776 F.3d 45 (1st Cir. 2015), 13-1620, United States v. Rivera-Gonzalez

Docket Nº:13-1620
Citation:776 F.3d 45
Opinion Judge:SELYA, Circuit Judge.
Attorney:Edwin E. Leon-Leon on brief for appellant. Rosa Emilia Rodr
Judge Panel:Before Howard, Selya and Thompson, Circuit Judges.
Case Date:January 20, 2015
Court:United States Courts of Appeals, Court of Appeals for the First Circuit

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776 F.3d 45 (1st Cir. 2015)



KERMIT RIVERA-GONZÁLEZ, Defendant, Appellant

No. 13-1620

United States Court of Appeals, First Circuit

January 20, 2015

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Edwin E. Leon-Leon on brief for appellant.

Rosa Emilia Rodríguez-Vélez, United States Attorney, Nelson Pérez-Sosa, Assistant United States Attorney, Chief, Appellate Division, and Tiffany V. Monrose, Assistant United States Attorney, on brief for appellee.

Before Howard, Selya and Thompson, Circuit Judges.


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SELYA, Circuit Judge.

Defendant-appellant Kermit Rivera-Gonzá lez challenges his 84-month sentence for a firearms offense. After careful consideration, we affirm.



Since this appeal trails in the wake of a guilty plea, we draw the facts from the plea agreement, the change-of-plea colloquy, the undisputed portions of the presentence investigation report (PSI Report), and the transcript of the disposition hearing. See United States v. Almonte-Nuñez, 771 F.3d 84, 86 (1st Cir. 2014); United States v. Del Valle-Rodríguez, 761 F.3d 171, 173 (1st Cir. 2014). Beginning in 2007 and continuing into 2010, the defendant engaged in a conspiracy to distribute controlled substances at various drug distribution points in San Juan, Puerto Rico. In carrying out his role in the conspiracy, he possessed and used firearms.

After a federal grand jury charged the defendant with various drug-trafficking offenses, the government filed a supplemental information containing two additional counts arising out of the defendant's possession, at the time of his apprehension, of four kilograms of marijuana (supplemental count 1) and four firearms (supplemental count 2). Although the defendant initially maintained his innocence, he soon entered into a non-binding plea agreement (the Agreement) with the government. See Fed. R. Crim. P. 11(c)(1)(B).

Pursuant to the Agreement, the defendant pleaded guilty to count 1 of the indictment (charging him with conspiring to possess with intent to distribute various controlled substances within 1,000 feet of a protected location, see 21 U.S.C. § § 841(a)(1), 846, 860), supplemental count 1 (charging him with possessing marijuana with intent to distribute, see id. § 841(a)(1)), and supplemental count 2 (charging him with possessing firearms in furtherance of a drug-trafficking offense, see 18 U.S.C. § 924(c)(1)(A)). The remaining five counts contained in the indictment were to be dismissed.

The Agreement made clear the parties' expectation that the guideline sentencing range (GSR) for count 1 would be 108 to 135 months and that the GSR for supplemental count 1 would be 6 to 12 months. These anticipated GSRs were based on the assumption that the defendant would be placed in criminal history category (CHC) I. The parties agreed that, should this assumption materialize, they would jointly

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recommend a 120-month sentence for count 1 and a concurrent 6-month sentence for supplemental count 1. With respect to supplemental count 2, they agreed to recommend the mandatory minimum 60-month term of immurement, to run consecutively to the sentences on the underlying drug charges. The parties' recommendation of a 60-month consecutive term for the gun charge was not contingent upon the sentencing court's CHC designation.

Some months after accepting the defendant's guilty plea, the district court received the PSI Report, which grouped the drug charges. See U.S.S.G. § 3D1.2. Using CHC I, the PSI Report set the GSR at 87 to 108 months for the grouped counts. The Report made only a passing reference to the gun charge, noting that the statute of conviction required a minimum 60-month consecutive term of imprisonment. See 18 U.S.C. § 924(c)(1); U.S.S.G. § 2K2.4(b).

