United States Court of Appeals
For the First Circuit
No. 18-1595
UNITED STATES OF AMERICA,
Appellee,
v.
CARLOS ABREU-GARCÍA, a/k/a Jorge Mejias-García, a/k/a Adalberto
Kotts-Pérez, a/k/a Adalberto Pérez,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Francisco A. Besosa, U.S. District Judge]
Before
Lynch, Thompson, and Kayatta,
Circuit Judges.
Irma R. Valldejuli on brief for appellant.
David C. Bornstein, 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.
July 31, 2019
LYNCH, Circuit Judge. This is a sentencing appeal.
After two previous deportations, Carlos Abreu-García pleaded
guilty to reentering the United States illegally as a removed
alien. 8 U.S.C. § 1326(b)(2). He was given a mid-range sentence
of forty months of imprisonment and three years of supervised
release. Abreu now challenges the procedural and substantive
reasonableness of his sentence. Finding no error, we affirm his
sentence.
I.
A. Facts
Since Abreu pleaded guilty, we draw the facts from the
plea agreement, the presentence investigation report (PSR), and
the sentencing hearing transcript. See United States v. Colón-
Rosario, 921 F.3d 306, 309 (1st Cir. 2019). Abreu was born and
raised in the Dominican Republic. In 2005, at the age of twenty-
eight, Abreu entered the United States on a tourist visa and stayed
after the visa expired. Between 2005 and 2013, Abreu lived in
Boston, Massachusetts; the Bronx, New York; and Allentown,
Pennsylvania. Abreu's wife and daughter, as well as his wife's
son from a previous relationship, live in Boston. Abreu also has
a daughter from another relationship who lives in the Bronx.
On January 1, 2014, Abreu was convicted of possession of
a controlled substance (heroin). When arrested, he had provided
the false name "Adalberto Kotts-Pérez." Abreu was sentenced to
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four years' imprisonment and five years' post-release supervision.
On August 21, 2014, an immigration judge ordered Abreu removed
from the United States, and he was removed to the Dominican
Republic on July 21, 2015.
On August 21, 2016, Abreu was apprehended by United
States Border Patrol near Miami, Florida. Abreu was then convicted
of illegally reentering the United States, 8 U.S.C. §§ 1326(a),
(b)(1), and sentenced to ten months' imprisonment and three years'
supervised release. Abreu was again deported to the Dominican
Republic on July 5, 2017.
In or about October 2017, Abreu reentered the United
States by boat, landing on an unknown beach in Puerto Rico. On
November 22, 2017, he was apprehended at the airport in San Juan,
Puerto Rico, while attempting to board a flight to New York City.
Abreu presented the officials with a false driver's license with
the name "Jorge Mejias-García." After learning that Abreu had
entered the United States illegally after two previous
deportations, the agents arrested him.
B. Procedural History
On February 27, 2018, Abreu pleaded guilty to reentering
the United States illegally as a removed alien, 8 U.S.C.
§ 1326(b)(2). In the plea agreement, the parties stipulated that
Abreu's base offense level was eight. The plea agreement
stipulated to an eight-level enhancement for a prior felony
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conviction, a four-level enhancement for a felony conviction that
is an illegal reentry offense, and a three-level reduction for
timely acceptance of responsibility, for a total offense level of
seventeen. The parties jointly recommended a sentence of thirty
months' imprisonment "irrespective of the applied sentencing
guideline range or [Abreu's] criminal history category at the time
of sentencing."
The PSR calculated a total offense level of seventeen
and a criminal history category of IV. The criminal history
category was based on a score of seven, which included two points
under U.S.S.G. § 4A1.1(d) because Abreu committed the offense
while on supervised release. The PSR stated that the guideline
sentencing range was thirty-seven to forty-six months. The maximum
term of imprisonment for the offense is twenty years, and there is
no mandatory minimum term. 8 U.S.C. § 1326(b)(2).
At the sentencing hearing, Abreu urged the district
court to accept the recommended sentence, which he acknowledged
was below the applicable guideline range, on the ground that Abreu
had reentered the country to be with his family. Abreu also argued
that it would be "unfair" if he received a longer sentence because
of the "high probability" that he would also receive a consecutive
revocation sentence for violating the conditions of his supervised
release term.
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The district court agreed with the PSR's guideline
calculation. The court stated that it "considered the other
sentencing factors" in 18 U.S.C. § 3553(a). The court specifically
noted that Abreu had twice before been deported, had entered the
country illegally, had used false identification to travel on a
commercial flight, and had entered the United States in violation
of the conditions of his supervised release. The district court
stated that it "consider[ed] a sentence at the midrange of the
guideline range to reflect the seriousness of the offense,
promote[] respect for the law, protect[] the public from further
crimes by Mr. Abreu, and address[] the issues of deterrence and
punishment." The district court sentenced Abreu to forty months'
imprisonment, followed by a supervised release term of three years.
After the court imposed the sentence, defense counsel
"request[ed] that the Court reduce [Abreu's] sentence to 30 months"
because "what led this Defendant to come to Puerto Rico" was that
"he wanted to be with his children." The district court denied
the request, and defense counsel made no further objections. Abreu
timely appealed.
II.
"In sentencing appeals, appellate review is bifurcated."
United States v. Ruiz-Huertas, 792 F.3d 223, 226 (1st Cir. 2015).
