United States Court of Appeals
For the First Circuit
No. 15-2154
UNITED STATES OF AMERICA,
Appellee,
v.
MIGUEL NIEVES-BORRERO,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Aida M. Delgado-Colón, Chief U.S. District Judge]
Before
Torruella, Thompson, and Barron,
Circuit Judges.
Luz M. Ríos-Rosario for appellant.
Jonathan L. Gottfried, Assistant United States Attorney, with
whom Mariana E. Bauzá-Almonte, Assistant United States Attorney,
Chief, Appellate Division, and Rosa Emilia Rodríguez-Vélez, United
States Attorney, were on brief, for appellee.
May 1, 2017
BARRON, Circuit Judge. This appeal requires us to review
Miguel Nieves-Borrero's challenge to the 70-month prison sentence
that he received after he pled guilty in the United States District
Court for the District of Puerto Rico, pursuant to a plea
agreement, to aiding and abetting a convicted felon in the
possession of a firearm, in violation of 18 U.S.C. §§ 922(g)(1),
924(a)(2), and 2. We affirm the sentence.
I.
In March of 2015, Nieves entered into a plea agreement
with the government. In that agreement, the parties calculated
that Nieves' base offense level under the United States Sentencing
Guidelines was 14, pursuant to U.S.S.G. § 2K2.1(a)(6). The plea
agreement then calculated that the offense level should be reduced
by two levels due to Nieves' acceptance of responsibility, in
accordance with U.S.S.G. § 3E1.1. The plea agreement thus set
forth a total adjusted offense level of 12. The parties did not
stipulate to a criminal history category ("CHC") and made no
reference to any prior convictions of Nieves'. The plea agreement
noted that the recommended sentencing range under the Guidelines
for a defendant with an offense level of 12 and a CHC of I is 10
to 16 months. U.S.S.G. Ch. 5, Part A. The plea agreement
stipulated that "[t]he parties agree to recommend a term of
imprisonment at the lower end of the applicable guideline range."
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Prior to sentencing, but after the parties entered into
a plea agreement, the Probation Office issued a pre-sentence report
("PSR"). The PSR set forth a base offense level of 26 for Nieves,
which was higher than the base offense level that the plea
agreement had set forth. The PSR used the higher figure because
it noted that Nieves had two prior convictions, neither of which
had been mentioned in the plea agreement. It then relied on these
two prior convictions in calculating his base offense level
pursuant to U.S.S.G. § 2K2.1(a)(1)(B), which provides for a base
offense level of 26 where a defendant has previously "sustain[ed]
at least two felony convictions of either a crime of violence or
a controlled substance offense." The terms "crime of violence"
and "controlled substance offense" are defined in the commentary
to U.S.S.G. § 4B1.2.
The first of Nieves' prior felony convictions that the
PSR identified as qualifying under U.S.S.G. § 2K2.1(a)(1)(B) was
for fourth-degree aggravated battery under Article 122 of the
Puerto Rico Penal Code. See P.R. Laws Ann. tit. 33, § 4750. The
PSR specified that the conviction was "for conduct that qualifies
as a crime of violence under USSG § 4B1.2."
The PSR identified the second of Nieves' qualifying
convictions under U.S.S.G. § 2K2.1(a)(1)(B) as one for attempt to
possess with intent to distribute controlled substances, in
violation of Article 406 of the Puerto Rico Controlled Substances
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Act. See P.R. Laws Ann. tit. 24, § 2406. The PSR specified that
the conviction was "for conduct that qualifies as [a] controlled
substances offense[] under USSG § 4B1.2."
The PSR also applied a two-level enhancement to the
offense level under U.S.S.G. § 2K2.1(b)(1) because Nieves' present
conviction was for conduct that involved five firearms, and applied
a three-level reduction for acceptance of responsibility under
U.S.S.G. § 3E1.1. This resulted in a total adjusted offense level
of 25 for Nieves. The PSR also specified that Nieves had a CHC of
III. The PSR calculated that the resulting sentencing guidelines
range was 70 to 87 months' imprisonment. The PSR did not recommend
a specific sentence. Nieves did not object to the PSR.
Following the issuance of the PSR, Nieves pled guilty to
aiding and abetting a convicted felon in the possession of a
firearm, in violation of 18 U.S.C. §§ 922(g)(1), 924(a)(2), and 2.
At the sentencing hearing, the government recommended a sentence
of 15 months' imprisonment.
