Filed: Jan. 23, 2015
Latest Update: Mar. 02, 2020
Summary: United States v. Denson, 689 F.3d 21, 28 (1st Cir. drug trafficking crime . The court said at the plea hearing and at, sentencing that this is a non-guideline case, that the, guidelines tell me not to use the guidelines, and that the, guidelines will not play a part in sentencing for § 924(c).
Not for Publication in West's Federal Reporter
United States Court of Appeals
For the First Circuit
No. 13-2356
UNITED STATES OF AMERICA,
Appellee,
v.
FRANCISCO SANTIAGO-SERRANO, a/k/a MALLUCA,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. José A. Fusté, U.S. District Judge]
Before
Thompson, Kayatta, and Barron,
Circuit Judges.
Michael R. Hasse on brief for appellant.
Rosa Emilia Rodríguez-Vélez, United States Attorney, Nelson
Pérez-Sosa, Assistant United States Attorney (Appellate Chief), and
Thomas F. Klumper, Assistant United States Attorney, on brief for
appellee.
January 23, 2015
THOMPSON, Circuit Judge. After entering into a plea
agreement with a pledge that prosecutors would propose a sentence
range of 168 to 210 months, Francisco Santiago-Serrano pled guilty
to carrying and using a firearm in relation to a drug offense. See
18 U.S.C. § 924(c)(1)(A). The district court, however, imposed a
360-month prison sentence — a term Santiago-Serrano now says is
both procedurally and substantively unreasonable. We review
preserved arguments for abuse of discretion and unpreserved ones
for plain error. See, e.g., United States v. Tavares, 705 F.3d 4,
24 (1st Cir. 2013). And having studied the record — the plea
agreement, the unobjected-to pre-sentence investigation report
("PSI report"), the transcripts of the change-of-plea and
sentencing hearings, etc. — as well as the law books, we conclude
that this is a sure-shot win for the government. So we affirm,
with these brief comments.
On the procedural-reasonableness issue:
1. For the first time on appeal, Santiago-Serrano claims
the district court neither sufficiently considered the factors
listed in 18 U.S.C. § 3553(a), nor adequately considered the
mitigating factors favoring a lower sentence, nor satisfactorily
explained its sentencing rationale. We think the opposite.
Yes, a sentencing court must ponder the relevant
§ 3553(a) factors. But the court "need not give each factor equal
billing." United States v. Denson, 689 F.3d 21, 28 (1st Cir.
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2012). Moving from the general to the specific, the court here
gave individualized attention to Santiago-Serrano's case. The
court heard defense counsel's pitch for leniency and Santiago-
Serrano's allocution. And the court then touched on a number of
§ 3553(a) factors relevant to his situation. For example, the
court noted the seriousness of his crime — the plea agreement's
admitted-to facts showed that for years he was "the main leader" of
a drug conspiracy, "a drug point owner," the receiver of drug
"proceeds," and a gun-carrying "enforcer." The court also
highlighted his prior run-ins with the law — including his earlier
local drug conviction and his still-pending local first-degree-
murder charge. And the court talked — at least inferentially —
about the need to deter and protect others. Maybe the court's
sentencing explanation was a tad brief. But "brevity" does not
necessarily mean "inattention." United States v. Turbides-
Leonardo, 468 F.3d 34, 42 (1st Cir. 2006). And any holes in the
court's reasoning can be plugged by "comparing what was argued by
the parties or contained in the [PSI report] with what the [court]
did." United States v. Jiménez-Beltre,
440 F.3d 514, 519 (1st Cir.
2006) (en banc).
No plain error.
2. Relatedly, Santiago-Serrano blasts the court for
harping on the perceived problems with Puerto Rico's justice
systems — including the supposedly lenient way courts there handled
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his past criminal scrapes — and on how drug and gun crimes are the
scourge of his community. But such considerations are not
improper, provided the court still pays attention to the
particulars of the offender's case. See United States v. Flores-
Machicote, 706 F.3d 16, 24 (1st Cir. 2013); see also United States
v. Narváez-Soto, No. 13-1963,
2014 WL 6790763, *3 (1st Cir. Dec. 3,
2014). And the record reflects that the court heeded this
directive.
No abuse of discretion.
3. Santiago-Serrano complains that the sentencing record
left the leadership issue "unresolved." The problem for him is
that he signed a plea agreement admitting (among other things) that
he "was the main leader of the drug trafficking organization" — not
to mention "a drug point owner" and "enforcer" for the syndicate.
Which is more than enough to support the court's leadership
conclusion. For completeness's sake — and at the risk of overkill
— we also note that during the change-of-plea hearing the court
spotlighted for Santiago-Serrano how the plea agreement's fact
statement said he had a leadership position with the drug
enterprise. "Is that what happened, sir?" the court asked him.
