United States Court of Appeals
For the First Circuit
No. 15-2262
UNITED STATES OF AMERICA,
Appellee,
v.
OSCAR DELGADO-SÁNCHEZ,
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,
Torruella and Kayatta, Circuit Judges.
Thomas J. O'Connor, Jr. for appellant.
Mainon A. Schwartz, Assistant United States Attorney, with
whom Rosa Emilia Rodríguez-Vélez, United States Attorney, and
Mariana E. Bauzá-Almonte, Assistant United States Attorney, Chief,
Appellate Division, were on brief, for appellee.
February 17, 2017
KAYATTA, Circuit Judge. Oscar Delgado-Sánchez
("Delgado") pled guilty to one count of being a prohibited person
in possession of a firearm in violation of 18 U.S.C. § 922(g)(1).
Delgado now appeals his upwardly variant sentence of seventy-two
months in prison. He contends that his guidelines sentencing range
was miscalculated because the district court erroneously found at
least one of his prior convictions to be for a "crime of violence."
He also takes issue with what he claims were procedural missteps
at sentencing, and he argues that the district court based his
above-guidelines sentence on factors that should not have been
considered. For the following reasons, we disagree and affirm
Delgado's sentence in full.
I. Background
In March 2015, police obtained a search warrant for
Delgado's residence after they observed him carrying an AK-47
outside of his home. When officers arrived to execute the search,
Delgado allowed them inside, confessed that he had the firearm,
and told the officers where they could find an additional magazine
and ammunition. The police arrested Delgado and seized the weapon,
which was capable of automatic fire and which was loaded with one
magazine containing twenty-nine rounds of ammunition. They also
seized one more magazine and sixteen additional rounds of
ammunition. Delgado pled guilty to being a prohibited person in
possession of a firearm in violation of 18 U.S.C. § 922(g)(1).
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The U.S. Probation Office's presentence investigation
report assigned Delgado a criminal history score of seven, the sum
of the criminal history points attributable to three prior
convictions. The first conviction, worth three criminal history
points under U.S.S.G. § 4A1.1(a), arose out of a 2008 arrest in
San Lorenzo, Puerto Rico, for violating Article 404 of the Puerto
Rico Controlled Substances Law, P.R. Laws Ann. tit. 24, § 2404.
The second conviction, also worth three criminal history points
under U.S.S.G. § 4A1.1(a), arose out of Delgado's 2009 arrest in
Las Piedras, Puerto Rico. In that case, Delgado pled guilty to
one count of violating Article 198 of the Puerto Rico Penal Code
(Robbery) ("Article 198"), P.R. Laws Ann. tit. 33, § 4826, and
three counts of violating Article 5.15 of the Puerto Rico Weapons
Law (Discharging or Pointing Firearms) ("Article 5.15"), P.R. Laws
Ann. tit. 25, § 458n(a). The presentence report explained that
"[a]ccording to certified court documents," Delgado and an
accomplice "through the use of violence and intimidation" and
"using a dangerous weapon . . . robbed $60.00 in cash . . . in the
immediate presence of [a person]," and Delgado "aimed [a] firearm
at [the person] and announced the robbery."
Delgado's third conviction, worth one criminal history
point pursuant to U.S.S.G. § 4A1.1(e), followed a guilty plea to
three counts of robbery under Article 198 and three counts of
unlawfully discharging or pointing a firearm in violation of
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Article 5.15. According to the presentence report, "certified
court documents" revealed that these offenses arose out of two
separate robberies and a shooting in Yabucoa on March 24, 2009.
First, Delgado "robbed a cash register, $413[] in cash and between
12 and 15 cigarette boxes from [a store] through the use of
violence and/or intimidation in the immediate presence of [a
person]. He also robbed $177 in cash belonging to [another person]
through the use of violence and/or intimidation." Second, at
4:15 P.M., Delgado, "in possession of a black 9mm firearm," robbed
a business of all of the proceeds from the day's sales and some
horse products totaling about $800. During the robbery, Delgado
asked an individual victim where he could find the safe and
instructed that individual to "hit the safe in order to open it
and give me all the money." Finally, "[a]ccording to certified
court documents," Delgado "shot 4 to 5 rounds into the air from a
black 9mm firearm" at 5:00 P.M.
