Filed: Jul. 01, 2015
Latest Update: Mar. 02, 2020
Summary: § 5G1.3 cmt.felony offense.9, We thus need not reach the government's assertion that any, error in imposing a consecutive term would in any event be harmless, because Figueroa is serving his federal sentence first, and state, authorities are free to disregard the federal court's chosen, approach.
United States Court of Appeals
For the First Circuit
No. 13-1690
UNITED STATES OF AMERICA,
Appellee,
v.
HIRAM M. FIGUEROA-FIGUEROA,
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
Howard, Chief Judge,
Selya and Lipez, Circuit Judges.
Hector E. Guzmán-Silva, Federal Public Defender, Hector L.
Ramos-Vega, Supervisory Assistant Federal Public Defender, and
Patricia A. Garrity, Assistant Federal Public Defender, on brief
for appellant.
Rosa Emilia Rodríguez-Vélez, United States Attorney, Nelson
Pérez-Sosa, Assistant United States Attorney, Chief, Appellate
Division, and Juan Carlos Reyes-Ramos, Assistant United States
Attorney, on brief for appellee.
July 1, 2015
LIPEZ, Circuit Judge. On two consecutive days in March
2012, Hiram L. Figueroa-Figueroa ("Figueroa") engaged in a total of
six acts of violence, all at gunpoint.1 He commandeered a vehicle,
forced the driver from the car, and took money and other items from
the victim; stole two women's handbags in separate incidents;
demanded money from a man pumping gas; forced a motorist who was
withdrawing cash from an ATM to turn over the money and his car;
and, while unsuccessfully trying to escape from police officers,
brandished a loaded revolver. Figueroa was charged with numerous
Puerto Rico offenses and, under federal law, being a felon in
possession of a firearm.2 See 18 U.S.C. §§ 922(g)(1), 924(a)(2).
After pleading guilty to the federal charge, Figueroa was
sentenced to an 87-month term of imprisonment to run consecutively
to his previously imposed 12-year sentence on the commonwealth
charges. On appeal, Figueroa claims that the district court
erroneously ignored a provision of the United States Sentencing
Guidelines ("the Guidelines") requiring concurrent sentencing for
the federal and state offenses. See U.S.S.G. § 5G1.3(b) (2012).
Finding the sentence as imposed to be proper, we affirm.
1
Because this appeal follows a guilty plea, we draw the
background facts from the plea colloquy and sentencing materials.
See United States v. Whitlow, 714 F.3d 41, 42 (1st Cir. 2013).
2
The federal charge stemmed from Figueroa's use of a gun when
resisting arrest. Officers had confronted him based on a
description given by a witness to one of the robberies.
-2-
I. Background
Figueroa's two-day crime spree resulted in six robbery
convictions under Puerto Rico law,3 each with a three-year term of
imprisonment to be served concurrently with the other five, and
nine Puerto Rico weapons convictions, each with a one-year sentence
to be served consecutively with each other and with the term for
the robbery charges. Figueroa was thus sentenced to a total of
twelve years for the state crimes: nine years for the weapons
violations and three for the robberies. That term of imprisonment
was imposed in January 2013; the federal sentencing proceedings
took place three months later, in April.
The presentence investigation report ("PSR") prepared in
advance of the federal sentencing, as amended, set Figueroa's
adjusted offense level at 25. That calculation included a four-
level enhancement because Figueroa had used and possessed a firearm
and ammunition in connection with another felony offense. See
U.S.S.G. § 2K2.1(b)(6)(B). Although the other offense was not
identified, it is undisputed that the PSR relied on some criminal
activity prosecuted by the commonwealth to boost Figueroa's
recommended total Guidelines offense level above the level that
otherwise would have applied for unlawfully possessing a firearm.
3
Although Puerto Rico is not a state, we have long treated
"commonwealth" crimes as "state" crimes under the Guidelines. See
United States v. Torres-Rosa, 209 F.3d 4, 8 (1st Cir. 2000). We
thus use that label throughout this opinion to refer to Figueroa's
offenses under Puerto Rico law.
-3-
The resulting advisory sentencing range was 70 to 87 months'
imprisonment.
In his federal sentencing memorandum, Figueroa asked the
court to impose his federal term concurrent with his commonwealth
sentence "as it involves the same facts . . . [and] specifically
include[s] a weapons charge." He invoked § 5G1.3 of the
Guidelines, which explains when a later federal sentence must be
imposed consecutively or concurrently with a prior undischarged
term of imprisonment, see § 5G1.3(a), (b), and when a court has
discretion to choose the approach, see § 5G1.3(c). In its
memorandum, the government urged an 87-month term of imprisonment.
