Not For Publication in West's Federal Reporter
Citation Limited Pursuant to 1st Cir. Loc. R. 32.3
United States Court of Appeals
For the First Circuit
No. 03-2655
UNITED STATES OF AMERICA,
Appellee,
v.
CARLOS VAZQUEZ-MOLINA, A/K/A PICOTA,
Defendant, Appellant.
ON REMAND FROM THE UNITED STATES SUPREME COURT
Before
Selya, Circuit Judge,
Coffin and Cyr, Senior Circuit Judges.
Charles F. Willson and Nevins & Nevins LLP, by appointment of
the court, on brief for appellant.
Carlos Vazquez-Molina , pro se ipso, on supplemental brief for
appellant.
H.S. Garcia, United States Attorney, Nelson Pérez Sosa and
Thomas F. Klumper, Assistant United States Attorneys, on brief for
appellee.
September 15, 2005
Per Curiam. On November 15, 2004, we affirmed the
conviction and sentence of defendant-appellant Carlos Vazquez-
Molina on a charge that he had conspired to possess a controlled
substance (namely, cocaine) with intent to distribute. See United
States v. Vazquez-Molina, 389 F.3d 54, 55 (1st Cir. 2004).
Although we subsequently granted defense counsel's motion to
withdraw, the appellant, acting pro se, nevertheless petitioned for
certiorari. While his petition was pending, the Supreme Court
decided United States v. Booker, 125 S. Ct. 738 (2005). The Court,
in a routine order, thereafter granted the petition for certiorari
pro forma, vacated our judgment, and remanded for further
consideration of the sentence in light of Booker. See Vazquez-
Molina v. United States, 125 S. Ct. 1713 (2005).
We reappointed counsel and directed the parties to submit
supplemental briefs and proffers. Having received and reviewed
those materials — the appellant has submitted both a counseled
brief and a pro se brief — we again uphold the appellant's sentence
and reinstate our earlier judgment.
We assume the reader's familiarity with our previous
opinion in this case and, accordingly, do not rehearse either the
offense conduct or the procedural history. Suffice it to say that
the appellant now argues, in substance, that his case should be
remanded for resentencing because the district court sentenced him
under the mandatory guidelines system then in effect. We agree
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that such an error occurred. The appellant, however, did not
preserve this claim of error below; thus, his asseverational array
is reviewed solely for plain error. See United States v. Guzmán,
___ F.3d ___, ___ (1st Cir. 2005) [No. 04-1888, slip op. at 9];
United States v. Antonakopoulos, 399 F.3d 68, 75 (1st Cir. 2005).
Under that rubric, the appellant must show, among other things,
some "reasonable probability" that the district court would have
imposed a more lenient sentence had it realized that the sentencing
guidelines could be treated as advisory. See Antonakopoulos, 399
F.3d at 75.
In this type of case, we are not "overly demanding as to
proof of probability." United States v. Heldeman, 402 F.3d 220,
224 (1st Cir. 2005). Still, an appellant must offer something that
has persuasive force. See id. (requiring, at a bare minimum, a
"reasonable indication that the district judge might well have
reached a different result under advisory guidelines").
In an effort to satisfy this requirement, the appellant
argues that the sentencing court gave insufficient weight to his
personal history, characteristics, and circumstances, see 18 U.S.C.
§ 3553(a)(1) (emphasizing, as sentencing factors, "the history and
characteristics of the defendant"), and would lean more heavily on
those factors the second time around. The main difficulty with
this argument is that, at the original sentencing hearing, the
appellant's counsel fully explicated these matters and vigorously
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attempted to exploit them. The attorney noted, among other things,
that the appellant was on medication and receiving psychiatric
treatment; that he had attempted suicide on four separate
occasions; that he was suffering from a depressive disorder; that
his wife had divorced him; and that he had lost custody of his
children.
The district court mulled this plea, see Vazquez-Molina,
389 F.3d at 59-60 (rejecting claim that sentencing court did not
duly consider section 3553(a)(1) factors), but was obviously
unimpressed. It said nothing to indicate that it thought those
considerations deserved substantial weight. To the contrary, the
court, faced with a guideline sentencing range (GSR) of 121-151
months, chose to sentence the appellant at the midpoint of the
range (136 months). The court did not make this choice casually;
it reasoned that "[s]ince the defendant is [a] second offender, a
sentence in the middle of the guideline range will serve the
objectives of punishment and deterren[ce]."