The presentence report also alerted the parties and the
court that probation was aware that Delgado had been arrested on
at least four other occasions.
First, the report indicated that Delgado had been
arrested in San Lorenzo in July 2008 and charged with two counts
of violating the Puerto Rico Weapons Law for possessing and
carrying without a license a loaded weapon with an obliterated
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serial number. These charges, probation reported, were dismissed
in a preliminary hearing upon a finding of no probable cause.
Second, the report stated that Delgado was arrested in
Yabucoa in November 2008 on grounds that (1) he committed two
violations of the Puerto Rico Controlled Substances Law, and (2) he
possessed two loaded firearms, one of which he used to rob a bar
of cash and goods "through the use of violence and intimidation"
in violation of the robbery statute and the Weapons Law. The
Controlled Substances Law charges were dismissed for lack of
probable cause, and, because Delgado was detained for more than
thirty days without a preliminary hearing, the robbery and firearms
charges were dismissed pursuant to Rule 64(n)(5) of the Puerto
Rico Rules of Criminal Procedure, P.R. Laws Ann. tit. 34, App. II,
§ 64(n)(5).
Third, the report detailed another November 2008 arrest
in Yabucoa on charges that Delgado violated two provisions of the
Weapons Law by carrying two loaded firearms without a license, one
of which had an obliterated serial number. These charges were
dismissed under the Commonwealth's Rule 64(n)(4), id. § 64(n)(4),
because Delgado was not tried within 120 days after his
arraignment.
Fourth and finally, the report alerted the parties that
probation was aware that Delgado was facing pending charges
stemming from a December 2013 arrest. In that case, Delgado was
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charged with discharging or pointing a firearm in violation of
Article 5.15 and unlicensed carrying/using of a firearm in
violation of Article 5.04 of the Weapons Law, along with Aggravated
Robbery in violation of Article 190(e) of the Puerto Rico Penal
Code. The report noted that Delgado's trial on these charges was
scheduled for early September 2015.
In a separate section of the presentence report,
probation concluded that Delgado should be subject to U.S.S.G.
§ 2K2.1(a)(3), which provides that when an individual is convicted
of an offense involving certain types of firearm and was previously
convicted of a felony "crime of violence," his base offense level
is twenty-two. Probation did not specify which of Delgado's
previous convictions served as the basis for the "crime of
violence" designation. Subtracting three levels based on
Delgado's demonstrated acceptance of responsibility, probation
proposed that Delgado's total offense level should be set at
nineteen.
In the nearly two months that passed between the date he
was served with the presentence report and the date he appeared
for sentencing, Delgado lodged no objections to the presentence
report. Rather, he submitted a sentencing memorandum limited to
urging the court to engage in a downward variance on account of a
chronic medical condition (the nature of which is not germane to
this appeal). When Delgado appeared before the district court for
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sentencing on September 24, 2015, his attorney informed the court
that he had nothing to say on Delgado's behalf "other than what I
have expressed in my sentencing memorandum." Delgado, too,
declined the court's offer to speak on the record.
The district court determined that the presentence
report's calculations were correct: Delgado's base offense level
was twenty-two "because Mr. Delgado has been convicted of
possessing a firearm which is described in Title 26, United States
Code, Section 5845(a) after having been convicted for a crime of
violence, robbery and brandishing a firearm during the robbery."
With adjustments for acceptance of responsibility, his total
offense level was nineteen. And he was in Criminal History
Category IV with a criminal history score of eight--the seven
points described above plus one additional point that Delgado
earned when a jury convicted him at some point in the intervening
months on the charges arising from his December 2013 arrest. The
advisory guidelines, the court found, thus recommended a sentence
of forty-six to fifty-seven months' imprisonment, plus a fine and
a term of supervised release.
The district court then proceeded to consider the
sentencing factors in 18 U.S.C. § 3553(a). The court took note of
Delgado's age, education, employment, and history of drug
addiction. It also observed that Delgado had numerous convictions
and dismissed charges for firearms offenses, and it expressed
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concern with Delgado's statement to probation that he committed
robberies because he "liked to." Finding that, in light of these
facts and the Commonwealth's serious gun violence problem, a
sentence within the proposed guidelines range of forty-six to
fifty-seven months would not achieve the goals of punishment, the
district court sentenced Delgado to seventy-two months'
imprisonment followed by a three-year term of supervised release.