"Yes," he said.
No abuse of discretion.
4. We disagree with Santiago-Serrano's suggestion made
here — but not below — that the court was bound by the plea
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agreement's recommended 168-to-210-month sentencing range. After
all, a court is not typically required to blindly follow the
parties' recommended sentence. See, e.g., Flores-Machicote, 706
F.3d at 19-20. We say "typically" because "a so-called C-type plea
agreement" lets "the parties . . . bind the district court to a
pre-agreed sentence if the court accepts the plea." United States
v. Rivera-Martínez,
665 F.3d 344, 345 (1st Cir. 2011). This is not
the case here, however, as the plea agreement indicated and as the
judge explained during the change-of-plea hearing.1
No plain error.
5. Santiago-Serrano débuts a number of arguments here
based on chapter 4 of the federal sentencing guidelines. He points
out, for example, that U.S.S.G. § 4A1.2(e)(1) says a crime counts
toward a defendant's criminal-history score only if it resulted in
his imprisonment "during any part" of the 15 years preceding the
the start of the present offense. And he insists that the court
incorrectly counted one of his crimes based on this formula. But
his claim is a nonstarter. For cases like ours, as the unobjected-
to PSI report notes, another provision — U.S.S.G. § 2K2.4(b) —
tells courts that chapter 4 does not apply when calculating
sentences for § 924(c) offenses. And nothing shows that the court
1
The parties negotiated the plea agreement pursuant to Fed.
R. Crim. P. 11(c)(1)(B), not (C).
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applied chapter 4 here. All of this ultimately undermines
Santiago-Serrano's chapter-4-based arguments.2
No plain error.
Turning now to the question of substantive
reasonableness:
1. Santiago-Serrano thinks the sentence of 360 months —
30 years — is too harsh. Reduced to its essentials, the statute of
conviction provides that anyone who possesses a firearm in
furtherance of a drug-trafficking crime "shall, in addition to the
punishment provided for such . . . drug trafficking crime . . . be
sentenced to a term of imprisonment of not less than 5 years." 18
U.S.C. § 924(c)(1)(A)(i). The maximum penalty is life in prison.3
See, e.g., United States v. Ortiz-García, 665 F.3d 279, 285 (1st
2
A quick aside. The court said at the plea hearing and at
sentencing that this is "a non-guideline case," that "the
guidelines tell me not to use the guidelines," and that the
"guidelines will not play a part" in sentencing for § 924(c). But
the guidelines do contain a recommended sentence for a § 924(c)
conviction — they recommend the statutory minimum. See U.S.S.G.
§ 2K2.4(b); United States v. Millán-Issac, 749 F.3d 57, 67 (1st
Cir. 2014). Here, that is 5 years. See 18 U.S.C. § 924(c). One
could argue from this that the court might have committed a
procedural error in failing to calculate the guideline range. See
Tavares, 705 F.3d at 25. But we need not tackle that issue,
because Santiago-Serrano did not raise that argument below or here,
which means it is waived. See, e.g., United States v. Sacko,
247
F.3d 21, 24 (1st Cir. 2001).
3
The statute also declares that the prison term shall not
"run concurrently with any other" prison term imposed, including
any prison term "imposed for the . . . drug trafficking crime
during which the firearm was . . . possessed." 18 U.S.C.
§ 924(c)(1)(D)(ii).
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Cir. 2011). No one doubts that the court handed out a stiff
sentence, though one that obviously is below the statutory maximum.
But not every stiff sentence is — by that fact alone —
substantively unreasonable. See, e.g., Flores-Machicote, 706 F.3d
at 25; United States v. Vargas,
560 F.3d 45, 51 (1st Cir. 2009).
What matters is whether the court's rationale was "plausible" and
whether the sentence falls "within the expansive universe" of
acceptable outcomes. United States v. King,
741 F.3d 305, 308 (1st
Cir. 2014). And the court's sentence here passes that test.
The court offered sufficiently compelling reasons to
justify the sentence. Santiago-Serrano's offense conduct is
serious — as the conspiracy's leader, drug-point owner, and
enforcer he (in the court's words) used others to "destroy[] the
very essence of what a human life is"; his criminal history is
troubling; and the deterrence and societal-protective needs are
great. Perhaps a different court would have settled on a different
sentence. But because we cannot say that this court's decision is
outside the "wide" realm of defensible results, the sentence
stands. See United States v. Del Valle-Rodríguez, 761 F.3d 171,
177 (1st Cir.) (adding too that "there is no perfect sentence"),
cert. denied,
135 S. Ct. 293 (2014).
No abuse of discretion.
Affirmed.
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