United States v. Delgado-Sanchez, 021717 FED1, 15-2262

Court:United States Courts of Appeals, Court of Appeals for the First Circuit
Attorney:Thomas J. O'Connor, Jr. for appellant. Mainon A. Schwartz, Assistant United States Attorney, with whom Rosa Emilia Rodríguez-Vélez, United States Attorney, and Mariana E. Bauzá-Almonte, Assistant United States Attorney, Chief, Appellate Division, were on brief, for appellee.
Judge Panel:Before Howard, Chief Judge, Torruella and Kayatta, Circuit Judges.
Opinion Judge:KAYATTA, Circuit Judge.
Party Name:UNITED STATES OF AMERICA, Appellee, v. OSCAR DELGADO-SÁNCHEZ, Defendant, Appellee.
Case Date:February 17, 2017
Docket Nº:15-2262
 
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UNITED STATES OF AMERICA, Appellee,

v.

OSCAR DELGADO-SÁNCHEZ, Defendant, Appellee.

No. 15-2262

United States Court of Appeals, First Circuit

February 17, 2017

         APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF PUERTO RICO [Hon. Francisco A. Besosa, U.S. District Judge]

          Thomas J. O'Connor, Jr. for appellant.

          Mainon A. Schwartz, Assistant United States Attorney, with whom Rosa Emilia Rodríguez-Vélez, United States Attorney, and Mariana E. Bauzá-Almonte, Assistant United States Attorney, Chief, Appellate Division, were on brief, for appellee.

          Before Howard, Chief Judge, Torruella and Kayatta, Circuit Judges.

          KAYATTA, Circuit Judge.

         Oscar Delgado-Sánchez ("Delgado") pled guilty to one count of being a prohibited person in possession of a firearm in violation of 18 U.S.C. § 922(g)(1). Delgado now appeals his upwardly variant sentence of seventy-two months in prison. He contends that his guidelines sentencing range was miscalculated because the district court erroneously found at least one of his prior convictions to be for a "crime of violence." He also takes issue with what he claims were procedural missteps at sentencing, and he argues that the district court based his above-guidelines sentence on factors that should not have been considered. For the following reasons, we disagree and affirm Delgado's sentence in full.

         I. Background

         In March 2015, police obtained a search warrant for Delgado's residence after they observed him carrying an AK-47 outside of his home. When officers arrived to execute the search, Delgado allowed them inside, confessed that he had the firearm, and told the officers where they could find an additional magazine and ammunition. The police arrested Delgado and seized the weapon, which was capable of automatic fire and which was loaded with one magazine containing twenty-nine rounds of ammunition. They also seized one more magazine and sixteen additional rounds of ammunition. Delgado pled guilty to being a prohibited person in possession of a firearm in violation of 18 U.S.C. § ; 922(g)(1).

         The U.S. Probation Office's presentence investigation report assigned Delgado a criminal history score of seven, the sum of the criminal history points attributable to three prior convictions. The first conviction, worth three criminal history points under U.S.S.G. § 4A1.1(a), arose out of a 2008 arrest in San Lorenzo, Puerto Rico, for violating Article 404 of the Puerto Rico Controlled Substances Law, P.R. Laws Ann. tit. 24, § 2404. The second conviction, also worth three criminal history points under U.S.S.G. § 4A1.1(a), arose out of Delgado's 2009 arrest in Las Piedras, Puerto Rico. In that case, Delgado pled guilty to one count of violating Article 198 of the Puerto Rico Penal Code (Robbery) ("Article 198"), P.R. Laws Ann. tit. 33, § 4826, and three counts of violating Article 5.15 of the Puerto Rico Weapons Law (Discharging or Pointing Firearms) ("Article 5.15"), P.R. Laws Ann. tit. 25, § 458n(a). The presentence report explained that "[a]ccording to certified court documents, " Delgado and an accomplice "through the use of violence and intimidation" and "using a dangerous weapon . . . robbed $60.00 in cash . . . in the immediate presence of [a person], " and Delgado "aimed [a] firearm at [the person] and announced the robbery."