Delgado timely appealed.
II. Discussion
A. "Crime of Violence"
Delgado's lead argument is that the district court erred
in calculating his guidelines sentencing range because it
improperly classified one of his prior convictions as a conviction
for a "crime of violence" under U.S.S.G. § 2K2.1(a)(3). That
provision advises courts sentencing defendants convicted of
certain firearms offenses to assign a base offense level of twenty-
two if "the defendant committed any part of the instant offense
subsequent to sustaining one felony conviction of . . . a crime of
violence." A felony "crime of violence" is "any offense under
federal or state law, punishable by imprisonment for a term
exceeding one year, that . . . has as an element the use, attempted
use, or threatened use of physical force against the person of
another." U.S.S.G. § 4B1.2(a)(1); see also id. § 2K2.1 cmt. n.1
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(adopting definition of "crime of violence" in § 4B1.2).1 Physical
force is "violent force--that is, force capable of causing physical
pain or injury to another person." United States v. Martinez, 762
F.3d 127, 133 (1st Cir. 2014) (quoting Johnson v. United States,
559 U.S. 133, 140 (2010)). If a criminal defendant has no prior
convictions, or none of his prior convictions is for a crime of
violence, § 2K2.1(a)(3) cannot be applied to set the defendant's
base offense level.
Delgado did not raise this argument at sentencing.
Indeed, he raised no objections at all at sentencing. For this
reason, we are faced at the outset with a dispute concerning
whether, and by what standard, we may review Delgado's arguments
on appeal.
Ordinarily, a party who fails to lodge an objection or
raise an argument below is deemed to have forfeited the argument
and faces plain error review. See, e.g., United States v. Sánchez-
Berríos, 424 F.3d 65, 74 (1st Cir. 2005). But where a party
1 The guidelines also provide an alternative definition of a
felony "crime of violence" as "any offense under federal or state
law, punishable by imprisonment for a term exceeding one year,
that . . . is burglary of a dwelling, arson, or extortion, involves
use of explosives, or otherwise involves conduct that presents a
serious potential risk of physical injury to another." U.S.S.G.
§ 4B1.2(a)(2) (2015). This case does not involve burglary of a
dwelling, arson, extortion, or the use of explosives, and the
government has waived any argument that one or more of Delgado's
past convictions is for an offense "that presents a serious
potential risk of physical injury to another."
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"intentional[ly] relinquish[es] or abandon[s] . . . a known right"
and that right is waivable, he may not revive his waived argument
on appeal at all. United States v. Olano, 507 U.S. 725, 732–34
(1993) (quoting Johnson v. Zerbst, 304 U.S. 458, 464 (1938)). We
treat differently waived and forfeited claims because "waiver
implies an intention to forgo a known right, whereas forfeiture
implies something less deliberate--say, oversight, inadvertence,
or neglect in asserting a potential right." United States v.
Eisom, 585 F.3d 552, 556 (1st Cir. 2009). The government asks us
to deem waived and therefore not reviewable Delgado's challenge to
the presentence report's designation (and the district court's
decision to adopt it) that § 2K2.1(a)(3) applies. Delgado admits
that he failed to preserve the arguments he advances on appeal,
but nevertheless urges us to review the district court's decision
for plain error.
We have noted that "a powerful case for waiver" is
presented where a defendant "eschews a warrantable objection to a
conclusion reached in a presentence report" because doing so "lulls
both the prosecution and the sentencing court into what will prove
to be a false sense of security if he is later allowed to do an
about-face." United States v. Turbides-Leonardo, 468 F.3d 34, 38
(1st Cir. 2006). This argument carries particular weight where,
as here, "given the appellant's ready acquiescence in the
characterization of his earlier conviction . . . few prosecutors
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would have felt a need to bring in the original record of
conviction and few judges would have felt a responsibility to probe
the point more deeply." Id. And, as the government points out,
Delgado may have had some incentive not to encourage the district
court to delve deeply into his criminal history: in light of his
having been convicted on multiple occasions of both robbery and
discharging or pointing firearms, it is possible that the district
court might have found that his record showed he had committed
more than one crime of violence and thus set his base offense level
even higher than the presentence report recommended. See U.S.S.G.