At the disposition hearing, the district court, without objection, adopted the guideline calculations limned in the PSI Report. The government acknowledged that grouping had resulted in a lower GSR for the drug counts but nevertheless pressed for the imposition of the previously agreed 120-month sentence on count 1 and a 6-month sentence on supplemental count 1. The district court eschewed the non-binding sentencing recommendations contained in the Agreement and imposed concurrent within-the-range sentences of 96 months on count 1 and 12 months on supplemental count 1.

The court then took up the gun charge. It again turned a deaf ear to the parties' joint recommendation and levied an 84-month sentence on supplemental count 2 to run consecutively to the other sentences.1 This timely appeal ensued.



On appeal, the defendant abjures any challenge to either the district court's guideline calculations or the sentences imposed on the drug counts. Instead, he focuses with laser-like intensity on the reasonableness (procedural and substantive) of the 84-month sentence for the gun charge.

We review challenges to the reasonableness of a sentence in line with a two-step pavane. See United States v. King, 741 F.3d 305, 307 (1st Cir. 2014); United States v. Martin, 520 F.3d 87, 92 (1st Cir. 2008). We begin by examining allegations of procedural error. See Gall v. United States, 552 U.S. 38, 51, 128 S.Ct. 586, 169 L.Ed.2d 445 (2007). If no procedural error is found, we then assess the substantive reasonableness of the sentence. See id. In carrying out these tasks, our review is for abuse of discretion. See id.; United States v. Narváez-Soto, 773 F.3d 282, 285, *5 (1st Cir. 2014) . Within this rubric, we review conclusions of law de novo and findings of fact for clear error. See Narváez-Soto, 773 F.3d at 285 United States v. Walker, 665 F.3d 212, 232 (1st Cir. 2011).


Preliminary Matters

Even though the Agreement contained a waiver-of-appeal clause, the defendant's appeal is properly before us. Such a clause only precludes appeals falling

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within its scope. See Almonte-Nuñez, 771 F.3d at 88; United States v. Murphy-Cordero, 715 F.3d 398, 400 (1st Cir. 2013). Here, the defendant waived his right of appeal to the extent that he was subsequently " sentenced in accordance with the terms and conditions set forth in the Sentence Recommendation provisions" of the Agreement. The sentence imposed on the gun charge was not in accordance with the terms and conditions of the Sentence Recommendation provisions, which memorialized the parties' joint recommendation of a 60-month term of immurement. Because of this digression from what the parties had proposed, the waiver-of-appeal clause does not bar this appeal.

A few words about a second preliminary matter will help to put our merits discussion in perspective. The statute of conviction provides in pertinent part, with exceptions not relevant here, that any person 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). This term of imprisonment shall not " run concurrently with any other term of imprisonment imposed on the person, including any term of imprisonment imposed for the . . . drug trafficking crime during which the firearm was . . . possessed." Id. § 924(c)(1)(D)(ii).

The general rule is that convictions (like this one) that carry a statutory mandatory minimum term of immurement designed to run consecutively to any sentence on the underlying crime are to be sentenced " independent of the guideline sentence on any other count." U.S.S.G. § 5G1.2(a), cmt. (n.2(A)). Consecutive sentences for violations of 18 U.S.C. § 924(c) are, moreover, to be calculated without regard to chapters three and four of the sentencing guidelines. See U.S.S.G. § 2K2.4(b).

Even so, a mandatory minimum sentence under section 924(c) is not wholly independent of the sentencing guidelines. Rather, the statutory mandatory minimum sentence is deemed to be the guideline sentence.2

See id. § 2K2.4(b); United States v. Millán-Isaac, 749 F.3d 57, 67 (1st Cir. 2014). We hold, therefore, that since a mandatory minimum sentence...

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