The fact that the district court, mindful of essentially
the same arguments that the appellant presses here, imposed a
sentence in the middle of the applicable GSR, rather than at its
nadir, is revealing. If, indeed, the court believed that the
appellant's personal history, offender characteristics, and
circumstances bore significantly on the level of punishment, it was
free, pre-Booker, to sentence at the bottom of the GSR. See, e.g.,
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United States v. Tardiff, 969 F.2d 1283, 1290 (1st Cir. 1992). The
court's eschewal of that option is a strong indication that,
although it found the appellant's personal history,
characteristics, and circumstances to be worth mentioning, it did
not regard them as justifying a lower sentence. See United States
v. McLean, 409 F.3d 492, 505 (1st Cir. 2005); United States v.
González-Mercado, 402 F.3d 294, 303-04 (1st Cir. 2005).
The court's uncompelled selection of a higher sentence,
coupled with the fact that it did not in any way, shape, or form
hint that it was dissatisfied either with the extent of the
sentence selected or with the sentencing options available to it,
combine to defeat the appellant's claim. On this record, the
appellant has not shown a reasonable probability that the district
court, had it realized that the guidelines were advisory, would
have imposed a more lenient sentence.
The appellant advances three additional arguments: (i)
that the district court's resort to certain upward adjustments in
calculating the GSR violated his Sixth Amendment rights; (ii) that
the court committed structural error by utilizing a mandatory
guidelines system; and (iii) that the court's boosting of his
offense level based on facts not charged in the indictment resulted
in a Fifth Amendment violation. We find none of these arguments
persuasive.
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In calculating the appellant's GSR, the sentencing court
applied two-level increases for his role in the offense, USSG
§3B1.1(c), and for his possession of a firearm during a drug-
trafficking crime, id. §2D1.1(b)(1). See Vazquez-Molina, 389 F.3d
at 56. The appellant attempts to challenge these upward
adjustments on Sixth Amendment grounds. That challenge is doomed
to failure: "[n]othing in Booker requires submission of facts to
a jury so long as the Guidelines are not mandatory."
Antonakopoulos, 399 F.3d at 80. In other words, "the Sixth
Amendment is not violated simply because a judge finds sentencing
facts under the guidelines; rather, the error is only that the
judge did so pursuant to a mandatory guidelines system." United
States v. Martins, 413 F.3d 139, 152 (1st Cir. 2005).
The appellant's claim of structural error is hopeless.
Structural errors are those that "undermine the fairness of
criminal proceedings as a whole" and, thus, must "be corrected
regardless of an individualized showing of prejudice to the
defendant." Antonakopoulos, 399 F.3d at 80 n.11. A Booker error
is not a structural error. See United States v. Villafane-Jimenez,
410 F.3d 74, 86 n.15 (1st Cir. 2005) (per curiam); Antonakopoulos,
399 F.3d at 80 n.11.
Finally, we turn to the appellant's Fifth Amendment
argument. The merits of that argument are dubious, but we decline
to address them for two reasons. First, the Supreme Court limited
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the scope of its remand order to the appellant's Booker challenge.
See Vazquez-Molina, 125 S. Ct. at 1713. In the absence of
extraordinary circumstances — and none are present here — we are
bound to adhere to the dimensions of that order. See Kotler v. Am.
Tobacco Co., 981 F.2d 7, 13 (1st Cir. 1992) (deciding that, in the
absence of exceptional circumstances, an appellate court is limited
in its inquiry to matters within the scope of a remand from the
Supreme Court); see also United States v. Estevez, ___ F.3d ___,
___ (1st Cir. 2005) [No. 03-1496, slip op. at 8-9] (applying the
rule in Kotler to a Booker remand). Second, the appellant
presented this argument only in skeletal form. Since he failed to
develop the argument in his brief, he is deemed to have abandoned
it. See United States v. Zannino, 895 F.2d 1, 17 (1st Cir. 1990).
We need go no further. Because the appellant has failed
to show that there is any likelihood that the district court, were
it operating under an advisory guidelines system, would have
imposed a milder sentence, we again affirm the sentence and direct
that our earlier judgment be reinstated.
So Ordered.
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