United States Court of Appeals
For the First Circuit
No. 15-2355
UNITED STATES OF AMERICA,
Appellee,
v.
ELVIN ROMÁN-DÍAZ,
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
Lynch, Selya and Kayatta,
Circuit Judges.
Barry S. Pollack and Pollack Solomon Duffy LLP on brief for
appellant.
Rosa Emilia Rodríguez-Vélez, United States Attorney, Mariana
E. Bauzá Almonte, Assistant United States Attorney, Chief,
Appellate Division, and Thomas F. Klumper, Assistant United States
Attorney, Senior Appellate Counsel, on brief for appellee.
April 7, 2017
SELYA, Circuit Judge. Defendant-appellant Elvin Román-
Díaz asserts that the sentencing court erred in "departing" from
one criminal history category (CHC) to another without notice or
an opportunity to be heard. He further asserts that the sentencing
court erred in ordering his federal sentence to run consecutive to
an undischarged state sentence. Finding no departure and no abuse
of discretion in the imposition of the challenged consecutive
sentence, we affirm.
I. BACKGROUND
A summary of pertinent events suffices to lend
perspective. We draw the facts from the plea agreement (the
Agreement), the change-of-plea colloquy, the undisputed portions
of the presentence investigation report (PSI Report), and the
sentencing transcript. See United States v. Dávila-González, 595
F.3d 42, 45 (1st Cir. 2010); United States v. Dietz, 950 F.2d 50,
51 (1st Cir. 1991).
During 2012, the appellant and others engaged in a
conspiracy to distribute controlled substances in and around
Ponce, Puerto Rico. The appellant functioned as an enforcer for
the drug ring and also stored drugs and weapons for it. While the
conspiracy was velivolant, a high-school student (Juan Ruiz-Vega)
was shot and killed with a rifle owned by a member of the drug
ring.
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On July 24, 2013, a federal grand jury sitting in the
District of Puerto Rico handed up a two-count indictment charging
the appellant with conspiring to possess with intent to distribute
in excess of 280 grams of cocaine base (crack cocaine) and
detectable amounts of cocaine, heroin, and marijuana, in violation
of 21 U.S.C. §§ 841(a)(1) and 846 (count one), and aiding and
abetting in the possession of a firearm in furtherance of a drug-
trafficking crime, in violation of 18 U.S.C. § 924(c) (count two).
After some skirmishing, not relevant here, the appellant pled
guilty to both counts pursuant to the Agreement.
In the Agreement, the appellant stipulated to handling,
as part of the conspiracy, at least 112 grams but less than 196
grams of crack cocaine. The parties agreed that this drug weight
corresponded to a base offense level of twenty-eight for count
one, see USSG §2D1.1, and that a three-level credit for acceptance
of responsibility was warranted, see id. §3E1.1. The parties
further agreed to recommend a sixty-month sentence on count one
and a consecutive sixty-month mandatory minimum sentence on count
two. Finally, the parties agreed to recommend that the aggregate
federal sentence be served concurrently with an undischarged
1,000-year state sentence previously imposed for convictions
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related to the Ruiz-Vega murder (which the parties considered to
be relevant conduct, see id. §1B1.3(a)).1
The Agreement contained no stipulation as to either the
appellant's CHC or his anticipated guideline sentencing range
(GSR). The Agreement's offense level and sentencing
recommendations, though, offer some indication that the parties
held out the hope that the appellant would be placed in CHC I.
After accepting the appellant's plea, the district court
ordered the probation office to prepare the PSI Report. When
received, the report recommended that the court apply the murder
cross-reference, see id. §2D1.1(d)(1), on the ground that the Ruiz-
Vega murder took place in the course of the conspiracy. Accepting
this recommendation had the effect of increasing the appellant's
adjusted offense level from twenty-five to forty. See id. §2A1.1.
Combined with a recommended CHC of III,2 this recasting yielded a
GSR of 360-480 months for count one. See id. §5G1.1(a).
1 Although Puerto Rico is not a state, sentences imposed by
the Puerto Rico courts — like the sentence imposed with respect to
the Ruiz-Vega convictions — have the same force and effect for
federal sentencing purposes as sentences imposed by state courts.
See, e.g., United States v. Carrasco-de-Jesús, 589 F.3d 22, 24, 27
(1st Cir. 2009) (treating an undischarged Puerto Rico sentence as
a state sentence for purposes of evaluating propriety of
consecutive sentence). For ease in exposition, we employ a
conventional shorthand and refer to the Ruiz-Vega sentence as a
state sentence.
