773 F.3d 282 (1st Cir. 2014), 13-1963, United States v. Narvaez-Soto

Docket Nº:13-1963
Citation:773 F.3d 282
Opinion Judge:SELYA, Circuit Judge.
Party Name:UNITED STATES OF AMERICA, Appellee, v. EDWIN E. NARV
Attorney:Jonathan G. Mermin and Preti, Flaherty, Beliveau & Pachios, LLP on brief for appellant. Rosa Emilia Rodr
Judge Panel:Before Thompson, Selya and Lipez, Circuit Judges.
Case Date:December 03, 2014
Court:United States Courts of Appeals, Court of Appeals for the First Circuit
SUMMARY

Defendant pleaded guilty to carjacking resulting in serious bodily injury and carriage of a firearm during and in relation to a crime of violence. After a disposition hearing, the district court varied upward and imposed a 240-month term of immurement on the first count to be followed by a 120-month term on the second count. Defendant appealed, challenging both the procedural and substantive... (see full summary)

 
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Page 282

773 F.3d 282 (1st Cir. 2014)

UNITED STATES OF AMERICA, Appellee,

v.

EDWIN E. NARVÁEZ-SOTO, Defendant, Appellant

No. 13-1963

United States Court of Appeals, First Circuit

December 3, 2014

Page 283

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

Jonathan G. Mermin and Preti, Flaherty, Beliveau & Pachios, LLP 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.

Before Thompson, Selya and Lipez, Circuit Judges.

OPINION

Page 284

SELYA, Circuit Judge.

Defendant-appellant Edwin E. Narvá ez-Soto challenges his upwardly variant sentence. After careful consideration, we affirm.

Inasmuch as his appeal follows a guilty plea, we draw the facts from the change-of-plea colloquy, the uncontested portions of the presentence investigation report (PSI Report), and the transcript of the disposition hearing. See United States v. Cintron-Echautegui, 604 F.3d 1, 2 (1st Cir. 2010); United States v. Santos, 357 F.3d 136, 138 (1st Cir. 2004). On December 12, 2011, the defendant and an accomplice spotted a woman talking on a cellphone in a parking lot, followed her car, and eventually carjacked it. The two men abducted the woman, stole her belongings, and -- over the course of at least an hour -- took her to two banks to make cash withdrawals. All the while, the men terrorized their victim with gory tales of their previous maraudings.

The victim's nightmare worsened when, after the withdrawal of funds was accomplished, the defendant left his accomplice at a restaurant and departed with the victim and her car. Following some exploration, the defendant found a secluded spot that was to his liking. There, he ordered the woman to undress. He then raped her. Later, the defendant allowed the victim to call her father to reassure him (falsely) that everything was fine.1

Once the defendant resumed driving, a police cruiser became interested in the vehicle and started trailing it, lights flashing. Although the defendant stopped the car for a moment, he changed his mind and sped away (almost hitting the police officers). The officers fired several shots at the runaway car, but did not stop it. After a chase, the defendant abandoned the vehicle, left his victim behind, and fled on foot.

In due course, the defendant turned himself in to federal authorities. A federal grand jury sitting in the District of Puerto Rico indicted the defendant on two counts. Count 1, which carried a maximum sentence of 25 years, charged carjacking resulting in serious bodily injury. See 18 U.S.C. § 2119(2). Count 2, which carried a mandatory minimum and consecutive sentence of 7 years and a maximum sentence of up to life imprisonment, charged

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carriage of a firearm during and in relation to a crime of violence. See id. § 924(c)(1).

After some preliminary skirmishing (not relevant here), the defendant entered a straight guilty plea to both counts. Following customary practice, the district court directed the preparation of the PSI Report.

For count 1, the PSI Report started with a base offense level of 20. See U.S.S.G. § 2B3.1(a). It then recommended a series of adjustments: a four-level upward adjustment because the victim sustained serious bodily injury in the form of sexual assault, see id. § 2B3.1(b)(3)(B); a four-level upward adjustment because the victim was abducted to facilitate the commission of the offense, see id. § 2B3.1(b)(4)(A); a two-level upward adjustment because the offense involved a carjacking, see id. § 2B3.1(b)(5); a two-level upward adjustment because the defendant recklessly created a substantial risk of death or serious bodily injury while fleeing from the police, see id. § 3C1.2; and a three-level downward adjustment for acceptance of responsibility, see id. § 3E1.1. Cumulatively, these adjustments brought the offense level to 29. Coupled with the defendant's criminal history category (III), this offense level yielded a guideline sentencing range (GSR) of 108-135 months.

With respect to count 2, the PSI Report noted that the offense of conviction was " precluded from the guidelines" and carried a 7-year mandatory minimum sentence. Moreover, any sentence imposed on count 2 had to run consecutively to whatever term of imprisonment was imposed on count 1.

At the disposition hearing, no one objected to the PSI...

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