§ 2K2.1(a)(1) (setting the base offense level at twenty-six for
defendants convicted of an offense involving a firearm described
in 26 U.S.C. § 5845(a) who have been convicted of two or more
felony crimes of violence).
Still, "[w]here a defendant's claim would fail even if
reviewed for plain error, we have often declined to decide whether
the defendant's failure to raise the issue below constituted waiver
or mere forfeiture." United States v. Acevedo-Sueros, 826 F.3d
21, 24 (1st Cir. 2016) (citing United States v. Aguasvivas-
Castillo, 668 F.3d 7, 13–14 (1st Cir. 2012)); see also, e.g.,
United States v. Delgado-López, 837 F.3d 131, 135 n.2 (1st Cir.
2016); United States v. Arsenault, 833 F.3d 24, 28 & n.2 (1st Cir.
2016). Because Delgado's arguments fail under plain error review,
we decline to decide whether Delgado's failure to object to the
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presentence report constitutes a waiver. Instead, applying plain
error review, we ask whether Delgado can show "(1) that an error
occurred (2) which was clear or obvious and which not only (3)
affected [his] substantial rights, but also (4) seriously impaired
the fairness, integrity, or public reputation of the judicial
proceedings." Arsenault, 833 F.3d at 29 (alteration in original)
(quoting United States v. Ruiz-Huertas, 792 F.3d 223, 226 (1st
Cir. 2015)).
To determine whether a defendant's prior convictions
were for crimes of violence, we apply the "categorical approach"
set forth by the Supreme Court in Taylor v. United States, 495
U.S. 575, 600–02 (1990). In short, we "look to the elements of
the prior convictions as defined by the relevant statute[s]--not
to the particular facts underlying the convictions." United States
v. Castro-Vázquez, 802 F.3d 28, 35 (1st Cir. 2015) (citing Descamps
v. United States, 133 S. Ct. 2276, 2283 (2013)). If the state
(or, as in this case, the Commonwealth of Puerto Rico) defines the
crime of conviction broadly enough that it may be committed without
the "use, attempted use, or threatened use of physical force
against the person of another," U.S.S.G. § 4B1.2(a)(1), then the
conviction cannot be used to set the defendant's base offense level
under § 2K2.1(a)(3) based on it being for a "crime of violence"
under § 4B1.2(a)(1). United States v. Serrano-Mercado, 784 F.3d
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838, 842–44 (1st Cir. 2015), cert. denied, No. 16-0237, 2017 WL
160457 (Jan. 17, 2017).
If the statute under which the defendant was previously
convicted is divisible, meaning "it comprises multiple,
alternative versions of a crime not all of which qualify as a
predicate offense," courts apply a "modified" categorical
approach. Castro-Vázquez, 802 F.3d at 35; see also Mathis v.
United States, 136 S. Ct. 2243, 2249 (2016). Under this approach,
we may refer to "Shepard" documents, see Shepard v. United States,
544 U.S. 13, 17, 25–26 (2005), including "charging documents, plea
agreements, plea colloquies, jury instructions, and verdict
forms," in order "to determine which of a statute's alternative
elements formed the basis of the prior conviction." Castro-
Vázquez, 802 F.3d at 35.
The district court's explanation for applying
§ 2K2.1(a)(3) to Delgado was that he had previously been convicted
of "a crime of violence, robbery and brandishing a firearm during
the robbery." But prior to Delgado's conviction in this case, he
had never been convicted of any single offense whose elements could
be said to include both the forceful taking of property and the
brandishing of a firearm. See P.R. Laws Ann. tit. 33, § 4826
(robbery does not involve brandishing of a firearm); P.R. Laws
Ann. tit. 25, § 458n(a) (brandishing need not occur in the course
of a robbery to be unlawful discharge or pointing of a firearm).
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Delgado argues that this error in describing what conviction the
court found to be a crime of violence requires that the finding be
set aside.
We disagree. True, the district court could have been
more explicit when it identified the predicate offense that it
viewed as justifying the application of § 2K2.1(a)(3). But we
think it reasonably clear, based on the way the court described
the crime, that the court was referring to the several convictions
that arose out of Delgado's March 2009 arrest for aiming a firearm
at a person and announcing and carrying out a robbery. As a result
of that arrest, Delgado pled guilty to one count of robbery in
violation of Article 198 and three counts of discharging or
pointing a firearm in violation of Article 5.15. We encourage
district courts to identify predicate crimes of violence with care
and precision, but we do not find any error here, where the record
makes plain our task on appeal.