The District Court noted the discrepancy between the
Sentencing Guidelines range set forth in the plea agreement and
the one set forth in the PSR, and specifically referred to Nieves'
prior convictions specified in the PSR as qualifying offenses under
U.S.S.G. § 2K2.1(a)(1)(B). Nieves did not object. The District
Court then sentenced Nieves to 70 months' imprisonment. Nieves
now challenges his sentence on appeal.
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II.
Nieves first challenges the classification of his prior
convictions as ones that suffice to trigger the application of
U.S.S.G. § 2K2.1(a)(1)(B). However, Nieves failed to raise this
objection below. The government contends that, in consequence,
Nieves has waived this challenge. See United States v. Turbides-
Leonardo, 468 F.3d 34, 38 (1st Cir. 2006). Nieves responds that
he merely forfeited it and thus that we must review it for plain
error. See United States v. Olano, 507 U.S. 725, 732 (1993). We
need not address whether or not Nieves' failure to object to the
PSR constitutes a waiver, because Nieves fails to demonstrate that
plain error occurred.1 See United States v. Delgado-López, 837
F.3d 131, 135 n.2 (1st Cir. 2016) (declining to decide whether
defendant waived or forfeited objection to PSR where objection was
meritless in any case). And so we proceed to our reasons for
rejecting the substance of his challenge.
A.
Nieves first contends that his conviction for fourth-
degree aggravated battery under Article 122 of the Puerto Rico
Penal Code, see P.R. Laws Ann. tit. 33, § 4750, cannot constitute
1 On plain error review, Nieves must show (1) that an error
occurred (2) which was clear or obvious and which not only (3)
affected the defendant's substantial rights, but also (4)
seriously impaired the fairness, integrity, or public reputation
of judicial proceedings. United States v. Serrano-Mercado, 784
F.3d 838, 845 (1st Cir. 2015).
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a "crime of violence" under U.S.S.G. § 2K2.1(a)(1)(B), as defined
in U.S.S.G. § 4B1.2. Under what is known as § 4B1.2's force
clause, a prior conviction constitutes a "crime of violence" if
the conviction is "punishable by imprisonment for a term exceeding
one year" and "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) (effective Nov. 1, 2014). In addition,
under what is known as the guideline's residual clause, a prior
conviction constitutes a crime of violence if the conviction
"involves conduct that presents a serious potential risk of
physical injury to another." Id. § 4B1.2(a)(2). Nieves contends
that the aggravated battery conviction cannot constitute a "crime
of violence" under either clause.
With respect to the residual clause, Nieves contends
that it is unconstitutionally vague under Johnson v. United States,
135 S. Ct. 2551 (2015), which held unconstitutional a similarly
worded clause in the Armed Criminal Career Act, 18 U.S.C.
§ 924(e)(2)(B)(ii), see id. at 2557. But although the government
makes no argument to the contrary in its brief, the Supreme Court,
following the briefing in this case, squarely rejected the
contention that Johnson invalidates the residual clause in the
Sentencing Guidelines. See Beckles v. United States, 137 S. Ct.
886, 890 (2017). Thus, we reject Nieves' argument that, due to
Johnson, his aggravated battery conviction cannot qualify under
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the residual clause. Cf. United States v. Thompson, No. 13-1822,
2017 WL 1076336, at *2 (1st Cir. Mar. 22, 2017) (declining, after
Beckles, to be bound by the government's pre-Beckles concession
that Johnson invalided the residual clause in the Sentencing
Guidelines).
Moreover, even if we were to set aside the residual
clause and focus solely on the force clause, as the parties did in
their briefs to us, Nieves still cannot show plain error. To
determine whether a prior conviction counts as a crime of violence
under the force clause, we must apply what is called the
"categorical approach," under which "[w]e look to the elements of
the prior convictions as defined by the relevant statute" and
compare those elements "to the elements of the crimes described in
the guideline's definition." United States v. Castro-Vazquez, 802
F.3d 28, 35 (1st Cir. 2015). But, as the government points out,
on its face, Article 122 does not appear to apply to mere offensive
touching -- which we have held sweeps too broadly to constitute a
"crime of violence," see United States v. Fish, 758 F.3d 1, 9 (1st
Cir. 2014) -- because Article 122 applies only where the defendant
has injured another in a manner that "requires medical attention
[or] specialized professional outpatient treatment." P.R. Laws
Ann. tit. 33, § 4750. And Nieves makes no argument as to how
Article 122 -- despite applying only where an injury requires
medical attention or treatment -- sweeps more broadly than the
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definition provided in the force clause. As Nieves fails to argue
how the statute applies to conduct beyond that encompassed by the
force clause -- much less "point to his own case or other cases in
which the state courts in fact did apply the statute" in such a
manner, see Gonzalez v. Duenas-Alvarez, 549 U.S. 183, 193 (2007)
-- Nieves has not shown plain error.
