United States v. Vega-Rivera

United States Court of Appeals
For the First Circuit

No. 15-2467

UNITED STATES OF AMERICA,

Appellee,

v.

JESÚS HUMBERTO VEGA-RIVERA,

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO

[Hon. Francisco A. Besosa, U.S. District Judge]

Before

Torruella, Thompson, and Barron,
Circuit Judges.

Franco L. Pérez-Redondo, with whom Eric Alexander Vos,
Federal Public Defender, Vivianne M. Marrero, Assistant Federal
Public Defender, Supervisor, Appeals Section, and Liza L. Rosado-
Rodríguez, Research and Writing Specialist, were on brief for
appellant.
Juan Carlos Reyes-Ramos, 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.

August 2, 2017
 THOMPSON, Circuit Judge. Appellant Jesús Humberto Vega-

Rivera ("Vega"), was charged with possession of a firearm by a

convicted felon, in violation of 18 U.S.C. §§ 922(g)(1) and

924(a)(2) (Count One), and illegal possession of a machine gun, in

violation of 18 U.S.C. §§ 922(o) and 924(a)(2) (Count Two).

Pursuant to a plea agreement, Vega pled guilty to both counts. At

sentencing, the district court declined to follow the plea

agreement's recommendations, calculated the applicable Guidelines

range at 46 to 57 months, and sentenced Vega at the top of the

Guidelines range to 57 months' imprisonment. Vega appeals his

sentence arguing that: (1) the district court improperly applied

a two-level enhancement pursuant to United States Guidelines

Manual ("U.S.S.G.") § 3C1.2 for reckless endangerment while

fleeing from law enforcement; (2) the district court abused its

discretion in imposing a curfew and electronic monitoring as

conditions of his supervised release; and (3) that his sentence is

substantively unreasonable. Finding his claims without merit, we

affirm.

Background

Because this appeal follows a guilty plea, "we glean the

relevant facts from the change-of-plea colloquy, the unchallenged

portions of the presentence investigation report (PSI Report), and

the record of the disposition hearing." United States v. Vargas,

560 F.3d 45, 47 (1st Cir. 2009). Around 4:00 p.m. on April 14,

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2015, Guaynabo City Municipal Transit Police attempted to pull

Vega over for a routine traffic stop on Road 177 in Puerto Rico.

Instead of pulling over when instructed by police, Vega took off,

resulting in a high speed chase that ended when Vega crashed his

car into another vehicle in the intersection of Road 177 and

Francisco Sein Street. Immediately following the accident, Vega

took off from the vehicle on foot, carrying a Glock 23 .40 caliber

pistol in his hand. While fleeing, Vega decided to ditch his gun,

throwing the Glock pistol into a bank parking lot on the northwest

corner of the intersection. After abandoning the gun, Vega

continued to run from police, but he eventually surrendered at an

adjacent gas station and was placed under arrest. This incident

took place near the Inter American University of Puerto Rico and

several businesses and restaurants in the area.

Police later recovered the Glock pistol discarded by

Vega in the bank parking lot. The handgun was loaded with a 22-

round magazine filled with 20 bullets, modified to fire in fully

automatic mode, and contained one round of ammunition already

loaded in the chamber of the gun. During an inventory of Vega’s

car, police also found a bullet-proof vest and two additional Glock

22-round capacity magazines with 20 bullets in each. A records

check of the Glock handgun showed that the gun was reported stolen

in September 2009. Further investigation revealed that the Glock

and accompanying ammunition were not manufactured in Puerto Rico

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and must have been shipped or transported in interstate or foreign

commerce.

Several hours after being taken into custody, Homeland

Security Investigations agents interviewed Vega. At the

interview, Vega waived his constitutional rights, including his

right to have a lawyer present. Vega then told the investigators

that three days prior to the incident, he had paid $400 for the

Glock handgun already modified for fully automatic fire and the

three accompanying ammunition magazines. Vega also told the

special agents that he had just finished serving a three-and-a-

half year prison sentence for narcotics. Further investigation

confirmed that Vega had in fact been found guilty of possession of

a controlled substance in July 2009.