"[W]e first determine whether the sentence imposed is procedurally
reasonable and then determine whether it is substantively
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reasonable." Id. (quoting United States v. Clogston, 662 F.3d
588, 590 (1st Cir. 2011)).
A. Procedural Reasonableness
Abreu argues for the first time on appeal that the
district court abused its discretion in raising his criminal
history score by two points (for committing the instant offense
while on supervised release) on the ground that the sentencing
guidelines are "no longer mandatory but are only advisory." He
argues the district court was "not obliged" to follow U.S.S.G.
§ 4A1.1(d) when calculating his criminal history category. We
review unpreserved claims of procedural unreasonableness for plain
error. United States v. Arroyo-Maldonado, 791 F.3d 193, 197 (1st
Cir. 2015).
There was no error, plain or otherwise. It is ordinarily
true that although the guidelines are "no longer binding, . . .
[j]udges still must start out by calculating the proper Guidelines
range" before determining whether to "differ from the Sentencing
Commission's recommendations." United States v. Rodriguez, 630
F.3d 39, 41 (1st Cir. 2010). "The reason for this is simple
. . . . [S]tarting with the Guidelines' framework -- which gives
judges an idea of the sentences imposed on equivalent offenders
elsewhere -- helps promote uniformity and fairness." Id.
(citations omitted). Here, Abreu does not dispute that he
committed the instant offense while on supervised release.
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U.S.S.G. § 4A1.1(d) states: "Add 2 points if the defendant
committed the instant offense while under any criminal justice
sentence, including probation, parole, supervised release,
imprisonment, work release, or escape status." The district court
correctly treated the properly calculated guideline sentencing
range as the starting point in determining Abreu's sentence.1
To the extent Abreu is arguing that the district court
believed it lacked discretion to vary from the guidelines because
it erroneously believed they are still mandatory, there is no
1 Abreu also states in passing that the district court's
decision to raise his criminal history score two points for
committing the offense while on supervised release constitutes
"double counting," because Abreu was also likely to receive a
consecutive revocation sentence for violating the terms of his
supervised release. He has not developed this argument, so it is
waived. United States v. Zannino, 895 F.2d 1, 17 (1st Cir. 1990).
Moreover, "[d]ouble counting concerns usually involve the use of
a single factor more than once to calculate the Guidelines
sentencing range," which is not what happened here. United States
v. Maisonet-González, 785 F.3d 757, 764 (1st Cir. 2015); cf. United
States v. Gondek, 65 F.3d 1, 4 (1st Cir. 1995), superseded on other
grounds as recognized in United States v. Crudup, 375 F.3d 5 (1st
Cir. 2004) (describing a similar argument as "a form of double
counting" and rejecting it because "forms of double counting are
not unusual under the guidelines and are permissible where
intended, as we think is the case here" (citation omitted)). And,
even assuming that this is double counting, it is not impermissible
double counting. See United States v. Zapata, 1 F.3d 46, 47 (1st
Cir. 1993) ("In the sentencing context, double counting is a
phenomenon that is less sinister than the name implies. The
practice is often perfectly proper."); see also Gondek, 65 F.3d at
4. "[W]hen neither an explicit prohibition against double counting
nor a compelling basis for implying such a prohibition exists,
courts should be reluctant to read in a prohibition where there is
none." United States v. Brake, 904 F.3d 97, 100 (1st Cir.), cert.
denied, 139 S. Ct. 577 (2018) (quoting United States v. Chiaradio,
684 F.3d 265, 283 (1st Cir. 2012)).
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support for that in the record. See Kimbrough v. United States,
552 U.S. 85, 108-10 (2007). The fact that the district court chose
not to vary from the guidelines does not show that it believed it
could not vary from the guidelines. See United States v. Vega-
Salgado, 769 F.3d 100, 104 (1st Cir. 2014) ("That the guidelines
are advisory is, by now, a basic tenet of federal criminal
sentencing. We presume that federal judges know the law, and a
reviewing court should not lightly assume that a lower court is
either ignorant of or has forgotten an abecedarian principle.").
Abreu also argues that the district court "rejected the
parties['] recommendation without explanation." While "a
sentencing court has a duty to explain its choice of a particular
sentence," there is "no corollary duty to explain why it eschewed
other suggested sentences." Id. at 103-04. The district court
did explain the basis for the sentence, stating, among other
things, that Abreu had twice before been deported, had attempted
to use false identification, and had entered the United States in
violation of the conditions of his supervised release. No more
was necessary.
B. Substantive Reasonableness
Abreu argues that "the District Court did not give any
weight" to the fact that Abreu reentered the United States to see
his family and that Abreu was likely to receive a consecutive
revocation sentence for violating the conditions of his supervised
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release. We interpret this as a challenge to the substantive
reasonableness of his sentence and assume, favorably to Abreu,
that abuse-of-discretion review applies. See United States v.
Rodríguez-Reyes, 925 F.3d 558, 569 (1st Cir. 2019).
The district court's decision "not to attach to certain
of the mitigating factors the significance that the appellant
thinks [he] deserved does not make the sentence unreasonable."
Clogston, 662 F.3d at 593. A sentence is substantively reasonable
when, as here, the sentencing court gave 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)).
* * *
Affirmed.
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