Our discussion begins and ends with Delgado's 2009
convictions under Article 5.15,2 which provides, in relevant part:
(a) Any person shall be found guilty of a
felony . . . who, except in cases of self
defense or defense of third parties, or
actions in the performance of official
duties or legitimate sports activities:
2 Because we find that applying U.S.S.G. § 2K2.1(a)(3) based
on Delgado's conviction under Article 5.15 was not plainly
erroneous, we decline to address whether robbery under Article 198
is a "crime of violence" justifying application of U.S.S.G.
§ 2K2.1(a)(3).
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(1) Willfully fires any weapon in a
public place or any other place
where there is any person who could
be harmed, even though he/she causes
no harm whatsoever to any person, or
(2) intentionally, although without
malice aforethought, points a
weapon towards a person, even though
he/she causes no harm whatsoever to
any person.
P.R. Laws Ann. tit. 25, § 458n(a). In his opening brief, Delgado
argued that a conviction under Article 5.15 cannot be a predicate
offense meriting application of § 2K2.1(a)(3) because it "can be
completed without the intentional use of violen[t] force on any
individual." At oral argument and on reply, Delgado expounded
this argument, claiming that Article 5.15 is an indivisible statute
that sets forth a single crime that is not categorically violent.
He also argued that whether indivisible or divisible, Article 5.15
cannot serve as a predicate offense justifying application of
§ 2K2.1(a)(3).
We are unpersuaded by Delgado's contention that Article
5.15 is indivisible. Where a statute is indivisible but lists
multiple, alternative means of satisfying an element, one or more
of which can be achieved without violence, the crime defined
therein is not categorically a "crime of violence" even if the
defendant committed it by violent means identified in the statute.
Cf. Mathis, 136 S. Ct. at 2251. A divisible statute, on the other
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hand, "list[s] elements in the alternative, and thereby define[s]
multiple crimes"; if one of those crimes is categorically violent,
it can serve as a predicate offense so long as the defendant's
conviction under the statute was for that version of the crime.
Id. at 2249. To determine whether statutory alternatives are
"elements" or "means," we look to case law interpreting the
statute, unless the "statute on its face . . . resolve[s] the
issue." See id. at 2256. When the statute and the case law do
not provide a clear answer, courts may look to other relevant
documents for the purpose of determining what elements must be
proved to secure a conviction under the statute. Id. at 2256–57.
Neither party points us to any case law interpreting
Article 5.15, but the statute's plain text and structure strongly
suggest that it is divisible, providing two alternative sets of
elements for two different crimes. The statute sets a criminal
penalty for two entirely distinct courses of conduct with entirely
distinct required mental states. The statute's structure makes
clear that a defendant is guilty of "discharging" but not
"pointing" when he willfully fires a weapon in a public place but
does not aim the weapon at anyone, and that a defendant is guilty
of "pointing" but not "discharging" when he intentionally aims a
firearm at another person but does not fire it.
The Commonwealth's pattern jury instructions for
Article 5.15 suggest the same. In the English-language translation
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Delgado has provided,3 judges are tasked with determining which
crime the government charged under the statute and describing only
that crime to the jury. The instructions then provide the judge
with a menu of options, one of which is "[d]ischarging a weapon in
a public place or in another location where a person could have
suffered harm, even if no person was harmed," and another of which
is "[i]ntentionally, even if without malice, aiming a firearm
3 The translation reads as follows:
In this case, the defendant is charged
with the crime of: [The Judge shall provide
the instruction that corresponds to the facts
charged.]
1) Discharging a weapon in a
public place or in another location
where a person could have suffered
harm, even if no person was harmed.
2) Intentionally, even if without
malice, aiming a weapon towards a
person, even if no person was
harmed.
. . . .
4) Intentionally, even if without
malice, aiming a firearm towards a
person, even if no person was
harmed.
The essential elements of this offense
are the following:
1) [Aiming] [Discharging] a
[weapon] [firearm].
2) In a public place or any other
place where a person could suffer
harm.