Vega was subsequently charged in a two-count indictment

with possession of a firearm by a convicted felon, in violation of

18 U.S.C. §§ 922(g)(1) and 924(a)(2) (Count One) and illegal

possession of a machine gun, in violation of 18 U.S.C. §§ 922(o)

and 924(a)(2) (Count Two).1 Vega eventually pled guilty to both

counts pursuant to a plea agreement. Under the terms of the plea

agreement Vega's base offense level was set at twenty, pursuant to

U.S.S.G. § 2K2.1(a)(4). His base offense level was then increased

1 The indictment also contained a firearms and ammunition
forfeiture allegation, pursuant to 18 U.S.C. § 924(d)(1) and 28
U.S.C. § 2461(c).

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by two levels because the firearm he possessed was stolen, pursuant

to U.S.S.G. § 2K2.1(b)(4), and decreased three levels for

acceptance of responsibility, pursuant to U.S.S.G. § 3E1.1. With

these adjustments, Vega's total offense level was calculated at

nineteen. The parties did not stipulate to Vega's Criminal History

Category and agreed to a sentence within the applicable Guidelines

range, depending on whatever the court determined Vega's Criminal

History Category to be. Vega also agreed to waive his right to

appeal if sentenced in accordance with the terms of the plea

agreement.

The Pre-Sentence Investigation Report ("PSR") was

originally prepared in September 2015 and revised in October 2015.

Like the plea agreement, probation calculated Vega's base offense

level at twenty, added two levels because the firearm he possessed

was stolen, and subtracted three levels for acceptance of

responsibility. Unlike the plea agreement, however, probation

also added a two-level enhancement for reckless endangerment

during flight, pursuant to U.S.S.G. § 3C1.2, stating that Vega

"recklessly created a substantial risk of death or serious bodily

injury to another person in the course of fleeing from a law

enforcement officer." Consequently, the PSR calculated Vega's

total offense level at twenty-one. The PSR also calculated Vega's

Criminal History Category at III because of two prior convictions

for possession and conspiracy to possess with intent to distribute

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controlled substances in 2007 and 2008. With a total offense level

of twenty-one and a Criminal History Category of III, the

applicable Guidelines range was 46 to 57 months.

Vega filed objections to the PSR, including in relevant

part, an objection to the application of the two-level enhancement

for recklessly creating a substantial risk of death or serious

bodily injury. Vega argued that his conduct "did not create a

risk to others of the degree required by the Guidelines, therefore

his actions were not reckless." Vega also argued that he did not

create a substantial risk of death or serious bodily injury while

fleeing from police because "[h]e did not brandish nor discharge[]

the firearm . . . , [n]o one was injured . . . , [h]e did not want

to use [the firearm] and did not use [it]," and he did not run

into any individuals while fleeing.

At sentencing, Vega's counsel again argued that the two-

level enhancement should not apply. Vega's counsel argued that

"although [she] may concede that [Vega] acted recklessly and he

created a risk, that risk had to be substantial; and [she]

believe[d] that in this case [Vega's] actions . . . did not reach

the level of substantial." The government agreed with defense

counsel that Vega's actions did not rise to the level of creating

a "substantial" risk. Probation, however, argued that the two-

level enhancement was merited because:

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 the defendant disobeyed the officers and fled
at a high rate of speed and crashed into
another vehicle. This was the location near
a college when he actually fled the scene. He
got out of the car after crashing the other
vehicle, ran with a gun in his hand. [Vega
later discarded the gun in a public place.]
And this all happened next to a college at
4:00 p.m. where students are around all the
time. So we do believe that it was a
substantial risk of death of any of those
students, any other person driving a car, or
just a person that was around.

The district court agreed with probation and applied the

two-level enhancement for creating a substantial risk of death or

serious bodily injury while fleeing from law enforcement. The

court found that the sentence agreed to by the parties in the plea

agreement "[did] not reflect the seriousness of the offense, [did]

not promote respect for the law, [did] not protect the public from

further crimes by Mr. Vega and [did] not address the issues of

deterrence and punishment." Finding a total offense level of

twenty-one, with a Criminal History Category of III, the court

sentenced Vega at the top of the Guidelines range to 57 months'

imprisonment. The court imposed a term of three years' supervised

release to be served upon Vega's release from prison. The court

also set a curfew and electronic monitoring as terms of Vega's

supervised release. Vega's counsel objected to both terms of

supervised release and again to the application of the two-level

enhancement under U.S.S.G. § 3C1.2.

