Not for Publication in West's Federal Reporter
United States Court of Appeals
For the First Circuit
No. 17-1689
UNITED STATES OF AMERICA,
Appellee,
v.
GOODWIN VARGAS-GONZALEZ, a/k/a Gou,
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,
Kayatta and Barron, Circuit Judges.
John E. Mudd and Law Offices of John E. Mudd on brief for
appellant.
Francisco A. Besosa-Martínez, Assistant United States
Attorney, Rosa Emilia Rodríguez-Vélez, United States Attorney, and
Mariana E. Bauzá-Almonte, Assistant United States Attorney, Chief,
Appellate Division, on brief for appellee.
April 19, 2019
KAYATTA, Circuit Judge. Goodwin Vargas-Gonzalez
("Vargas") pled guilty to one count of conspiracy to possess with
intent to distribute controlled substances, in violation of
21 U.S.C. §§ 841(a)(1), 846, and 860. Vargas was sentenced to 168
months' imprisonment, followed by a ten-year term of supervised
release. Vargas challenges the reasonableness of his sentence.
For the following reasons, we affirm.
I.
Beginning at the latest in 2009 and up until March 2016,
Vargas conspired to possess with intent to distribute cocaine,
cocaine base, heroin, and marijuana in Ponce, Puerto Rico, within
one thousand feet of the Santiago Iglesias Public Housing Project
(a housing facility owned by a public housing authority), in
violation of 21 U.S.C. §§ 841(a)(1), 846, 860.1 During the
conspiracy, Vargas was one of the leaders of a drug-trafficking
organization. Members of the organization employed violence,
participating in shootouts and a drive-by murder.
As one of the organization's leaders, Vargas supervised
the affairs of its drug distribution points, runners, and street
sellers, and collected rent from the proceeds of drug points. He
1 Because Vargas pled guilty, "we draw our account from the
plea agreement, the undisputed portions of the pre-sentence
investigation report . . . , and the transcripts of the change of
plea and sentencing hearings." United States v. Montañez-
Quiñones, 911 F.3d 59, 61 (1st Cir. 2018), cert. denied, No. 18-
7896, 2019 WL 635196 (U.S. Mar. 25, 2019).
- 2 -
also possessed firearms and allowed other conspiracy members to
possess firearms to further the conspiracy's objectives. Vargas
acknowledged that during the span of the conspiracy, he possessed
with intent to distribute at least fifteen kilograms but less than
fifty kilograms of cocaine.
On March 3, 2016, Vargas and thirty-nine co-conspirators
were indicted by a federal grand jury in the District of Puerto
Rico. Vargas was charged with six counts: (1) conspiracy to
possess with intent to distribute controlled substances;
(2)-(5) aiding and abetting in the possession with intent to
distribute heroin, cocaine, cocaine base, and marijuana; and
(6) conspiracy to possess firearms in furtherance of a drug-
trafficking crime. On October 6, 2016, Vargas and the government
entered into a plea agreement whereby Vargas pled guilty to one
count of conspiracy to possess with intent to distribute controlled
substances.
As part of the plea agreement, the parties submitted
advisory Sentencing Guidelines calculations, recommending that
Vargas's Total Offense Level be set at thirty-four. The agreement
also contained the following sentencing recommendation:
After due consideration of the relevant factors
enumerated in 18 U.S.C. § 3553(a), the parties reserve
the right to recommend a sentence within a range of 151-
168 months of imprisonment if CHC I for a total offense
level of 34 when combined with defendant's criminal
history category as determined by the Court. If
defendant is CHC II or higher, the parties agree to
- 3 -
recommend a sentence at the lower end of the applicable
guideline range for a total offense level of 34 when
combined with defendant's criminal history category as
determined by the Court. The parties agree that any
recommendation for a term of imprisonment below the
above stipulated will be a material breach of the plea
agreement.
The presentence investigation report ("PSR") largely
tracked the parties' agreed upon advisory Guidelines calculations,
with one caveat: Instead of suggesting a 2-level enhancement for
Vargas's leadership role in the offense, the PSR recommended a 3-
level enhancement. On Vargas's objection, the district court
stated that it would not accept the higher-level enhancement
recommendation.
At sentencing, before hearing from the government and
before explaining the basis for the sentence, the district court
referred to the shootouts and the drive-by murder connected to the
drug-trafficking organization, stating that it hoped Vargas would
change his behavior after being released from prison.
