United States v. Narváez-Soto

Decision Date03 December 2014
Docket NumberNo. 13–1963.,13–1963.
Citation773 F.3d 282
PartiesUNITED STATES of America, Appellee, v. Edwin E. NARVÁEZ–SOTO, Defendant, Appellant.
CourtU.S. Court of Appeals — First Circuit

OPINION TEXT STARTS HERE

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.

SELYA, Circuit Judge.

Defendant-appellant Edwin E. Narváez–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. Cintrón–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. See18 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 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. SeeUSSG § 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 Report, and the district court adopted the guideline calculations contained therein. The government argued for an above-the-range sentence. In response, defense counsel “implore[d] the [c]ourt to set [its] feelings and passions aside” and sentence the defendant at or near the upper end of the GSR. Following a thorough explanation of its reasoning, the court varied upward and imposed a 240–month term of immurement on count 1, to be followed by a 120–month term on count 2. This timely appeal ensued.

On appeal, the defendant challenges both the procedural and substantive reasonableness of his sentence. We review sentencing challenges in two steps. See United States v. Walker, 665 F.3d 212, 232 (1st Cir.2011); United States v. Martin, 520 F.3d 87, 92 (1st Cir.2008). First, we resolve any procedural questions. See Gall v. United States, 552 U.S. 38, 51, 128 S.Ct. 586, 169 L.Ed.2d 445 (2007). If no procedural error looms, we proceed to address the question of substantive reasonableness. See id.

With respect to each step of this pavane, we employ the deferential abuse of discretion standard of review. See Gall, 552 U.S. at 51, 128 S.Ct. 586; Martin, 520 F.3d at 92. This standard is not monolithic: within it, we review matters of law (including the sentencing court's interpretation and application of the guidelines) de novo and findings of fact for clear error. See Walker, 665 F.3d at 232.

As the opening salvo in his multifaceted procedural attack on his count 1 sentence, the defendant takes aim at the district court's consideration of Puerto Rico's crime rate in its sentencing calculus. He contends that the pervasiveness of crime in a particular community is not a valid sentencing factor. This contention fails.

What the court actually said during sentencing was that it viewed the defendant's crimes “as much more serious [in Puerto Rico] than if they had occurred in a less violent society.” In weighing the impact associated with a particular crime, a sentencing court may consider the pervasiveness of that type of crime in the relevant community. See United States v. Santiago–Rivera, 744 F.3d 229, 232–33 (1st Cir.2014); United States v. Flores–Machicote, 706 F.3d 16, 23 (1st Cir.2013) (collecting cases). This proposition follows logically from the fact that [d]eterrence is widely recognized as an important factor in the sentencing calculus.” Flores–Machicote, 706 F.3d at 23. Thus, “the incidence of particular crimes in the relevant community appropriately informs and contextualizes the ... need for deterrence.” Id. After all, a heightened need for deterrence may well exist in a community where violent crime is running rampant. See id.

Relatedly, the defendant questions the factual underpinnings of the district court's observations regarding the crime rate in Puerto Rico. He cites statistical information (in particular, a 20082009 crime data report from the Federal Bureau of Investigation) to impugn the court's observation that “in Puerto Rico crime far exceeds the known limits on the mainland.” 2 In the defendant's view, rape and robbery are no more common in Puerto Rico than in certain other parts of the United States.

The point, however, is not that some other communities may also be plagued with violent crime but, rather, that such crime is a real problem in Puerto Rico. The very statistics that the defendant cites bear witness to this grim reality.

We add, moreover, that the court's references to the incidence of rape and robbery in Puerto Rico, when read in context, provide scant cause for concern. The court noted that [a]rmed carjackings and rapes are, unfortunately, pervasive throughout the island.” Given materials referenced by the court, that statement appears to be true. In the same vein, the court recounted that 65 carjacking cases were filed in the district court in the 2012 fiscal year. That estimate has not been challenged.3

We will not paint the lily. Even if certain types of violent crime are more prevalent in other places than the court realized, that does not detract from the court's reasoned determination, predicated on its experience, that the incidence of violent crime—and, particularly, gun-related violent crime—is an acute problem in Puerto Rico. Cf. Martin, 520 F.3d at 92 (acknowledging that sentencing courts possess “cumulative experience garnered through the sheer number of district court sentencing proceedings that take place day by day”). On the record before us, we discern no abuse of discretion in the sentencing court's consideration of Puerto Rico's crime rate in formulating the defendant's sentence.

Next, the defendant asserts that the district court failed to ground the sentence in the nature and circumstances of his offense. Specifically, he argues that the court gave too much weight to impermissible considerations (such as the perceived leniency of Puerto Rico's courts) and relied too little on the individual characteristics of the defendant.

We have recognized that [i]t is possible for a sentencing judge to focus too much on the community and too little on the individual.” Flores–Machicote, 706 F.3d at 24. What happened here, however, does not cross into that forbidden terrain. At the conclusion of the parties' presentations at sentencing, the district court observed, [o]ther than two child pornography cases ... this is the worst criminal case that I have had.” The court proceeded to identify certain aspects of the crime that it found particularly appalling. These included driving the victim to a secluded area devoid of any light, raping her in spite of her verbal protests and physical struggles, and allowing...

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    • United States
    • U.S. Court of Appeals — First Circuit
    • November 7, 2023
    ... ... concurred with that statement, opining that "crime in ... Puerto Rico far exceeds the known limits on the mainland ... Even the Circuit Court of Appeals has recognized that." ... Indeed we have. See, e.g. , United States v ... Narvaez-Soto , 773 F.3d 282, 286 (1st Cir. 2014) ... ("[Violent] crime is a real problem in Puerto ... Rico."); Zapata-Vazquez , 778 F.3d at 23 ... (firearm offenses are pervasive in Puerto Rico) ...          Flores ... possessed the loaded machine gun, additional ... ...
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    ...of the presentence investigation report (PSI Report), and the transcript of the disposition hearing. See United States v. Narváez-Soto, 773 F.3d 282, 284 (1st Cir. 2014). Beginning in September of 2015, defendant-appellant Brent Hercules participated in a conspiracy to transport drugs into ......

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