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towards a person, even if no person was harmed." The judge is
directed to choose whether the criminal act charged is "aiming" or
"discharging" and instruct the jury about the applicable
"essential element[]" accordingly. Delgado contends that the
instructions show the statute to be indivisible, but they do not;
rather, to the extent they lend any insight, they confirm our
reading by providing alternative versions of the crime's elements,
negating any possibility that a jury need not find unanimously
that the selected version has been proven beyond a reasonable
doubt.
Having determined the statute is divisible, we proceed
to determine whether either version of the crime provided under
Article 5.15 is categorically a "crime of violence." The elements
of the offense described in Article 5.15(a)(2) (intentionally
pointing a weapon towards a person) might comprise one. The
government argues that to point a firearm at someone
intentionally--when not done in self-defense, defense of another,
or in the performance of official duties or legitimate sports
activities--is, in all cases, to threaten the use of physical force
against that person. Delgado, in opposition, contends, first,
that Puerto Rico's decision to explicitly provide in the statute
that pointing under Article 5.15 can be committed without malice
aforethought shows that the crime can be committed unintentionally
or without the threatened use of force. He argues, second, that
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pointing is not categorically a crime of violence because a person
can be convicted under this version of the offense even where, for
instance, the victim is unaware that a gun is being pointed at
him, or is aware of the pointing but knows that the offender is
joking or the gun is not loaded. This, he argues, does not
constitute use, attempted use, or threatened use of force against
the person of another.
Delgado's first argument is easily dismissed. The
definition of a crime of violence does not include malice as an
element; intentionality suffices. See, e.g., United States v.
Tavares, 843 F.3d 1, 13 (1st Cir. 2016) (when performed with a
dangerous weapon, "'the intentional and unjustified use of force
upon the person of another, however slight'--constitutes a crime
of violence under § 4B1.2(a)(1) of the Guidelines"); United States
v. Whindleton, 797 F.3d 105, 113–16 (1st Cir. 2015) (same), cert.
dismissed, 137 S. Ct. 23 (2016), and cert. denied, 137 S. Ct. 179
(2016).
Delgado's second argument, however, is not so easily
dismissed. The challenge is how to define the phrase "threatened
use of physical force" in U.S.S.G. § 4B1.2(a)(1). One might read
the phrase narrowly to require "communicat[ing] intent to inflict
harm," see Threat, Black's Law Dictionary (10th ed. 2014)
(definition #1), in which case pointing a firearm at a person
without that person's knowledge--arguably a method of committing
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the offense described in Article 5.15(a)(2)--would not qualify.
Or, one might read the phrase as also including the creation of
some "thing that might well cause harm." Id. (definition #3). If
this broader definition of "threat" is the one we should be using
to interpret "threatened use of force" in the guidelines, a
violation of Article 5.15(a)(2) would seem to fit. It would make
no difference, for the purposes of determining whether pointing
"might well cause" the use of force against the victim, whether
the person at whom the firearm is aimed is aware of the threat
that has been created.
Ultimately, we need not definitively answer this
question. Delgado points to no precedent (nor are we aware of
any) that construes U.S.S.G. § 4B1.2(a)(1) as excluding the latter
definition of a "threatened use of physical force against the
person of another." See also United States v. Cortez-Arias, 403
F.3d 1111, 1116 (9th Cir. 2005) (observing that "'threatened use
of physical force against the person of another' must logically
include . . . acts suggesting that physical force against [a]
person may be impending").4 We therefore cannot say that the
4 The Ninth Circuit has abrogated Cortez-Arias, holding that
the predicate state-law offense at issue in that case does not
categorically constitute a crime of violence because it may be
committed recklessly. See United States v. Narvaez-Gomez, 489
F.3d 970, 976–77 & n.3 (9th Cir. 2007). This development does not
affect our analysis, which relies on Cortez-Arias only for the
narrow proposition that the district court did not plainly err in
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district court committed error that was clear or obvious. See
United States v. Vanvliet, 542 F.3d 259, 270 (1st Cir. 2008)
(finding the practice of not giving an Allen charge before a jury
retires not plainly erroneous because "[w]e have not even discussed
the desirability of this practice in our own circuit precedents");
United States v. Marcano, 525 F.3d 72, 74 (1st Cir. 2008) ("[P]lain
error cannot be found in case law absent clear and binding
precedent . . . ."); United States v. Caraballo-Rodriguez, 480
F.3d 62, 73 (1st Cir. 2007) ("[S]ince we have not yet adopted the
[statutory] construction [defendant] urges, there is no plain
error.").