The government and Vargas both requested a 151-month
sentence. The district court, however, sentenced Vargas to 168
months' imprisonment. This sentence was at the middle of the
Guidelines range, which was 151-188 months based on a Total Offense
Level of 34 and a Criminal History Category of I. Citing the
section 3553 factors, the district court noted the following:
(1) Vargas was thirty-six years old, with two
dependents, and had completed a GED;
- 4 -
(2) Vargas had been unemployed for at least eight months
prior to his arrest, had previously been a part-time
assembly technician at a pharmaceutical business making
minimum wage, and had worked in construction as well;
(3) Vargas was in good physical and mental health, but
had disclosed an "emotional situation" years prior
related to marital problems for which he did not undergo
any medical or mental health treatment;
(4) Vargas used marijuana sporadically throughout his
adult life and had tried non-prescribed Percocet on one
occasion;
(5) Vargas submitted to a urinalysis five days after
being indicted which yielded negative results;
(6) Vargas had a prior adjudication for a weapons-
related misdemeanor violation, which was considered
relevant conduct;
(7) "[R]elevant and significant [was] the seriousness
of the offense to which [Vargas] pled guilty and the
actions in which the organization of which he was one of
three leaders . . . , and the dealings and manners and
objectives of the conspiracy, along with the large
number of members that were involved"; and
(8) Vargas stipulated to: acting as one of the leaders
of the drug-trafficking organization; collecting rent
from the proceeds of drug distribution points; having
supervisory authority over the affairs of drug points,
runners, and street sellers of the organization; and
possessing firearms and allowing other members of the
conspiracy to possess those weapons to further the
objectives of the conspiracy.
The district court stated that it considered "all of
those factors" listed above, putting particular emphasis on
Vargas's leadership role "and the significance of that role and
the overall actions of the drug trafficking organization."
- 5 -
Before the sentencing hearing concluded, Vargas's
counsel asked the district court to reconsider the sentence,
referencing the court's prior comments on the shootouts and drive-
by murder. The court responded that it did "not count[] anything
regarding murders" and that it "placed that as an example of the
sad situation in which the existence of rival gangs that engage in
shootings sometimes have sad consequences for innocent
bystanders." When pressed, the district court stated:
I think that I have made reference to what I clearly
considered in sentencing the defendant within the
guidelines. But if I considered any specific act of
violence or murder I would have gone over the guidelines.
Actually I am not considering that type of situation.
The government here mentioned three different leaders
and she said, the government said that and what I limited
my findings were and I read precisely in the stipulated
Version of Facts that appears in the plea agreement when
he stipulated to everything that I considered in
imposing the sentence and which I read on the record.
Reconsideration denied.
This appeal followed.
II.
Vargas takes issue with his sentence.2 Specifically, he
argues that the sentence is unreasonable because: (1) the district
court did not sufficiently discuss the section 3553(a) factors;
2 Though Vargas's plea agreement contains an appellate waiver
that Vargas argues is inapplicable, "[w]e have not . . . explored
that terrain here" because the government does not argue that
Vargas's appeal is barred by the waiver and has therefore "waived
any application of the appeal waiver." United States v. Caramadre,
807 F.3d 359, 377 n.9 (1st Cir. 2015).
- 6 -
(2) the court's judgment was influenced by activities connected to
the drug-trafficking organization with which Vargas himself had no
connection; and (3) the court used Vargas's organizational
leadership and use of firearms and drugs to "further punish
[Vargas] by sentencing [him] to the very highest level when the
recommendation at sentencing was 151-months."3
We begin first with an analysis of the procedural
reasonableness of the sentence imposed. See United States v.
Owens, 917 F.3d 26, 41 (1st Cir. 2019) ("First, we ensure the
district court did not commit any procedural errors, such as
'failing to consider the section 3553(a) factors, selecting a
sentence based on clearly erroneous facts, or failing to adequately
explain the chosen sentence.'" (quoting United States v.
Gierbolini-Rivera, 900 F.3d 7, 12 (1st Cir. 2018))). A sentencing
court certainly has a duty to consider the section 3553(a) factors,
but it "need not do so mechanically," United States v. Cortés-
Medina, 819 F.3d 566, 571 (1st Cir. 2016) (quoting United States
3 Though Vargas does not characterize his arguments as such,
the government asserts that we should treat them as challenges to
the procedural reasonableness of the district court's sentence.