The government noted that the court had the discretion to impose a
concurrent or consecutive sentence, but it made no recommendation
on that subject.
At Figueroa's federal sentencing hearing, his attorney
requested a sentence of 70 months -- the low end of the Guidelines
range -- and argued that Figueroa's federal and state sentences
should be concurrent because "[s]ome of the events" underlying the
state sentence "are relevant to this sentence." In advocating for
a concurrent sentence, defense counsel expressed her belief that
Figueroa would not be eligible for early release from his state
sentence on the weapons charges, but admitted uncertainty on that
point. The prosecutor, after detailing Figueroa's history of
"serious crimes," recommended a consecutive sentence of 87 months
-4-
based on the sentencing factors listed in 18 U.S.C. § 3553(a).4
Neither party referenced Guidelines § 5G1.3(b).
The district court accepted the PSR calculation and the
resulting sentencing range of 70 to 87 months. Acknowledging its
duty to consider the § 3553(a) factors to determine the appropriate
term of imprisonment, the court then reviewed Figueroa's personal
and criminal background, including his failure to satisfy
conditions associated with lenient sentences he had received for
crimes in 2002 and 2007. The court recognized that Figueroa's
actions may have stemmed in part from his chronic drug abuse and
emotional problems, but observed that "right now he is acting like
a time bomb." Noting that the statutory factors were pertinent to
both "what is the proper sentence and whether that sentence is to
be imposed concurrent or consecutive to the State sentence," the
court determined that a consecutive sentence of 87 months was
appropriate and "not . . . harsher th[a]n necessary."
Following the court's explanation, defense counsel
indicated that a motion for reconsideration might be filed and, if
so, it would clarify whether Figueroa will be required to serve out
4
The prosecutor explicitly pointed to the court's obligation
to consider "the nature and circumstances of the offense and the
history and characteristics of the defendant." 18 U.S.C.
§ 3553(a)(1). Other factors a sentencing court must consider
include the need to "provide just punishment for the offense,"
"afford adequate deterrence," "protect the public from further
crimes of the defendant," and provide the defendant with needed
"training, medical care, or other correctional treatment in the
most effective manner." Id. § 3553(a)(2)(A)-(D).
-5-
the full sentence for the state weapons violations. The court then
responded as follows:
If the argument is that he will have to
serve 12 natural years and then the 8 years
[i.e., the federal sentence], let me tell you
that the sentence that I imposed is extremely
lenient even assuming that he gets a 12 year
sentence. I will not vary the sentence. I
think that the defendant needs a harsh
sentence. He placed the li[ves] of five
individuals at risk. He has been receiving
lenient sentences in the past, he has done
nothing to rehabilitate himself. He has not
come to terms with the fact[] that he needs
rehabilitation. He is lucky that I didn't
sentence him pursuant to the Statute.5
Figueroa did move for reconsideration, complaining that
the amended PSR improperly suggested that he received only a three-
year state sentence for all of the criminal activity committed on
March 11 and 12, 2012. The motion emphasized that he was sentenced
to a 12-year term and reported that he will not qualify for early
release. The motion further urged reconsideration of the impact of
his mental health and drug abuse, noting that he did not harm his
victims and was "an addict looking for money for his 'fix.'" The
motion asserted that Figueroa was being punished for his conduct
with a "stiff" state sentence and, hence, "[m]aking [his federal]
sentence consecutive is imposing a sentence longer than necessary
under 18 U.S.C. § 3553." The motion did not mention Guidelines
§ 5G1.3.
5
In referring to "the Statute," the court may have meant the
statutory maximum of ten years. See 18 U.S.C. § 924(a)(2).
-6-
In response, the government argued that the district
court had no authority to reconsider the sentence, see United
States v. Ortiz, 741 F.3d 288, 292 n.2 (1st Cir. 2014) (stating
that "[t]here is simply no such thing as a 'motion to reconsider'
an otherwise final sentence" (quoting United States v. Dotz,
455
F.3d 644, 648 (6th Cir. 2006))), and cited, inter alia, Guidelines
§ 5G1.3 to support its assertion that the court properly exercised
its discretion to impose a consecutive sentence. The district
court never ruled on the motion for reconsideration.6
II. Discussion
A. Standard of Review
Criminal sentences ordinarily are reviewed for
procedural and substantive reasonableness under the abuse-of-
discretion standard. See, e.g., United States v. Rivera-González,
776 F.3d 45, 48 (1st Cir. 2015). Within that deferential standard,
subsidiary matters of law are afforded de novo scrutiny and
findings of fact are evaluated for clear error.