         Delgado's third conviction, worth one criminal history point pursuant to U.S.S.G. § 4A1.1(e), followed a guilty plea to three counts of robbery under Article 198 and three counts of unlawfully discharging or pointing a firearm in violation of Article 5.15. According to the presentence report, "certified court documents" revealed that these offenses arose out of two separate robberies and a shooting in Yabucoa on March 24, 2009. First, Delgado "robbed a cash register, $413[] in cash and between 12 and 15 cigarette boxes from [a store] through the use of violence and/or intimidation in the immediate presence of [a person]. He also robbed $177 in cash belonging to [another person] through the use of violence and/or intimidation." Second, at 4:15 P.M., Delgado, "in possession of a black 9mm firearm, " robbed a business of all of the proceeds from the day's sales and some horse products totaling about $800. During the robbery, Delgado asked an individual victim where he could find the safe and instructed that individual to "hit the safe in order to open it and give me all the money." Finally, "[a]ccording to certified court documents, " Delgado "shot 4 to 5 rounds into the air from a black 9mm firearm" at 5:00 P.M.

         The presentence report also alerted the parties and the court that probation was aware that Delgado had been arrested on at least four other occasions.

         First, the report indicated that Delgado had been arrested in San Lorenzo in July 2008 and charged with two counts of violating the Puerto Rico Weapons Law for possessing and carrying without a license a loaded weapon with an obliterated serial number. These charges, probation reported, were dismissed in a preliminary hearing upon a finding of no probable cause.

         Second, the report stated that Delgado was arrested in Yabucoa in November 2008 on grounds that (1) he committed two violations of the Puerto Rico Controlled Substances Law, and (2) he possessed two loaded firearms, one of which he used to rob a bar of cash and goods "through the use of violence and intimidation" in violation of the robbery statute and the Weapons Law. The Controlled Substances Law charges were dismissed for lack of probable cause, and, because Delgado was detained for more than thirty days without a preliminary hearing, the robbery and firearms charges were dismissed pursuant to Rule 64(n)(5) of the Puerto Rico Rules of Criminal Procedure, P.R. Laws Ann. tit. 34, App. II, § 64(n)(5).

         Third, the report detailed another November 2008 arrest in Yabucoa on charges that Delgado violated two provisions of the Weapons Law by carrying two loaded firearms without a license, one of which had an obliterated serial number. These charges were dismissed under the Commonwealth's Rule 64(n)(4), id. § 64(n)(4), because Delgado was not tried within 120 days after his arraignment.

         Fourth and finally, the report alerted the parties that probation was aware that Delgado was facing pending charges stemming from a December 2013 arrest. In that case, Delgado was charged with discharging or pointing a firearm in violation of Article 5.15 and unlicensed carrying/using of a firearm in violation of Article 5.04 of the Weapons Law, along with Aggravated Robbery in violation of Article 190(e) of the Puerto Rico Penal Code. The report noted that Delgado's trial on these charges was scheduled for early September 2015.

         In a separate section of the presentence report, probation concluded that Delgado should be subject to U.S.S.G. § 2K2.1(a)(3), which provides that when an individual is convicted of an offense involving certain types of firearm and was previously convicted of a felony "crime of violence, " his base offense level is twenty-two. Probation did not specify which of Delgado's previous convictions served as the basis for the "crime of violence" designation. Subtracting three levels based on Delgado's demonstrated acceptance of responsibility, probation proposed that Delgado's total offense level should be set at nineteen.

         In the nearly two months that passed between the date he was served with the presentence report and the date he appeared for sentencing, Delgado lodged no objections to the presentence report. Rather, he submitted a sentencing memorandum limited to urging the court to engage in a downward variance on account of a chronic medical condition (the nature of which is not germane to this appeal). When Delgado appeared before the district court for sentencing on September 24, 2015, his attorney informed the court that he had nothing to say on Delgado's behalf "other than what I have expressed in my sentencing memorandum." Delgado, too, declined the court's offer to speak on the record.

         The district court determined that the presentence report's calculations were correct: Delgado's base offense level was twenty-two "because Mr. Delgado has been convicted of possessing a firearm which is described in Title 26, United States Code, Section 5845(a) after having been convicted for a crime of violence, robbery and brandishing a firearm during the robbery." With adjustments for acceptance of responsibility, his total offense level was nineteen. And he was in Criminal History Category IV with a criminal history score of eight--the seven points described above plus one additional point that Delgado earned when a jury convicted him at some point in the intervening months on the charges arising from his December 2013 arrest. The advisory guidelines, the court found, thus recommended a sentence of forty-six to fifty-seven months' imprisonment,...

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