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 On appeal, Vega seeks to vacate his sentence, arguing

that the district court erred in: (1) applying the § 3C1.2 two-

level enhancement for reckless endangerment during flight and (2)

imposing a curfew and electronic monitoring as conditions of his

supervised release. Vega also argues that (3) his sentence is

substantively unreasonable. We address each argument in turn.

1. U.S.S.G. § 3C1.2 Enhancement

Vega argues that the district court erred in increasing

his base offense level by two levels pursuant to U.S.S.G. § 3C1.2.

Vega argues that his actions did not rise to the degree of

recklessness required and, even if his actions were reckless, they

did not create a substantial risk of death or serious injury. The

government argues that Vega's actions were sufficiently reckless

and created a substantial risk to others.2

Section 3C1.2 provides that "[i]f the defendant

recklessly created a substantial risk of death or serious bodily

injury to another person in the course of fleeing from a law

2 As an initial matter, the government also argues that Vega
waived the argument that his conduct was not reckless when his
attorney stated at sentencing that "although [she] may concede
that [Vega] acted recklessly and he created a risk, that risk had
to be substantial; and [she] believe[d] that in this case [Vega's]
actions [] did not reach the level of substantial." Because Vega's
arguments fail on the merits, we need not address whether he waived
his recklessness argument. See United States v. Llanos-Falero,
847 F.3d 29, 33 n.2 (1st Cir.), cert. denied, 137 S. Ct. 2229
(2017) ("Because the issues Llanos–Falero raises on appeal all
fail, we bypass the appellate-waiver issue and proceed to the
merits.").

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enforcement officer, [his base offense level may be] increase[d]

by 2 levels." "Recklessness requires that the defendant was 'aware

of the risk created by his conduct and the risk was of such a

nature and degree that to disregard that risk constituted a gross

deviation from the standard of care that a reasonable person would

exercise in such a situation.'" United States v. Carrero-

Hernández, 643 F.3d 344, 348 (1st Cir. 2011) (citing U.S.S.G.

§ 2A1.4, cmt. n.1; U.S.S.G. § 3C1.2, cmt. n.2).

"We review a district court's interpretation of the

'legal meaning and scope' of a sentencing guideline de novo.

However, 'we review the court's factfinding for clear error, giving

due deference to the court's application of the guidelines to the

facts.'" Id. at 349 (citing United States v. Thompson, 32 F.3d 1,

4 (1st Cir. 1994)).

a. Recklessness

Contrary to Vega's contentions, there were sufficient

bases to support the district court's finding that his conduct was

reckless.

First, Vega's attempts to flee from officers resulted in

a high-speed chase near a local university that only ended when he

rammed his car into another vehicle. The intersection where the

accident and subsequent chase (on foot) took place was in an active

business area near several restaurants, fast-food spots, bars, and

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a clinical laboratory.3 Such facts alone are sufficient to support

the district court's finding that Vega's conduct was reckless.

See United States v. Jimenez, 323 F.3d 320, 324 (5th Cir. 2003)

(upholding district court application of a § 3C1.2 enhancement

where defendant engaged officers in a high speed chase through

business and residential areas late at night, defendant's conduct

"exhibit[ed] a reckless disregard for the safety of various persons

who resided on the street, those who might otherwise be present on

the street, and the police officers involved in the pursuit");

United States v. Velasquez, 67 F.3d 650, 654-55 (7th Cir. 1995)

(defendant fleeing scene at high rate of speed through residential

neighborhoods supported § 3C1.2 increase). And while the record

does not indicate the specifics of the chase or accident, such as

whether Vega crashed into a parked or moving vehicle, the precise

speed at which he was driving, or whether individuals were located

inside or near the vehicle at the time of the accident, Vega

3 We take judicial notice of the Google map provided by the
government identifying the area where Vega crashed his car and
began his flight on foot from police. See United States v.
Burroughs, 810 F.3d 833, 835 n.1 (D.C. Cir. 2016) ("We grant the
government's motion to take judicial notice of a Google map. It
is a 'source[] whose accuracy cannot reasonably be questioned,' at
least for the purpose of identifying the area where Burroughs was
arrested and the general layout of the block." (quoting Fed. R.
Evid. 201(b))).

