recommendations

without permitting you to withdraw your plea of guilty," and that

(c) "I can impose a sentence on you that is either more severe or

less severe" than "the sentence being recommended" by the parties.

And Garay answered "[y]eah" to each question. So, because the

judge was "not bound by the parties' mutual embrace of a

recommended sentence," see Rivera-González, 776 F.3d at 51, Garay

has shown no error — much less plain error — on the plea-agreement

issue.

Garay talks up a couple of cases in an attempt to

persuade us differently. But neither is a difference-maker because

each relies on rules other than Rule 11(c)(1)(B). In re Morgan,

for example, is a Ninth Circuit case involving an agreement made

under Rule 11(c)(1)(C). See 506 F.3d 705, 707 (9th Cir. 2007).

That rule says a stipulated sentence "binds" the judge if the judge

"accepts the plea agreement," see Fed. R. Crim. P. 11(c)(1)(C)

(emphasis added) — and so is unlike the rule in play here. United

States v. Escobar Noble is a case by us involving a charge bargain.

See 653 F.2d 34, 35-36 (1st Cir. 1981); see generally United States

v. Carrozza, 807 F. Supp. 156, 158 (D. Mass. 1992) (explaining

that Escobar Noble involved a charge bargain). A charge bargain

is a plea agreement where the prosecutor agrees to drop certain

charges in exchange for the defendant's guilty plea on other

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charges. See Black's Law Dictionary 1338 (10th ed. 2014).6 A

judge may, as a matter of discretion, "accept . . . [or] reject [a

charge-bargain agreement], or may defer a decision until the

[judge] reviewed the [PSR]." See Fed. R. Crim. P. 11(c)(3)(A).

As Garay notes, Escobar Noble says an abuse of discretion occurs

if a judge rejects a charge bargain when there is a "consideration

so compelling as to necessitate acceptance of the plea." 653 F.2d

at 36. But because Garay's agreement is not a charge bargain,

Escobar Noble is of no help to him. And no more need be said about

these cases.

Procedural-Reasonableness Claim

Garay fares no better with his multifaceted procedural-

reasonableness claim — here too we agree with the government that

6 See generally United States v. Vanderwerff, 788 F.3d 1266,
1271 (10th Cir. 2015) (explaining that "[p]lea bargains are
commonly either 'charge bargains,' where the prosecutor agrees to"
nix "some charges" if the defendant agrees to plead guilty "on
others, or 'sentence bargains,' where the prosecutor agrees to
support, or at least not oppose, a particular sentence" — and
adding that judges "enjoy considerable discretion in their
consideration of sentence bargains because 'the prosecution's role
. . . is strictly advisory,'" though "judicial discretion is more
limited with respect to charge bargains because such bargains 'are
primarily a matter of discretion for the prosecution' and the
[judges'] 'sentencing discretion is implicated only as an
incidental consequence of the prosecution's exercise of executive
discretion'" (quoting United States v. Robertson, 45 F.3d 1423,
1437-38 (10th Cir. 1995))).
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the judge's conduct does not come within shouting distance of plain

error.7

Brandishing Issue

Interestingly, Garay concedes that the district judge

"technically followed" Alleyne during resentencing because the

judge never suggested that the judge-found brandishing finding

triggered an 84-month mandatory minimum. He just basically thinks

the judge violated Alleyne's spirit by using the "erroneous"

finding to reimpose the same 84-month term as before. Though

artfully crafted, we believe his contention falls well short of

satisfying the exacting plain-error standard.

To protect an accused's Sixth Amendment rights, Alleyne

says any fact (other than the fact of a prior conviction) that

jacks up a compulsory minimum sentence must be found by a jury (or

by a judge in a bench trial) beyond a reasonable doubt, if the

7 Garay's brief makes no adequately developed claim that the
sentence is substantively unreasonable, thus waiving any argument
in this direction that he might have had. See, e.g., United States
v. Taylor, 848 F.3d 476, 496 n.9 (1st Cir. 2017); Rodríguez v.
Municipality of San Juan, 659 F.3d 168, 175 (1st Cir. 2011). And
even if not waived, any argument in the substantive-reasonableness
direction would fail: the judge reasonably considered how Garay's
displaying of the shotgun instilled fear in the victims and how
the shotgun helped the crime succeed — so the 84-month prison term
rests on "a plausible sentencing rationale" and reaches "a
defensible result," making the sentence "substantively
reasonable." See United States v. Martin, 520 F.3d 87, 96 (1st
Cir. 2008).
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defendant does not admit the fact. See 570 U.S. at 103. But while

a judge cannot make findings to establish a mandatory minimum, he

can make findings under a preponderance standard "to guide [his]

discretion in selecting a punishment within limits fixed by law."

