Filed: Jun. 28, 2006
Latest Update: Feb. 21, 2020
Summary: guidelines sentence.1, Abad waived his claim of entitlement to a more developed, presentence investigation of the factual basis for the aggravating, factors relied upon by the district court by affirmatively, requesting an abbreviated presentence report in order to expedite, his sentencing.
Not For Publication in West's Federal Reporter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. 05-2603
UNITED STATES OF AMERICA,
Appellee,
v.
SANTOS ABAD-REYES,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Jay A. García-Gregory, U.S. District Judge]
Before
Boudin, Chief Judge,
Torruella and Howard, Circuit Judges.
Evelyn Quinoñes-Carrasquillo on brief for appellant.
Nelson Pérez-Sosa, Assistant United States Attorney, Mariana
E. Bauzá-Almonte, Assistant United States Attorney, and H.S.
Garcia, United States Attorney, on brief for appellee.
June 28, 2006
Per Curiam. Santos Abad-Reyes ("Abad") pled guilty to
reentering the United States illegally after being deported, in
violation 8 U.S.C. § 1326(a) (2002), and was sentenced--after
United States v. Booker, 543 U.S. 220 (2005)--to 24 months'
imprisonment, the statutory maximum for that offense. 8 U.S.C. §
1326(a). He now appeals from that sentence, arguing that it is
unreasonably high in light of the factors enumerated in 18 U.S.C.
§ 3553(a) and in light of the plea agreement, in which the parties
stipulated to guideline calculations that resulted in a sentencing
range of only one to seven months' imprisonment. For the reasons
discussed below, we affirm.
Even after Booker, "a sentencing court is still required
to 'consult [the] Guidelines and take them into account when
sentencing.'" United States v. Robinson, 433 F.3d 31, 35 (1st Cir.
2005) (quoting
Booker, 543 U.S. at 264). "In most cases, this will
mean that the district court will have to calculate the applicable
guidelines range including the resolution of any factual or legal
disputes necessary to that calculation . . . before deciding
whether to exercise its new-found discretion to impose a non-
guidelines sentence." United States v. Jiménez-Beltre,
440 F.3d
514, 518 (1st Cir. 2006) (en banc).
In this case, the district court did not independently
calculate the guidelines range but, instead, relied on the parties'
stipulation in their plea agreement, which excluded a 16-level
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enhancement that may have been applicable because Abad was deported
after being convicted of domestic violence. See U.S.S.G.
§ 2L1.2(b)(1)(A)(ii) (requiring such an enhancement if the
defendant was deported after a conviction for "a felony that is .
. . a crime of violence"). Such reliance is permissible, absent
exceptions not relevant here. United States v. Rodríguez-Gonzáles,
433 F.3d 165, 169 (1st Cir. 2005) (citing United States v. Teeter,
257 F.3d 14, 28 (1st Cir. 2001)).
In deciding to impose a sentence above the parties'
stipulated guidelines range, the court adequately explained its
reasons as required by Jiménez-Beltre, 440 F.3d at 519. In
particular, the court took into account the seriousness of the
offense of illegal reentry, 18 U.S.C. § 3553(a)(2)(A); the need to
deter future crimes and promote respect for the law, 18 U.S.C. §
3553(a)(2)(A) & (B) (the instant offense was Abad's second illegal
reentry); and the defendant's criminal history and the need to
protect the public, 18 U.S.C. § 3553(a)(1) & (2)(C) (Abad's prior
domestic violence conviction involved his repeatedly hitting his
common-law wife in the face, grabbing her by the neck, and
threatening to kill her, all in front of their young children).1
Because the district court did not rely on any impermissible
1
Abad waived his claim of entitlement to a more developed
presentence investigation of the factual basis for the aggravating
factors relied upon by the district court by affirmatively
requesting an abbreviated presentence report in order to expedite
his sentencing.
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factors in determining the appropriate sentence, United States v.
Scherrer, 444 F.3d 91, 95 (1st Cir. 2006) (en banc), gave plausible
reasons, and reached a defensible result,
Jiménez-Beltre, 440
F.3d at 519, we defer to its on-the-scene judgment,
id.
For much the same reasons, we reject Abad's remaining
argument--that the district court unreasonably declined to follow
the prosecutor's recommendation, pursuant to the plea agreement, to
sentence him to three months' imprisonment, the middle of the
parties' stipulated guidelines range. Except where the parties
enter into a binding plea agreement under Rule 11(c)(1)(C), which
did not happen here, the sentencing court is not bound by the
parties' agreement as to an appropriate sentence.
Teeter, 257 F.3d
at 28. Indeed, Abad acknowledged the non-binding nature of the
agreement, both in the agreement itself and at his change of plea
hearing. For the same reasons that we find the sentence imposed to
be reasonable, we reject Abad's argument that the district court
abused its discretion in declining to follow the prosecutor's
agreed-upon sentencing recommendation.
Accordingly, the sentence is summarily affirmed. See 1st
Cir. R. 27(c).
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