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proceeded to take off running with a loaded firearm in his hand in

an area where students, various persons purchasing meals, and

others may have been present. He then threw the loaded, fully

automatic gun in a public parking lot. And, again, while the

record does not indicate whether there were individuals located in

the parking lot at the exact time when he discarded the gun, it is

reasonable to infer that the gun, so casually tossed into a public

arena, could have been found and resulted in injury to others. We

therefore agree with the persuasive authority of our sister

circuits and hold that the absence of such specific minutiae does

not invalidate a finding that the defendant's actions were reckless

where his actions grossly deviated from the standard of care that

a reasonable person would exercise in the same situation. See

United States v. Porter, 643 F. App'x 758, 760 (10th Cir. 2016)

(unpublished) ("[The defendant argues these undisputed facts are

insufficient, as a matter of law, to support the enhancement

because the facts don't identify the speeds at which he drove, the

specific traffic violations he committed, or any bystanders he

actually placed in harm's way. But [the defendant] cites no

authority supporting his argument that a person who flees in a

vehicle to evade a law enforcement officer, drives at unspecified

speeds, commits several traffic violations, crashes into a

residential garage, and drops a fully-loaded semiautomatic pistol

on the ground as he continues to flee on foot hasn't grossly

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deviated from the standard of care that a reasonable person, rather

than a reasonable fleeing criminal suspect, would exercise in the

same situation."); United States v. May, 430 F. App'x 520, 526

(6th Cir. 2011) (unpublished) (affirming district court's

application of the § 3C1.2 enhancement where defendant discarded

a firearm in an area where "pedestrian traffic" was likely).

b. Substantial Risk

Similarly, the district court properly found Vega's

actions to present a substantial risk of harm here. In Carrero-

Hernández we upheld a sentencing court's application of a § 3C1.2

enhancement when the appellant fled from police at forty-five miles

per hour after realizing he was being followed on small back roads

of a residential neighborhood in the early evening. 643 F.3d at

349. The appellant contended that his conduct "was not nearly so

dangerous as other § 3C1.2 enhancement cases." Id. at 348. We

noted that while it is true that more egregious conduct than that

involved in Carrero-Hernández's case had resulted in the

application of the § 3C1.2 enhancement, "[w]e have not held,

however, that such wildly dangerous conduct is the minimum required

under § 3C1.2." Id. at 349. Similarly here, Vega's conduct is

sufficiently egregious to support the application of the § 3C1.2

enhancement. At the risk of being redundant, we repeat, Vega led

officers on a high-speed chase at 4:00 in the afternoon, ran on

public roads with a loaded fully-automatic gun in his hand, and

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then threw the gun into a public parking lot where pedestrians

were sure to frequent. Such conduct could have very well resulted

in substantial injury to others. See id., 643 F.3d at 349 (noting

that "in United States v. Chandler, 12 F.3d 1427 (7th Cir. 1994),

the Seventh Circuit upheld a § 3C1.2 enhancement after a car chase

that passed through a residential neighborhood at dusk, and during

which the defendant 'traveled at speeds that ranged from thirty-

five to fifty miles per hour while swerving from lane to lane to

prevent the police from going around him.' The court noted that

this conduct 'might very well have resulted in injury' to

others.").

2. Curfew and Electronic Monitoring

Vega also appeals the district court's imposition of a

curfew and electronic monitoring as conditions of his supervised

release. Because Vega objected, we review the sentencing court's

imposition of those conditions for abuse of discretion. United

States v. Garrasteguy, 559 F.3d 34, 40 (1st Cir. 2009) ("We review

a sentencing court's decision to impose special conditions of

supervised release for abuse of discretion. If, however, a

defendant has an opportunity to object to a special condition at

sentencing, and stays silent, we review the imposition of a

supervised release condition for plain error only." (citations

omitted)).