See id. at 113 n.2 (quotation marks omitted). That is true even

if such findings cause the judge "to select sentences that are

more severe than the ones [he] would have selected without those

facts." See id. After all, to quote Alleyne again, "nothing" in

the whole history of sentencing suggests judges cannot "exercise

discretion — taking into consideration various factors relating

both to offense and offender — in imposing a judgment within the

range prescribed by statute." Id. at 116 (quotation marks

omitted).

Turning from generalities to specifics, we stress that

the judge's gun-brandishing finding did not set the statutory

minimum — Garay's gun-possessing plea did, leading to a sentence

of at least 60 months and up to life in prison, as the judge

himself essentially recognized.8 All the judge did was use his

brandishing finding to pick a sentence within that authorized range

8
This means Garay's case is quite different from the big
cases he hangs his hat on, Alleyne and United States v. Lewis, 802
F.3d 449 (3d Cir. 2015). A Sixth Amendment problem existed in
both Alleyne and Lewis because the judges' brandishing findings
fixed the mandatory minimums, see Alleyne, 570 U.S. at 104, 107-
18; Lewis, 802 F.3d at 453-54 — a problem that does not exist here.
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— something that is perfectly permissible in a post-Alleyne world.

See United States v. Ramírez-Negrón, 751 F.3d 42, 48-51 (1st Cir.

2014) (emphasizing, among other things, that "no Alleyne error

occurs when there is no mandatory minimum sentence imposed which

is triggered by judicial factfinding"); see also United States v.

Moore, 634 F. App'x 483, 488 (6th Cir. 2015) (affirming an 8-year

sentence based on a judge's finding that the defendant "discharged"

a weapon, even though the jury convicted him "of using" the weapon,

because the finding "did not increase the applicable statutory

minimum" — the judge "acknowledged" that a 5-year mandatory minimum

applied and opted to add 3 years to the term; and while "[i]t may

seem anomalous" that a sentencing court cannot use "its own factual

findings to impose a higher mandatory sentence" but can "use its

own factual findings to increase the sentence over the mandatory

minimum[,] . . . Alleyne seems to contemplate and accept the

possibility"). So we see no error, say nothing of plain error.

Which brings us to Garay's claim that the facts do not

add up to brandishing, as defined by the applicable statute and

sentencing guideline — both of which (remember) say brandish means

"to display all or part of" a gun or make the gun's "presence known

. . . to another person, in order to intimidate the person,

regardless of whether the" gun is or was "directly visible to that

person." See 18 U.S.C. § 924(c)(4); U.S.S.G. § 1B1.1, comment.

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(n.1(C)). Noting that neither provision mentions "the word

'carry,'" Garay does admit that one can "carry a firearm and also

brandish it at the same time," provided he "make[s] it known to

the victim or witness that he . . . is in possession of a weapon

for the purpose of intimidation." He just thinks the facts here

do not meet either the statutory or the guideline definition.

The problem for Garay is that the unobjected-to facts

in the PSR reveal that he "entered" a "vehicle" during the

carjacking "and sat on the passenger's seat while carrying a black

shotgun" — facts we can and do take as true. See, e.g., United

States v. O'Brien, 870 F.3d 11, 19 (1st Cir. 2017). And he fails

to cite any caselaw — and we have found none — holding that such

conduct does not amount to "display[ing] all or part of the" gun

for statutory or guideline purposes. That spells trouble for

Garay: because "plain error" is "an indisputable error . . .,

given controlling precedent," his challenge here necessarily comes

up short. See United States v. Morosco, 822 F.3d 1, 21 (1st Cir.

2016) (quotation marks omitted); see also Cheshire Med. Ctr. v.

W.R. Grace & Co., 49 F.3d 26, 31 (1st Cir. 1995) (finding no plain

error because, among other reasons, "no decision cited to us, and

none of which we are aware," showed the obviousness of the alleged

error).

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 As for Garay's argument that the judge relied on facts

not in the record, nothing he says comes close to establishing

plain error. In the section of his brief dealing with the

brandishing issue, Garay first says the judge, in discussing all

the relevant circumstances surrounding the crime's commission,

"repeatedly" mentioned Minor 1's use of a silver handgun without

stating the gun "was a toy" — Garay suggests the judge would have

made a better sentencing decision absent that "oversight."9 But

devastating to Garay's claim, the judge signaled no signs of

confusion about the gun's status — the judge relied on the PSR, a

document that called the handgun a "[t]oy," and the prosecutor

made sure the judge knew that fact at the end of the sentencing

hearing. Garay also complains how the judge mentioned the threat

to the male victim's life, a "fact," he writes, that appears "only

. . . in the 'Offense Conduct' section of the PSR," not in the

plea agreement or anywhere else — Garay again believes the judge

would have gone easier on him absent the threat stuff. But because

Garay did not object to the facts in the PSR, the judge "could

treat the [threat] fact as true for sentencing purposes," see

United States v. Ocasio–Cancel, 727 F.3d 85, 92 (1st Cir. 2013) —

9 Garay does not say the shotgun was fake.
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making this not the stuff of plain error (or error of any kind,

actually).