We are left to decide only whether any of Delgado's
convictions under Article 5.15 was for intentionally pointing a
firearm at another person. The presentence report's findings,
which the district court adopted as its own findings of fact with
no objection from Delgado, state that Delgado pled guilty to three
counts of violating Article 5.15 and that "certified court
documents" show Delgado aimed a firearm at a person as he announced
his intent to rob her. But the presentence report fails to
identify which certified court documents it is referring to, and
it does not attach or include any so-called Shepard documents.
Whether the presentence report is describing factual conduct or
declining to read "threatened use of physical force" to require
communication of intent to inflict harm.
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describing the actual offense charged or admitted by Delgado
remains unclear.
Delgado, however, makes no claim that, had the district
court examined any Shepard documents, it would have discovered
that the presentence report inaccurately characterized the charged
offense. Therefore, even assuming that the district court clearly
erred by failing, sua sponte, to require the government to clear
up the problematic ambiguity in the presentence report, Delgado's
challenge falls short on the third prong of plain error review.
That prong, in this context, requires him to make a showing he
does not even attempt to make: that he was actually prejudiced by
the absence of the Shepard documents describing the offense to
which he pled. Serrano-Mercado, 784 F.3d at 848.
B. Other Alleged Procedural Errors
Delgado claims his sentence is procedurally unreasonable
on five other bases, all of which, for the reasons already stated,
we review for plain error. See United States v. Cortés-Medina,
819 F.3d 566, 569 (1st Cir.), cert. denied, 137 S. Ct. 410 (2016).
His first few arguments concern a second presentence report that
was docketed on the day of his sentencing. This second report was
identical to the presentence report Delgado received two months
earlier in all but four respects. First, it reclassified the
charges stemming from Delgado's December 2013 arrest as a prior
conviction worth one criminal history point (rather than as pending
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charges) because between the time the first presentence report was
filed and the date of sentencing, a jury had convicted Delgado on
those charges. Second, the report added the point associated with
that conviction to the criminal history score previously
calculated, raising Delgado's score from seven to eight. Third,
the report represented that Delgado's first Yabucoa conviction,
which had originally been assigned one criminal history point, was
worth zero criminal history points. Fourth, the report included
a paragraph addressing the medical issues raised in Delgado's
sentencing memorandum and discussed on the record at sentencing.
Delgado argues that it was error for him to discover
only on the date of sentencing that an additional criminal history
point had been inserted into a new presentence report upon which
the court would rely. He also argues that the district court erred
because it failed to ask him at sentencing whether he had discussed
the new presentence report with his attorney.
We doubt that any error occurred here at all in light of
the fact that the new report appears to have been prepared after
sentencing. During the sentencing colloquy, the district court
observed that it lacked medical records confirming that Delgado
suffered from a medical condition. Delgado's counsel informed the
court that he had brought with him to the hearing a record from an
emergency visit Delgado had made to Ryder Hospital in Bayamón,
Puerto Rico. Delgado's counsel delivered the medical record to
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the court and agreed, in open court, to furnish a copy to
probation. The new report, in turn, noted that "[d]uring
sentencing, defense counsel provided the Court and the undersigned
with a copy of the defendant's record at the Emergency Department
of the Ryder Hospital" and summarized the contents of the medical
record delivered at sentencing. In other words, the new
presentence report refers retrospectively to the sentencing
hearing, so it seems unlikely that the report was available to the
district court at sentencing.
Moreover, aside from the new report's recalculation of
the criminal history points attributable to the first Yabucoa
conviction (which we will discuss momentarily), the new report
differed from the old one only by including a reference to medical
records that Delgado's counsel asked be added to the presentence
report and by confirming a new conviction that had occurred between
the production of the first report and the sentencing hearing.
The conviction was discussed at sentencing, and Delgado does not
dispute either that it did in fact occur or that it was worth one
criminal history point. Even if one were to assume error here,
prejudice would be lacking.
Delgado does challenge the inconsistent treatment of his
criminal history score from one presentence report to the other,
and he disputes the district court's calculation of his criminal
history score at sentencing. These claims, and the array of others
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Delgado makes concerning his criminal history score, all boil down
to an argument that he was assigned eight criminal history points
"when he had 7 at most."