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 Vega argues that the imposition of a curfew and

electronic monitoring are not reasonably related to the nature and

circumstances of his offense and therefore constitute a greater

deprivation of liberty than is reasonably necessary. The

government argues that the court's imposition of the special

conditions is reasonably related to Vega's history and

characteristics, the nature and circumstances of the instant

offense, and the need for deterrence, protection of the public and

correctional treatment.

The district court can "impose any condition of

supervised release that is reasonably related to (1) the

defendant's offense, history, and characteristics; (2) the need to

deter the defendant from further criminal conduct; (3) the need to

protect the public from further crimes by the defendant; and (4)

the effective educational, vocational, medical, or other

correctional treatment of the defendant." United States v. York,

357 F.3d 14, 20 (1st Cir. 2004). "[T]he critical test is whether

the challenged condition is sufficiently related to one or more of

the permissible goals of supervised release." Id. (citation

omitted). A special condition does not need "a written or oral

explanation of the reasons supporting the condition if [this Court]

can infer the [district] court's reasoning by comparing what was

argued . . . [or what was] in the pre-sentence report with what

the court did." Garrasteguy, 559 F.3d at 42.

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 Here, the district court's imposition of electronic

monitoring and a curfew is sufficiently related to the defendant's

offense, history, and characteristics. While the district court's

explanation of its reasons for imposing the conditions is not

robust, we can infer the district court's reasoning from the

parties' arguments, the PSR, and what the court did. Vega's

criminal history included two prior drug-related convictions and

a more recent arrest for carrying and using a firearm without a

license. Specifically, in May 2009 Vega was sentenced to a term

of three years' imprisonment for possession of controlled

substances. Soon after release, in May 2012, Vega was arrested

and charged by the commonwealth for carrying and using a firearm

without a license. The district court noted that "as happens too

many times in the local court system the [weapons] charge was

dismissed on speedy trial grounds but Mr. Vega was never

recharged." And Vega's current offense again involved the illegal

possession of a weapon. It can be inferred from these facts that

the district court properly imposed the conditions because of

Vega's history, the need to deter Vega from further criminal

conduct, the need for heightened electronic supervision, and the

need to protect the public from further crimes by the defendant.

See York, 357 F.3d at 20.

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3. Substantive Reasonableness

Finally, Vega challenges his sentence as substantively

unreasonable. Vega argues that "the district court failed to

adequately consider the arguments that were offered in favor of

the sentence at the lower-end of the Guidelines range as calculated

in the plea agreement" or in the district court's own Guidelines

calculation of 46 to 57 months. "The hallmarks of a substantively

reasonable sentence are 'a plausible sentencing rationale and a

defensible result.'" United States v. Zapata-Vázquez, 778 F.3d

21, 24 (1st Cir. 2015) (quoting United States v. Martin, 520 F.3d

87, 96 (1st Cir. 2008)). Moreover, "reversals in substantive

reasonableness challenges are 'particularly unlikely when . . . the

sentence imposed fits within the compass of a properly calculated

[Guidelines sentencing range].'" United States v. Hernández-

Maldonado, 793 F.3d 223, 227 (1st Cir.), cert. denied, 136 S. Ct.

522 (2015) (quoting United States v. Ruiz–Huertas, 792 F.3d 223,

228–29 (1st Cir. 2015) (alterations in original)).

Here, Vega fails to demonstrate that his sentence was

substantively unreasonable. In conducting its sentencing task,

the district court noted Vega's prior convictions for possession

and conspiracy to possess with intent to distribute controlled

substances. It further took into account his personal history, as

well as the nature and circumstances of the instant offense,

remarking that:

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 Mr. Vega's offense involved 61 rounds of
ammunition, 21 rounds loaded in a machine gun,
and two additional magazines each loaded with
20 rounds, a bulletproof vest. He also [had]
a previous arrest on a weapons charge, and, as
I indicated, as happens too many times in the
local court system the charge was dismissed on
speedy trial grounds but Mr. Vega was never
recharged. The Court also has taken into
consideration the fact that he created a
substantial risk to other persons when he fled
from law enforcement.

Accordingly, the court offered "a plausible rationale"

for its decision to sentence Vega at the top of the applicable

Guidelines. See Zapata-Vázquez, 778 F.3d at 24.

Conclusion

For the foregoing reasons, we affirm the district

court's sentencing decisions.

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