Out of an abundance of caution, we will review both the procedural
and substantive reasonableness of the district court's sentence.
To the extent that the proper standard of review for unpreserved
substantive reasonableness claims "remains an open question in our
circuit," United States v. Cruz-Olavarria, No. 17-1761, 2019 WL
1375035, at *3 n.5 (1st Cir. Mar. 27, 2019), we note that all of
Vargas's challenges -- procedural and substantive -- fail even
under review for abuse of discretion.
- 7 -
v. Clogston, 662 F.3d 588, 592 (1st Cir. 2011)), nor must it "walk,
line by line, through [those] factors," id. (citing United States
v. Dixon, 449 F.3d 194, 205 (1st Cir. 2006). In that vein, this
court has "warned against 'read[ing] too much into a district
court's failure to respond explicitly to particular sentencing
arguments.'" Id. (quoting Clogston, 662 F.3d at 592 (alteration
in original)).
The district court began by generally referring to the
section 3553(a) factors. It then considered Vargas's age,
dependents, education, employment, physical and mental health,
drug use, and criminal history. The court also took into account
the nature and circumstances of the offense, discussing the size
of the conspiracy, Vargas's leadership role, the conspiracy's drug
distribution objectives, and the use of firearms as a means of
accomplishing those objectives. We easily find the court's
explanation and discussion of the section 3553(a) factors
sufficient, particularly given that the sentence was within the
Guidelines range. See Clogston, 662 F.3d at 592 ("[S]uch a
sentence requires less explanation than one that varies from the
[Guidelines range]."). That Vargas may wish that the district
court had weighed the section 3553(a) factors differently is not
enough to warrant vacating his sentence; the balancing of
sentencing factors "is precisely the function that a sentencing
court is expected to perform." United States v. Ledée, 772 F.3d
- 8 -
21, 41 (1st Cir. 2014) (quoting United States v. Suárez-González,
760 F.3d 96, 102 (1st Cir. 2014)); see also Clogston, 662 F.3d at
593 ("[T]he weighting of [the section 3553(a)] factors is largely
within the court's informed discretion.").
Vargas's claim that the district court improperly relied
on the conspiracy's connection to shootouts and the drive-by murder
is belied by the record. When asked whether it had factored in
these violent events, the court responded that it did "not count[]
anything regarding murders" and that it referenced them "as an
example of the sad situation in which the existence of rival gangs
that engage in shootings sometimes have sad consequences for
innocent bystanders." The district court repeated itself when
Vargas's counsel asked again for reconsideration of the sentence,
saying that it did not consider those acts of violence and that it
"limited [its] findings" when imposing the sentence. Vargas
provides no persuasive basis for us to discredit the district
court's statements. The court referred to the shootouts and drive-
by murder before it imposed and explained Vargas's sentence and
made no reference to those acts when it identified and considered
the section 3553(a) factors. On this record, we need not decide
whether the district court had a sufficient basis to attribute
those events to Vargas.
To the extent that Vargas challenges the sentence's
substantive reasonableness, he again engages in a losing battle.
- 9 -
This court will "find a sentence substantively reasonable 'so long
as the sentencing court has provided a plausible sentencing
rationale and reached a defensible result.'" Owens, 917 F.3d at
41 (internal quotations omitted) (quoting Gierbolini-Rivera, 900
F.3d at 12). And because the district court sentenced Vargas
within the applicable Guidelines range, the sentence is entitled
to a "presumption of reasonableness." United States v. Ortíz-
Mercado, No. 17-1383, 2019 WL 1416620, at *3 (1st Cir. Mar. 29,
2019).
Vargas has not sufficiently rebutted this presumption.
Though he states that the district court "further punish[ed] him
by sentencing [him] to the very highest level when the
recommendation at sentencing was 151-months," the district court
was not obligated to accept the parties' recommendations, as was
clearly acknowledged in the plea agreement. We find that the
district court's consideration of the section 3553(a) factors at
sentencing provided a "plausible" explanation for imposing
Vargas's sentence and that the court ultimately reached a
"defensible result." Owens, 917 F.3d at 41 (quoting Gierbolini-
Rivera, 900 F.3d at 12). Discerning no error, we therefore will
not "substitute [Vargas's] judgment for that of the sentencing
court." Clogston, 662 F.3d at 593.
- 10 -
III.
For the foregoing reasons, we affirm the district
court's sentence.
- 11 -