We need not determine whether Delgado's correct criminal
history score is seven or eight. We have previously held that a
court does not commit plain error when it incorrectly calculates
and applies a criminal history score that nonetheless results in
the defendant being placed in the correct Criminal History
Category, because a Criminal History Category recommends one
guidelines sentencing range in all cases, irrespective of the
defendant's criminal history score. See United States v. Albanese,
287 F.3d 226, 229 (1st Cir. 2002) (per curiam). Delgado concedes
on reply that by any calculation, he would have been placed in
Criminal History Category IV. "Thus, even assuming error occurred,
it was not prejudicial because it did not affect [Delgado's]
sentence." Id.
For his fourth argument that his sentence is
procedurally unreasonable, Delgado claims that it was error for
the district court to take note of Puerto Rico's significant
problem with gun violence. Our precedent flatly rejects this
argument. See, e.g., United States v. Narváez-Soto, 773 F.3d 282,
286 (1st Cir. 2014) ("In weighing the impact associated with a
particular crime, a sentencing court may consider the
pervasiveness of that type of crime in the relevant community.").
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Delgado's final procedural unreasonableness argument is
that the district court plainly erred in placing weight on
Delgado's dismissed weapons charges. We confronted a similar
argument in Cortés-Medina. In applying plain error review, we
noted that, in light of the Supreme Court's holding in United
States v. Watts, 519 U.S. 148 (1997) (per curiam), "the Supreme
Court might well hold that a sentencing court may not accord any
significance to a record of multiple arrests and charges without
convictions unless there is adequate proof of the conduct upon
which the arrests or charges were predicated." Cortés-Medina, 819
F.3d at 570. But we also observed that "our own precedent contains
dicta, repeated several times, positing that a series of arrests
'might legitimately suggest a pattern of unlawful behavior even in
the absence of any convictions.'" Id. (quoting United States v.
Lozada-Aponte, 689 F.3d 791, 792 (1st Cir. 2012)). We "caution[ed]
district courts against placing weight on such speculation," but
because the state of the law was unclear, we found that the
district court did not plainly err. Id.
The district court here sentenced Delgado eight months
before we issued our decision in Cortés-Medina, so, like the
district court in that case, it did not have any reason to know
that we would discourage district courts from placing weight on
unsubstantiated charges. Still, plain error review requires us to
evaluate whether the law is clear now, at the time we are
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conducting appellate review, regardless of whether the law was
unclear at the time of sentencing. See Henderson v. United States,
133 S. Ct. 1121, 1127 (2013). Delgado urges us to find that, in
the wake of Cortés-Medina, inferring that past arrests suggest a
pattern of criminal behavior is a clear error of law.
We find that it is not. Cortés-Medina held only that
the law on this question was unclear. True, Cortés-Medina
certainly warns district courts that, when the occasion presents
itself, we very well may sustain a preserved challenge to a
sentence that treats arrests as proof of unlawful conduct or
evidence that a defendant is likely to recidivate. But Delgado's
plain-error appellate challenge provides no such occasion.
C. Substantive Unreasonableness
Finally, Delgado contends that his sentence is
substantively unreasonable as a result of the combined effects of
the alleged errors discussed above, and because the district court
did not provide an explanation sufficient for the sentence it was
imposing to be reviewed effectively on appeal. Having already
found that the district court did not plainly err in its
calculations and evaluation of the sentencing factors under 18
U.S.C. § 3553(a), we need not tarry here. The district court
adequately explained itself: Upon accurately calculating
Delgado's guidelines sentencing range, the court measured the need
for additional specific deterrence and evaluated the seriousness
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of the offense by explaining the impact of crimes like this one in
Puerto Rico. It is well established in this circuit that a
sentence is substantively reasonable "so long as it rests on a
'plausible sentencing rationale' and embodies a 'defensible
result.'" Ruiz-Huertas, 792 F.3d at 228 (quoting United States v.
Martin, 520 F.3d 87, 96 (1st Cir. 2008)). The district court's
sentence does both. It is accordingly not substantively
unreasonable.
III. Conclusion
For the foregoing reasons, we affirm Delgado's sentence
in all respects.
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