Id. The
"procedural dimension" of sentencing review includes the
correctness of the court's application of the Guidelines, while
"[t]he substantive dimension focuses on the duration of the
sentence in light of the totality of the circumstances." United
States v. Del Valle-Rodríguez,
761 F.3d 171, 176 (1st Cir. 2014).
6
Because we affirm the sentence, the district court's failure
to rule on the motion to reconsider is immaterial.
-7-
Figueroa asserts that the district court committed
procedural error, and consequently abused its discretion, by
failing to consider § 5G1.3(b) and its guidance that his federal
sentence must be imposed to run concurrently with his undischarged
state sentence. The government asserts that Figueroa failed to
preserve this claim in the district court and it should therefore
be reviewed only for plain error. See United States v. Santiago-
Burgos, 750 F.3d 19, 24 (1st Cir. 2014). The government points out
that, despite invoking § 5G1.3(b) in his sentencing memorandum,
Figueroa did not rely on that provision at his sentencing hearing
and never argued to the district court that it had misapplied the
Guidelines or committed procedural error. That omission is
particularly significant, the government argues, because Figueroa
carried the burden of proving that § 5G1.3(b) applies. See United
States v. Carrasco-de-Jesús,
589 F.3d 22, 28 (1st Cir. 2009).
Although the circumstances here may amount to forfeiture,
we need not dwell on that issue. Even under the standard of review
applied to preserved claims, Figueroa's assertion of error is
unavailing.
B. Legal Principles
Pursuant to federal statutory law, a sentence imposed on
a defendant who is "already subject to an undischarged term of
imprisonment" may run either concurrently or consecutively as the
court deems appropriate, with exceptions that are inapplicable
-8-
here. 18 U.S.C. § 3584(a); see also Setser v. United States, 132
S. Ct. 1463, 1467 (2012) (describing § 3584). In making its
choice, the court is directed to consider the factors listed in
§ 3553(a), see 18 U.S.C. § 3584(b), which include any applicable
sentencing guidelines and policy statements, see
id. § 3553(a)(4),
(5); see also
Carrasco-de-Jesús, 589 F.3d at 27. The Guidelines,
of course, are now advisory rather than mandatory. See, e.g.,
United States v. Millán-Isaac,
749 F.3d 57, 66 (1st Cir. 2014).
Nonetheless, "even though sentencing judges are free to impose non-
Guidelines sentences in appropriate cases, 'district courts must
still give respectful consideration to the now-advisory Guidelines
(and their accompanying policy statements).'"
Id. at 67 (quoting
Pepper v. United States,
562 U.S. 476, 501 (2011)).
At issue here are two subsections of Guidelines § 5G1.3.7
7
In the November 2012 version of the Guidelines, § 5G1.3
stated, in pertinent part, as follows:
(a) [explaining when sentences must run consecutively]
(b) If . . . a term of imprisonment resulted from another
offense that is relevant conduct to the instant offense
of conviction under the provisions of subsections (a)(1),
(a)(2), or (a)(3) of § 1B1.3 (Relevant Conduct) and that
was the basis for an increase in the offense level for
the instant offense under Chapter Two (Offense Conduct)
or Chapter Three (Adjustments), the sentence for the
instant offense shall be imposed . . . to run
concurrently to the remainder of the undischarged term of
imprisonment.
(c) (Policy Statement) In any other case involving an
undischarged term of imprisonment, the sentence for the
instant offense may be imposed to run concurrently,
-9-
Subsection (b), which Figueroa claims applies, calls for concurrent
sentences when two factors exist: (1) the defendant's undischarged
term of imprisonment stemmed from "another offense that is relevant
conduct to the instant offense of conviction" under certain
sections of § 1B1.3, and (2) that other relevant-conduct crime "was
the basis for an increase in the offense level" for the instant
conviction under Chapters Two or Three of the Guidelines.
Subsection (c), claimed applicable by the government, allows a
court in any case not governed by the other subsections to choose
concurrent, partially concurrent, or consecutive sentences "to
achieve a reasonable punishment for the instant offense."
C. Analysis
Figueroa insists that subsection (b) of § 5G1.3 applies
here because the PSR, and the district court in turn, treated the
state crimes underlying his undischarged term of imprisonment as
"relevant conduct" under the Guidelines and, hence, factored those
crimes into the calculation of his federal sentence.8 In other
partially concurrently, or consecutively to the prior
undischarged term of imprisonment to achieve a reasonable
punishment for the instant offense.