2 In recommending that the appellant be placed in CHC III,
the PSI Report did not attribute any criminal history points for
convictions related to the Ruiz-Vega murder. This exclusion was
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With respect to count two, the PSI Report was
straightforward. It recommended — as had the parties — the
statutory minimum term of sixty months' imprisonment. See 18
U.S.C. § 924(c)(1)(A)(i); USSG §2K2.4(b); see also United States
v. Rivera-González, 776 F.3d 45, 49 (1st Cir. 2015) (explaining
that the statutory minimum sentence is, in such circumstances, the
guideline sentence).
The district court convened the disposition hearing on
September 24, 2015. The appellant beseeched the court to follow
the sentencing framework laid out in the Agreement and sentence
him to two consecutive sixty-month incarcerative terms (a total of
120 months' imprisonment), to run concurrently with his state
sentence for the convictions related to the Ruiz-Vega murder. The
prosecutor concurred.
The district court determined that the Ruiz-Vega murder
did not comprise relevant conduct and, thus, refused to apply the
murder cross-reference. The court then determined, based on the
parties' stipulation as to drug weight, that the base offense level
was twenty-six. See USSG §2D1.1(c)(7).3 The court noted, though,
consistent with the PSI Report's conclusion that the Ruiz-Vega
murder occurred in the course of the conspiracy and, thus,
constituted relevant conduct. See United States v. Correy, 570
F.3d 373, 390-91 (1st Cir. 2009).
3 The district court appropriately treated the 2014 edition
of the sentencing guidelines as controlling. See United States v.
Carrasco-Mateo, 389 F.3d 239, 242 n.1 (1st Cir. 2004) (explaining
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that this stipulated drug weight underrepresented the appellant's
actual complicity. After crediting the appellant for acceptance
of responsibility, the court set his total offense level at twenty-
three.
Turning to the other side of the grid, the court
determined that the appellant should be placed in CHC IV (a
determination that added criminal history points for the state
convictions related to the Ruiz-Vega murder because that murder
was not deemed relevant conduct). The appellant initially objected
to this recasting of the murder cross-reference, but retracted his
objection once the court explained that, despite the higher CHC,
the elimination of the murder cross-reference would result in a
substantially lower GSR (seventy to eighty-seven months).4
The court proceeded to sentence the appellant to a top-
of-the-range incarcerative term on count one (eighty-seven months)
and the mandatory minimum incarcerative term (sixty months) on
that a sentencing court must apply "the guidelines in effect at
the time of sentencing unless doing so would present ex post facto
problems"); see also USSG §1B1.11(a). The parties, however, appear
to have used either the 2012 or 2013 edition when drafting the
Agreement. This explains the apparent discrepancy in the base
offense level corresponding to the stipulated drug weight. Such
a discrepancy is inconsequential for present purposes.
4 The recasting, though, had a potentially adverse effect: it
meant that the question of whether the aggregate federal sentence
would run concurrently or consecutively to the undischarged state
sentence was shifted from the guidance of USSG §5G1.3(b) to USSG
§5G1.3(d). We discuss the concurrent/consecutive question infra.
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count two. As provided by statute, see 18 U.S.C.
§ 924(c)(1)(D)(ii), the sentence imposed on count two was ordered
to run consecutively to the sentence imposed on count one. The
court also ordered both sentences to run consecutively to the
undischarged state sentence.
This timely appeal followed.
II. ANALYSIS
In United States v. Booker, 543 U.S. 220 (2005), the
Supreme Court effected a sea change in the law of federal
sentencing, declaring the sentencing guidelines advisory and
directing appellate courts to review sentences for reasonableness.
See id. at 245, 260-61. The Court subsequently clarified that, in
this context, review for reasonableness is functionally equivalent
to review for abuse of discretion. See Gall v. United States, 552
U.S. 38, 51 (2007). That review entails a two-step process: an
inquiring court first should resolve any claims of procedural error
and then should address any challenges to the substantive
reasonableness of the sentence imposed. See id.; United States v.
Martin, 520 F.3d 87, 92 (1st Cir. 2008).
Of course, these standards of review may be altered when
a party has failed to preserve particular claims of error in the
court below. In such an event, review is for plain error. See
United States v. Ruiz-Huertas, 792 F.3d 223, 226 (1st Cir.), cert.
denied, 136 S. Ct. 258 (2015). To prevail under this rigorous
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standard, an appellant must establish "(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 judicial
proceedings." United States v. Duarte, 246 F.3d 56, 60 (1st Cir.
2001).
A.
The appellant's first line of attack deals with the
district court's choice of a CHC. In his view, the court erred by
"departing" from a CHC of III to a CHC of IV without either notice
or an opportunity for him to be heard, thus violating Federal Rule
of Criminal Procedure 32(h).5 Since this claim was not aired
below, review is for plain error.
