Filed: Aug. 24, 2006
Latest Update: Feb. 21, 2020
Summary: United States Attorney, on brief for appellee.duress--and failed to explain the reasons for the sentence imposed.trafficking, Quirindongo escaped. The presentence, report, which the district court adopted without objection from, either party, states that he was arrested on May 13, 2004.
Not for Publication in West's Federal Reporter
Citation Limited Pursuant to 1st Cir. Loc. R. 32.3
United States Court of Appeals
For the First Circuit
No. 05-1389
UNITED STATES OF AMERICA,
Appellee,
v.
ANGEL ANTONIO QUIRINDONGO-MARTÍNEZ,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Juan M. Pérez-Giménez, U.S. District Judge]
Before
Boudin, Chief Judge,
Selya and Lipez, Circuit Judges.
Jean C. LaRocque and Shea, LaRocque & Wood, LLP on brief for
appellant.
Nelson Pérez-Sosa, Assistant U.S. Attorney, Jacqueline D.
Novas, Assistant U.S. Attorney, and Rose Emilia Rodríguez-Vélez,
United States Attorney, on brief for appellee.
August 24, 2006
Per Curiam. Defendant Angel Antonio Quirindongo-Martínez
("Quirindongo") appeals from his sentence for escape, imposed
shortly after the Supreme Court's decision in United States v.
Booker, 543 U.S. 220 (2005), which rendered the Sentencing
Guidelines advisory rather than mandatory. On appeal, Quirindongo
challenges the reasonableness of his sentence on the grounds that
the district court failed to take into account his proffered
mitigating circumstances--i.e., that the escape was committed under
duress--and failed to explain the reasons for the sentence imposed.
After careful review of the record, we affirm the sentence because
the sentencing court's reasons, although not expressly stated, can
be inferred from the record. See United States v. Navedo-
Concepción,
450 F.3d 54, 57 (1st Cir. 2006); United States v.
Jiménez-Beltre,
440 F.3d 514, 519 (1st Cir. 2006) (en banc). In
reaching this result, we are cognizant that the sentencing in this
case occurred only a few weeks after the Supreme Court's decision
in Booker and without the benefit of our subsequent guidance as to
the appropriate post-Booker sentencing protocol. "[I]n the future
the main factors ought to be identified by the district court
itself."
Navedo-Concepción, 450 F.3d at 58.
While imprisoned after being convicted for drug
trafficking, Quirindongo escaped. After being recaptured several
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months later,1 he pled guilty to escape, in violation of 18 U.S.C.
§ 751(a).
At his sentencing, Quirindongo requested either that his
escape sentence be imposed to run concurrently with the remainder
of his drug trafficking sentence or that any consecutive sentence
"be reduced from the suggested guideline range."2 Those
alternative requests amounted to the same thing since, as
Quirindongo acknowledges on appeal, the guidelines provide that,
"[i]f the instant offense was committed while the defendant was
serving a term of imprisonment . . ., the sentence for the instant
offense shall be imposed to run consecutively to the undischarged
term of imprisonment." U.S.S.G. § 5G1.3(a) (Nov. 2004).
In support of that request, Quirindongo relied solely on
his contention that his escape was committed under duress.
Specifically, defense counsel argued that Quirindongo escaped
1
Quirindongo escaped on February 15, 2004. The precise date
of his recapture is unclear from the record. The presentence
report, which the district court adopted without objection from
either party, states that he was arrested on May 13, 2004.
However, at the change of plea hearing, the government stated,
without objection, that he was arrested on April 13, 2004. The
latter date is also contained in the Marshal's affidavit in support
of the criminal complaint, which issued on May 13, 2004.
2
Defense counsel's use of the word "suggested" indicates that
he was seeking a variance from an advisory guidelines sentence
rather than a downward departure within the guidelines. However,
so soon after Booker, such distinctions were not common parlance.
To the extent that he was seeking a downward departure, the
government is correct that the district court's failure to grant
one is generally not reviewable, even after Booker. United States
v. Meléndez-Torres, 420 F.3d 45, 50 (1st Cir. 2005).
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because he did not want to participate in an impending violent
confrontation between two rival gangs, which, in fact, took place
shortly after his escape. He further feared that, if he reported
the prospect of such a confrontation to authorities, other inmates
would retaliate against him. So, he sought a transfer without
disclosing his reason for doing so, and when that request was
denied, he escaped. Quirindongo himself told a somewhat different
story.3 In response, the government argued, albeit cryptically,
that Quirindongo's failure to report voluntarily to authorities
immediately after his escape was inconsistent with his claim of
duress4 and that the two descriptions of the circumstances leading
up to the escape did not "match."
After hearing those arguments, the court properly began
its sentencing determination by calculating the applicable
guidelines range, Jiménez-Beltre, 440 F.3d at 518, of 27 to 33
months. In so doing, the court recognized that it was not bound to
3
In his allocution, Quirindongo stated that he had felt
"pressured" since he arrived at the institution a few months
earlier because, when he was unable to produce papers requested by
prison officials, he was told that if he did not produce them in 15
days, "something was going to happen to [him]." He then tried
three times to seek a transfer to another institution but was
unable to see a counselor. Since he "already knew that something
was going to happen," when he heard about the impending gang
confrontation, he escaped to avoid injury to himself or others.
4
Some courts have held that duress, as a defense to escape,
requires that the escapee report to the proper authorities as soon
as he has reached a safe place. See Sarlund v. Anderson, 205 F.3d
973, 976 (7th Cir. 2000); Wayne R. LaFave, 2 Substantive Criminal
Law § 9.7(b) at 75 & n.24 (2d ed. 2003).
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sentence within that range by stating that those calculations would
govern "[i]f the Court were to apply the guidelines in this case."
The court then proceeded to announce the sentence--33 months to be
served consecutively to the drug trafficking sentence that he was
serving when he escaped. Other than state that it had "reviewed
the presentence report, the defendant's prior record and personal
background and his involvement in the instant offense," the court
gave no reasons for rejecting Quirindongo's duress argument or for
imposing this particular sentence. However, we infer that the
court was not persuaded by the duress claim for the reasons argued
by the government, and we find nothing unreasonable in that result.
We further infer that, in choosing to impose a 33-month consecutive
sentence, the court gave substantial weight to the guidelines,
which is also appropriate. Id. at 518. Moreover, apart from the
guidelines, it is obvious that if an escape sentence were to run
concurrently with the sentence for the underlying crime, such a
sentence would provide no deterrence to escape; the prisoner would
have nothing to lose. Finally, as the district court's prefatory
comments suggest, the length of the sentence may have been driven,
in part, by Quirindongo's lengthy criminal record, which included
an instance of absconding while on parole, for which an arrest
warrant is still outstanding.
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We find that implicit reasoning to be plausible and the
result defensible. See id. at 519. Accordingly, the sentence is
affirmed. See 1st Cir. R. 27(c).
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