8
"Relevant conduct" includes "all acts and omissions
committed . . . by the defendant . . . that occurred during the
commission of the offense of conviction, in preparation for that
offense, or in the course of attempting to avoid detection or
responsibility for that offense," and, with respect to certain
types of crimes, "all acts and omissions . . . that were part of
the same course of conduct or common scheme or plan as the offense
of conviction." U.S.S.G. § 1B1.3(a)(1)(A), (a)(2).
-10-
words, he argues that the court should have imposed a concurrent
federal sentence because his state crimes were used to boost his
Guidelines offense level, thereby increasing the length of his
federal sentence. That argument, however, misses its mark. The
commentary to § 5G1.3 states that subsection (b) applies only where
"all of the prior offense" both is relevant conduct and increases
the total Guidelines offense level. See U.S.S.G. § 5G1.3 cmt.
n.2(A) (emphasis added). The commentary further explains that
"[c]ases in which only part of the prior offense is relevant
conduct to the instant offense are covered under subsection (c)."
Id. At the sentencing hearing, defense counsel recognized that
Figueroa's state crimes included conduct distinct from his federal
offense, observing that "[s]ome of the events" underlying the state
sentence "are relevant to this sentence." The district court
similarly appeared to draw that distinction when it commented,
while describing Figueroa's escapades, that the violent behavior
was "different illegal conduct" from his federal unlawful firearm
possession, which related to his conduct during apprehension.
Even if all of his state offenses were "relevant
conduct," however, § 5G1.3(b) would not apply unless they all also
contributed to an increase in his Guidelines offense level. See
United States v. Dunbar, 660 F.3d 54, 57 (1st Cir. 2011) (per
curiam) (rejecting applicability of § 5G1.3(b) where relevant
conduct "had no causative effect on the federal range or sentence"
-11-
(emphasis omitted)); Carrasco-de-Jesús, 589 F.3d at 28 (rejecting
an interpretation of § 5G1.3(b) "under which an incremental loss
that would not have affected the offense level could nonetheless be
regarded as forming the 'basis' for an increase in that level").
As described above, the PSR assigned Figueroa a four-level
enhancement in his Guidelines offense level because he "used and
possessed a firearm and ammunition in connection with another
felony offense." Second Amended PSR at 3 (citing U.S.S.G.
§ 2K2.1(b)(6)(B)). Although Figueroa committed multiple such
offenses during the two days preceding his arrest, leading to six
convictions for robbery with sentences to be served concurrently,
only one qualifying offense was needed to trigger the enhancement.
Hence, most of his undischarged state term of imprisonment stems
from criminal activity that did not impact his adjusted offense
level, placing his circumstances outside the scope of subsection
(b) and squarely within the coverage of subsection (c).
A refusal to apply subsection (b) where the defendant had
"surplus" relevant conduct -- i.e., more prior criminal acts than
necessary to reach the Guidelines calculation -- is consistent with
that provision's purpose to avoid or mitigate double punishment.
We have concluded that "[n]o such double punishment is threatened
where . . . the relevant conduct did not affect the governing final
guideline calculation." Dunbar, 660 F.3d at 57 (emphasis omitted).
Here, too, where there is little overlap in the criminal activity
-12-
that determined Figueroa's state and federal terms of imprisonment,
the Guidelines provided the district court with the discretion
under subsection (c) to decide how much, if any, of the federal
sentence should run concurrently with his undischarged state term.
Figueroa wisely does not argue on appeal that the
district court abused its discretion in finding that the
considerations under § 3553(a), aside from Guidelines § 5G1.3,
support a consecutive sentence. The district court adequately
explained why it concluded that Figueroa should serve a lengthy
sentence despite his personal challenges. As its choice of a
consecutive period of incarceration was authorized by statute and
consistent with the Guidelines, we have no basis for disturbing the
sentence imposed.9
III.
Having found that the district court did not err by
failing to apply subsection (b) of Guidelines § 5G1.3, we affirm
its sentencing judgment.
So ordered.
9
We thus need not reach the government's assertion that any
error in imposing a consecutive term would in any event be harmless
because Figueroa is serving his federal sentence first, and state
authorities are free to disregard the federal court's chosen
approach. See Setser, 132 S. Ct. at 1471 (noting that, if a
prisoner "serves his federal sentence first, the State will decide
whether to give him credit against his state sentences without
being bound by what the district court or the Bureau [of Prisons]
said on the matter").
-13-