The premise of the appellant's argument is
unimpeachable: under Rule 32(h), a defendant is entitled to notice
prior to any departure on a ground not identified for departure in
the PSI Report or the parties' presentencing submissions. But the
5 We recently have explained that Rule 32(h) is "a vestige of
the time before [Booker], an era when the guidelines were
mandatory." United States v. Santini-Santiago, 846 F.3d 487, 489-
90 (1st Cir. 2017). Under an advisory guideline regime, a
sentencing court has considerable flexibility to vary a sentence,
up or down, from the guideline range. See id. at 490. Unless the
court specifically states that it is departing, even a sentence
outside the GSR is almost always treated as a variance, not a
departure. See id. There is no general notice requirement for
variances. See Irizarry v. United States, 553 U.S. 708, 714
(2008).
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appellant's attempt to apply that premise here is mistaken. We
explain briefly.
The appellant asserts that the district court's decision
to place him in a higher CHC constituted a departure. This
assertion is simply wrong. In federal criminal sentencing, the
term "departure" is a term of art. It refers specifically to a
decision made by a sentencing court, after constructing the
applicable guideline range, to impose a sentence above or below
that range on one of certain enumerated grounds. See, e.g., United
States v. Wallace, 573 F.3d 82, 96 (1st Cir. 2009); United States
v. Sanchez, 354 F.3d 70, 78-79 (1st Cir. 2004). Part 5K of the
sentencing guidelines collects those enumerated grounds. They
include, for example, situations in which the offense conduct led
to death, USSG §5K2.1; situations in which the offense conduct led
to significant physical injury, id. §5K2.2; and situations in which
the offense conduct involved extreme psychological injury, id.
§5K2.3.
Here, however, there was no departure. The guideline
range itself is a product of two subsidiary determinations. The
sentencing court must determine the offender's total offense level
and his CHC. See United States v. Parkinson, 44 F.3d 6, 9 (1st
Cir. 1994). The decision about which the appellant complains —
the determination that CHC IV applied — was integral to that
process and was made as a part of it. As such, it was not a
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departure and was not subject to the notice requirements of
Rule 32(h). See Irizarry v. United States, 553 U.S. 708, 714
(2008).
In all events, the appellant's claim that the court made
the CHC determination without giving him adequate notice is
specious. He and his counsel knew all along of the convictions
related to the Ruiz-Vega murder and knew that those convictions
would be factored into the calculation of his GSR. That he did
not anticipate the exact manner in which the court would elect to
use those convictions does not mean that he was deprived of notice
in any meaningful sense. Cf. United States v. Vega-Santiago, 519
F.3d 1, 5 (1st Cir. 2008) (explaining that "[g]arden variety
considerations of culpability, criminal history, likelihood of re-
offense, seriousness of the crime, nature of the conduct and so
forth should not generally come as a surprise to trial lawyers who
have prepared for sentencing").
The appellant's remaining claim — that he was not
afforded an opportunity to be heard on the court's CHC
determination — is jejune. In mounting this claim, the appellant
invokes Federal Rule of Criminal Procedure 32(i)(1)(C), which
states that the sentencing court "must allow the parties' attorneys
to comment on . . . matters relating to an appropriate sentence."
Refined to its essence, the rule requires that the court furnish
the defendant "a meaningful opportunity to comment on the factual
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information on which his or her sentence is based." United States
v. Rivera-Rodríguez, 489 F.3d 48, 53-54 (1st Cir. 2007) (quoting
United States v. Berzon, 941 F.2d 8, 10 (1st Cir. 1991)). The
sentencing guidelines reflect much the same sentiment: they
require that a defendant be afforded "an adequate opportunity" to
address "any factor important to the sentencing determination
[that] is reasonably in dispute." USSG §6A1.3(a).
Here, the appellant had every opportunity to comment
upon the sentencing court's proposed treatment of the convictions
related to the Ruiz-Vega murder. There is no indication that the
court at any point refused to hear the appellant or his counsel
regarding the CHC determination — a determination that, as noted
above, actually favored the appellant. To cinch the matter, the
appellant's counsel, during the sentencing hearing, participated
in a discussion with the court and the prosecutor. In that
discussion, he assented to the court's decision to give the
appellant three additional criminal history points — the very
points that shifted the appellant from CHC III to CHC IV.
To say more about the ersatz "departure" claim would be
supererogatory. The appellant has not challenged the propriety of
his placement in CHC IV; instead, he has challenged only the
procedural aspects ancillary to the CHC determination. We hold,
without serious question, that there was no error, plain or
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otherwise, in the procedures accompanying the district court's CHC
determination.
B.