B.
Nieves next contends that the District Court erred by
finding that his other prior felony conviction qualified as a
predicate offense under § 2K2.1(a)(1)(B). The PSR described that
conviction as being for "[a]ttempt to possess with intent to
distribute controlled substances," in violation of Article 406 of
the Puerto Rico Controlled Substances Act. See P.R. Laws Ann.
tit. 24, § 2406. Nieves does not contest this characterization of
his prior conviction. He contends only that the conviction cannot
constitute a "controlled substance offense" under U.S.S.G. § 4B1.2
because it was for attempt to possess controlled substances with
intent to distribute. We do not agree.
The commentary to U.S.S.G. § 4B1.2 makes clear that a
"controlled substance offense" "include[s] the offenses of aiding
and abetting, conspiring, and attempting to commit such offenses."
U.S.S.G. § 4B1.2 cmt. 1 (emphasis added). And while commentary to
the Guidelines "must not be confused with gospel," such commentary
"is generally authoritative" where it is not "arbitrary,
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unreasonable, inconsistent with the guideline's text, or contrary
to law." United States v. Duong, 665 F.3d 364, 368 (1st Cir. 2012)
(citation omitted). We have, moreover, previously treated this
particular commentary to § 4B1.2 as authoritative. See United
States v. Piper, 35 F.3d 611, 617 (1st Cir. 1994) (relying on the
commentary to § 4B1.2 in concluding that an Article 406 conviction
for conspiracy to possess with intent to distribute over 100
kilograms of marijuana constitutes a controlled substance
offense). Thus, Nieves fails to show plain error here as well.
C.
Nieves finally argues that the District Court erred in
classifying the two prior felony convictions as qualifying ones
under U.S.S.G. § 2K2.1(a)(1)(B) because the District Court merely
relied on the PSR's classification of those offenses and thus
failed to fulfill what he contends was the District Court's
obligation to apply the categorical approach to determine whether
those offenses were qualifying. But Nieves did not make this
argument below, and, reviewing for plain error, see United States
v. Dávila-González, 595 F.3d 42, 47 (1st Cir. 2010), we find none.
Even if we were to assume that the District Court had such an
obligation and failed to perform it, we have already explained
that Nieves provides us with no basis for concluding that his prior
convictions were not qualifying predicate offenses under the
categorical approach. He thus cannot show that his substantial
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rights were affected by any error. See United States v. Davis,
676 F.3d 3, 9-10 (1st Cir. 2012) (holding that a defendant failed
to show plain error -- and specifically, that his substantial
rights had been affected -- because he could not show that any
error in determining whether his prior conviction qualified as a
predicate for the career-offender enhancement was prejudicial).
III.
Separately, Nieves contends that the District Court
erred by failing to give sufficient weight to mitigating factors,
as required by 18 U.S.C. § 3553(a). Specifically, Nieves argues
that the District Court failed to consider that Nieves "suffers
from mild retardation and . . . went to school to a Special
Education program until the 10th grade," was raised by a single
mother "in a struggling situation," and has sought guidance and
religion. But Nieves did not raise this objection below either,
and so, here, too, our review is only for plain error. See Dávila-
González, 595 F.3d at 47. We, again, find none.
The District Court stated at sentencing that it was
considering the § 3553(a) factors, and explicitly noted the
following:
[T]he defendant is 28 years of age, has one child, has
a 10th grade education, he abandoned school in the 11th
grade. He was unemployed at the time of arrest, prior
to that he was occasional[ly] employed doing odd jobs.
The defendant is in good physical health. However, he
submitted to mental health treatment as a child. He had
learning disabilities and hyperactivity. He also
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received mental health treatment for anxiety as an adult
under State custody.
The District Court did not refer individually to every mitigating
factor Nieves now identifies. But the District Court did take the
§ 3553(a) factors into consideration. And, "[t]hough we require
consideration of the § 3553(a) factors, we do not require . . .
that each factor be individually mentioned." United States v.
Lozada-Aponte, 689 F.3d 791, 793 (1st Cir. 2012). Accordingly, no
plain error occurred.
IV.
The sentence is affirmed.
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