LIPEZ, Circuit Judge.
This is an appeal from a sentence following Francisco J. Vélez-Soto's guilty plea in a multi-defendant drug conspiracy case. While on bail pending sentencing in his federal case, appellant pled guilty to three state law crimes: second degree murder and two weapons law violations. Appellant contends that the district court's decision to impose a 280-month federal sentence to run concurrently with his state sentence was procedurally unsound and substantively unreasonable. Finding the sentence proper in all respects, we affirm.
Given that this appeal follows a guilty plea, the facts are derived from the presentence investigation report (PSR), the change of plea colloquy, and the transcript of the sentencing hearing. See United States v. Whitlow, 714 F.3d 41, 42 (1st Cir.2013).
Beginning in 2000, and continuing until the return of the federal indictment, Vélez-Soto participated in a conspiracy to distribute controlled substances in the Candelaria, El Carmen, and Kennedy Public Housing Projects in Puerto Rico. Vélez-Soto
On July 7, 2010, a Puerto Rico federal grand jury returned a six-count indictment charging Vélez-Soto and 102 co-conspirators with conspiracy to distribute controlled substances in violation of 21 U.S.C. §§ 841(a)(1), 846, and 860 (Count One), among other offenses. Vélez-Soto entered a guilty plea to Count One pursuant to Federal Rule of Criminal Procedure 11(c)(1)(C). The plea agreement recommended as appropriate a prison term of 108 to 120 months.
On May 16, 2011, pending his federal sentencing, Vélez-Soto was charged in Commonwealth court with murder and weapons violations. He pled guilty to second degree murder and two counts of weapons law violations. On February 19, 2013, he was sentenced to 204 months' imprisonment: fifteen years and one day on the murder charge, to be served consecutively with one-year terms for each weapons violation.
On March 4, 2013, Vélez-Soto appeared for a pre-sentencing hearing on the federal drug conspiracy charge. The district court rejected Vélez-Soto's plea agreement, noting that Vélez-Soto breached it when he committed second degree murder while out on bail pending his federal sentencing. The court gave Vélez-Soto until March 20, 2013 to withdraw his guilty plea, which he declined to do.
The district court sentenced Vélez-Soto on June 18, 2013. Based on a total offense level of 31 and a criminal history category of III, the district court noted the guideline range of 135 to 168 months.
Vélez-Soto filed a timely notice of appeal, asserting that the district court's sentence was procedurally unsound and substantively unreasonable.
We review federal criminal sentences imposed under the advisory Guidelines for abuse of discretion. Gall v. United States, 552 U.S. 38, 51, 128 S.Ct. 586, 169 L.Ed.2d 445 (2007); United States v. Madera-Ortiz, 637 F.3d 26, 30 (1st Cir. 2011). Within this framework, we review a district court's factual findings for clear error, and its interpretation and application of the Guidelines de novo. United
Vélez-Soto argues that the district court's decision not to impose a fully concurrent 108- to 120-month sentence, and its failure to consider the commentary to U.S.S.G. § 5G1.3(c), rendered its sentence procedurally unsound.
A sentencing court has discretion to impose either a consecutive or a concurrent sentence when a defendant is subject to an undischarged state-court term of imprisonment. 18 U.S.C. § 3584(a). Nonetheless, in exercising this discretion, a sentencing court must consider the factors set forth in 18 U.S.C. § 3553(a), including any applicable sentencing Guidelines or policy statements. Id. § 3584(b); United States v. Carrasco-De-Jesús, 589 F.3d 22, 27 (1st Cir.2009). Although the Guidelines are no longer mandatory, "`district courts must still give respectful consideration to the now-advisory Guidelines (and their accompanying policy statements).'" United States v. Millán-Isaac, 749 F.3d 57, 67 (1st Cir.2014) (quoting Pepper v. United States, 562 U.S. 476, 501, 131 S.Ct. 1229, 179 L.Ed.2d 196 (2011)).