Local-Crime-Rate Issue

After spending a couple of pages questioning whether

lengthy sentences actually deter persons from committing crimes,

Garay ends up arguing that his sentence is also procedurally

unreasonable because (to his mind) the judge placed too much

emphasis on the prevalence of gun violence in Puerto Rico and not

enough emphasis on his individual characteristics. We see it

differently.

Yes, as Garay argues, the judge did discuss community-

based factors, like the pervasiveness of gun-related crimes in

Puerto Rico. But the judge tied his discussion to the need for

deterrence — a legitimate sentencing goal, no ifs, ands, or buts

about that. See, e.g., United States v. Romero–Galindez, 782 F.3d

63, 73 (1st Cir. 2015); United States v. Flores–Machicote, 706

F.3d 16, 23 (1st Cir. 2013). True, as Garay also notes, a judge

can reversibly err by "focus[ing] too much on the community and

too little on the individual." Flores–Machicote, 706 F.3d at 24.

But nothing like that happened here.

Our review of the entire record (encompassing the

judge's original sentencing analysis, which he incorporated by

reference at resentencing) convinces us that the judge sentenced

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Garay after considering the totality of the circumstances, with

community-based concerns being just one part of the decisional

calculus. At the original sentencing, for example, the judge

touched on "Garay's characteristics and history (his youth, drug

addiction, limited intellectual capacity, bouts with depression,

etc.), the seriousness of the offense (noting [how] an accomplice

of Garay had sexually assaulted one of the carjacked victims in

Garay's presence)," as well as "the need to deter criminal conduct,

protect the public, promote respect for the law, and deliver just

punishment." See Garay-Sierra, 832 F.3d at 66. And at the

resentencing, the judge discussed again just how serious Garay's

crime was, in addition to discussing the need for deterrence. Our

take then is that the judge acted quite properly under prevailing

law. See United States v. Zapata-Vázquez, 778 F.3d 21, 23-24 (1st

Cir. 2015) (finding no procedural error where the sentencer

"underscored community characteristics, but not at the expense of

also weighing the specific circumstances of [defendant's] case").

The bottom line is that we detect no error here, plain or

otherwise.10

10
In a different part of his brief, Garay suggests in a single
sentence that the judge "focused" only "on one [sentencing] factor,
to provide adequate general deterrence." But what we just wrote
undercuts that claim. Hence we still see no error, let alone a
plain one. See generally Garay-Sierra, 832 F.3d at 68 (noting
that while "sentencers must consider the relevant § 3553(a)
factors[,] . . . they need not give each factor equal billing"
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 Sentencing-Disparity Issue

We come then to the final facet of Garay's procedural-

reasonableness claim, which, like the others, is not a winner for

him.

After comparing sentences imposed by federal judges in

Puerto Rico with sentences imposed by their colleagues across the

country, Garay implies that his sentence implicates a national

sentencing disparity. As we mentioned in a footnote many pages

ago, § 3553(a)(6) tells courts "to avoid unwarranted sentence

disparities among defendants with similar records who have been

found guilty of similar conduct" — a provision, our caselaw says,

that is "aim[ed] primarily at the minimization of disparities among

defendants nationally." See United States v. Martin, 520 F.3d 87,

94 (1st Cir. 2008). Garay, though, never explains how his

situation is sufficiently similar to his proposed comparators —

(quotation marks omitted)); United States v. Denson, 689 F.3d 21,
28 (1st Cir. 2012) (declaring that judges "need not mention every
§ 3553(a) factor nor intone any particular magic words," and they
"certainly . . . need not give each factor equal billing"); see
also generally United States v. Suárez–González, 760 F.3d 96, 101–
02 (1st Cir. 2014) (emphasizing that balancing the relevant
§ 3553(a) factors "is precisely the function that a sentencing
court is expected to perform"); United States v. Carrasco–De–
Jesús, 589 F.3d 22, 29 (1st Cir. 2009) (stressing that "[a]
criminal defendant is entitled to a weighing" of pertinent factors,
"not to a particular result").
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proving yet again that he cannot succeed on plain-error review.

See Flores-Machicote, 706 F.3d at 24-25.

And that is that.

FINAL WORDS

Having worked through Garay's claims, we affirm his

sentence.

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