We turn next to the appellant's contention that the
district court misapplied the sentencing guidelines in determining
that his sentence should be imposed consecutively to the
millennium-long state sentence.6 Because it is at least arguable
that this contention was advanced below, review is for abuse of
discretion. See United States v. Carrasco-de-Jesús, 589 F.3d 22,
26 (1st Cir. 2009).
This assignment of error is groundless. To begin, the
district court had discretion to determine whether the sentence
should run consecutive to or concurrent with the state sentence.
After all, "[a] sentencing court's choice between a consecutive or
a concurrent sentence with respect to a defendant who is subject
to an undischarged [state sentence] is normally discretionary."
Carrasco-de-Jesús, 589 F.3d at 27 (citing 18 U.S.C. § 3584(a)).
6
With respect to this feature of his sentence, the appellant
reprises the contention that he should have been provided with
notice and an opportunity to be heard. This contention is
hopeless. The record makes manifest that the appellant had both
notice of the issue and a meaningful opportunity to advocate for
a concurrent sentence: that issue was spotlighted in the Agreement
and, before any sentence was imposed, defense counsel argued
vociferously that the court should run the aggregate federal
sentence concurrently with the undischarged state sentence.
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To be sure, a district court's discretion to choose
between making a sentence consecutive or concurrent is not
absolute. See United States v. Ziskind, 471 F.3d 266, 271 (1st
Cir. 2006). In effecting such a choice, a court must consider the
factors set forth in 18 U.S.C. § 3553(a), "including any applicable
sentencing guidelines or policy statements." Carrasco-de-Jesús,
589 F.3d at 27 (citing 18 U.S.C. § 3584(b)). One such provision
is USSG §5G1.3, which deals with situations in which a defendant
is subject to an undischarged state sentence.7
USSG §5G1.3 covers four possible scenarios.
Subsection (a) applies when the offense of conviction "was
committed while the defendant was serving a term of imprisonment."
This subsection is inapposite where, as here, the offense of
conviction is committed before the commencement of the
undischarged state term of imprisonment. In that event, one of
the three remaining subsections may apply.
Subsections (b) and (c), though, pertain only when the
undischarged state term of imprisonment qualifies as "relevant
7 In his reply brief, the appellant complains that the
district court did not explicitly mention section 5G1.3. That is
true as far as it goes, but it does not take the appellant very
far. What counts is not whether a sentencing court explicitly
mentions a guideline provision but, rather, whether the court
correctly applies that provision.
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conduct" with respect to the offense of conviction.8 See, e.g.,
United States v. Lino, 493 F.3d 41, 44 (1st Cir. 2007); United
States v. McCarthy, 77 F.3d 522, 537 (1st Cir. 1996). Given this
limitation, neither subsection has any bearing here: the court
below ruled that the appellant's convictions stemming from the
Ruiz-Vega murder did not encompass relevant conduct, and that
ruling has not been appealed. It is, therefore, the law of the
case. See United States v. Matthews, 643 F.3d 9, 12 (1st Cir.
2011).
This leaves subsection (d), which covers "any other case
involving an undischarged term of imprisonment." USSG §5G1.3(d).
When — as in this case — an undischarged state term of imprisonment
covers an offense that took place prior to serving a term of
imprisonment and is not relevant conduct, subsection (d) applies.
That subsection cedes the sentencing court discretion to impose a
sentence that runs concurrently with, partially concurrently with,
or consecutively to the undischarged state term of imprisonment;
provided, however, that the sentencing court considers the factors
set out in 18 U.S.C. § 3553(a) and the applicable GSR. See United
States v. Llanos-Falero, 847 F.3d 29, 36 (1st Cir. 2017).
8
Subsection (b) applies to sentences already imposed. See,
e.g., Carrasco-de-Jesús, 589 F.3d at 27. Subsection (c) applies
to anticipated sentences. See USSG §5G1.3, cmt. n.3 (explaining
that "[s]ubsection (c) applies to cases in which the federal court
anticipates that, after the federal sentence is imposed, the
defendant will be sentenced in state court" (emphasis supplied)).
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In this instance, the court carefully considered the
section 3553(a) factors and the appellant's guideline range. It
explained its calculation of the GSR and stated that it had
considered "the general circumstances of the offense and all
[section] 3553 factors." The court went on to note that the
appellant (age forty-four at the time of sentencing) had
consistently been before the judicial system since age thirty and
had recently been convicted of violent offenses related to what
the court described as "the Ponce massacre." Seen in this light,
we think that the district court acted comfortably within the
encincture of its discretion in choosing to run the aggregate
federal sentence consecutively to the undischarged state sentence.
See 18 U.S.C. § 3584(b); United States v. Figueroa-Figueroa, 791
F.3d 187, 191 (1st Cir. 2015).
III. CONCLUSION
We need go no further. For the reasons elucidated above,
the sentence is
Affirmed.
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