The applicable version of Guidelines § 5G1.3(b) provides for a concurrent or partially concurrent sentence when the defendant is subject to a previously imposed but undischarged term of imprisonment that has "resulted from another offense that is relevant conduct to the instant offense of conviction," if the relevant conduct offense "was the basis for an increase in the offense level." U.S.S.G. § 5G1.3(b) (2012). To gain the benefit of § 5G1.3(b), "a defendant must prove that [he] satisfies each and every element of the guideline," including that the charge underpinning the undischarged term of imprisonment was the basis for an increase in the offense level for the offense of conviction. Carrasco-De-Jesús, 589 F.3d at 27. Under § 5G1.3(c), a district court "may impose a sentence concurrently, partially concurrently, or consecutively" and "[t]he end result need only be `reasonable.'" United States v. Vázquez-Alomar, 342 F.3d 1, 5 (1st Cir.2003) (quoting United States v. Caraballo, 200 F.3d 20, 28 (1st Cir.1999)).
Vélez-Soto did not claim that his undischarged state convictions were relevant conduct during his sentencing hearing, nor does he so claim on appeal. Moreover, because the district court accurately held that Vélez-Soto's state sentence for second degree murder did not involve relevant conduct, and therefore
The commentary to § 5G1.3(c) states that in determining whether to impose a concurrent, partially concurrent, or consecutive sentence to an undischarged term of imprisonment, the court "should consider" the following factors "to achieve a reasonable incremental punishment for the instant offense and avoid unwarranted disparity":
U.S.S.G. § 5G1.3 cmt. n. 3(A) (2012).
The sentencing transcript reveals that the district court evaluated the factors enumerated in the commentary to § 5G1.3(c). The district court noted the type and length of Vélez-Soto's state sentence,
Furthermore, the court explicitly addressed the § 3553(a) factors, including Vélez-Soto's prior criminal record, the need to "provide just punishment for the offense,"
Vélez-Soto further argues that a 280-month sentence, which substantially exceeded the Guidelines range of 135 to 168 months, violates the requirement under § 3553(a) that the sentence be "sufficient, but not greater than necessary, to comply with the purposes" of sentencing. 18 U.S.C. § 3553(a). He claims that the district court imposed a substantively unreasonable sentence when it refused to sentence him according to the parties' recommended range of 108 to 120 months, or to vary upwards such that the state and federal sentences would be coterminous and concurrent, and that it erred in failing to properly weigh his history and the nature and circumstances of the offense.
When evaluating the substantive reasonableness of a sentence that is outside the Guidelines range, we "must give due deference to the district court's decision that the § 3553(a) factors, on a whole, justify the extent of the variance. The fact that the appellate court might reasonably have concluded that a different sentence was appropriate is insufficient to justify reversal of the district court." Gall, 552 U.S. at 51, 128 S.Ct. 586. When a sentence deviates from the Guidelines, "[t]he court's reasons for deviation should typically be rooted either in the nature and circumstances of the offense or the characteristics of the offender." United States v. Martin, 520 F.3d 87, 91 (1st Cir.2008). We will uphold a district court's sentence "as long as the court has provided a plausible explanation, and the overall result is defensible." United States v. Innarelli, 524 F.3d 286, 292 (1st Cir.2008).
As stated above, the district court adequately considered the § 3553(a) factors and provided a sufficient explanation for its sentence. The court considered, inter alia, Vélez-Soto's possession of a weapon in the drug conspiracy, the violation of the terms of his bail, his prior criminal conduct, and the request for Vélez-Soto to serve his sentence in a federal facility. If the district court had imposed a 108-month consecutive sentence, the total sentence would have been 312 months, the latter 204 months of which would have been served in a state facility. That within-the-Guidelines sentence would have been far in excess of the sentence imposed, and it would have required Vélez-Soto to serve time in a state facility. The 280-month concurrent sentence amounts to 76 additional months on the federal conviction and allows Vélez-Soto to serve the entirety of his sentence in a federal facility, consistent with his request.
Furthermore, the sentence was based on both the circumstances of the offense and Vélez-Soto's characteristics. The court noted that the 280-month concurrent sentence was necessary to "reflect[ ] the seriousness of the offense," the federal interest in such a "big drug conspiracy," and to "adequately punish" Vélez-Soto who, while on bail, "continued to commit criminal conduct." The court's emphasis on the nature
The district court did not abuse its discretion when it sentenced Vélez-Soto to 280 months' imprisonment on his federal drug charge, to be served concurrently with his state sentence. Because the sentence was procedurally sound and substantively reasonable, we affirm the judgment.
So ordered.