United States v. Pantojas-Cruz
| Decision Date | 28 August 2015 |
| Docket Number | No. 14–1665.,14–1665. |
| Citation | 800 F.3d 54 |
| Parties | UNITED STATES of America, Appellee, v. José M. PANTOJAS–CRUZ, Defendant, Appellant. |
| Court | U.S. Court of Appeals — First Circuit |
John H. Cunha, Jr., T. Michael McDonald and Cunha & Holcomb, P.C., on brief for appellant.
Nelson Pérez–Sosa, Assistant United States Attorney, Chief, Appellate Division, and Rosa Emilia Rodríguez–Vélez, United States Attorney, on brief for appellee.
Before TORRUELLA, LYNCH, and THOMPSON, Circuit Judges.
Defendant-appellant José M. Pantojas–Cruz (“Pantojas”) pleaded guilty to being a prohibited person in possession of a firearm in violation of 18 U.S.C. §§ 922(g)(3) and 924(a)(2). He challenges the procedural and substantive reasonableness of his upwardly variant sentence. After careful consideration, we affirm.
Because this appeal follows a guilty plea, we draw the facts from the change-of-plea colloquy, the plea agreement, the Presentence Investigation Report (“PSR”), and the transcript of the sentencing hearing. See United States v. King, 741 F.3d 305, 306 (1st Cir.2014).
On August 18, 2013, Puerto Rico Police Department (“PRPD”) officers responded to a murder scene at the Bellavista sector in Bayamón, Puerto Rico. While at the scene, officers received information that a gray vehicle fled the area at a high rate of speed after gunshots were heard. Shortly after, a PRPD officer observed a gray vehicle driving slowly in the vicinity of the scene, and after noting that neither the driver nor the passenger was wearing a seatbelt—in violation of a Puerto Rico Vehicle and Traffic Law—the officer proceeded to initiate a traffic stop. During the stop, the officer noticed the passenger, later identified to be Pantojas, attempting to conceal what appeared to be a firearm in his groin area. After ordering both individuals out of the vehicle, a pat-down search of Pantojas revealed: a model 23 Glock pistol modified to fire in full automatic capacity loaded with eight rounds of .40 caliber ammunition hidden in his groin area; and a .40 caliber Kahr pistol concealed in his waistband. A subsequent search of the vehicle revealed three Glock magazines loaded with forty-five rounds of .40 caliber ammunition. Later on that same date, Pantojas admitted to Homeland Security Investigations agents that he had smoked marijuana on a daily basis for many years and that both weapons belonged to him.
On August 21, 2013, Pantojas was charged in a two-count indictment. Count One, the count of conviction, charged Pantojas with being a prohibited person in possession of a firearm in violation of 18 U.S.C. §§ 922(g)(3) and 924(a)(2). Count Two charged him with the illegal possession of a machinegun in violation of 18 U.S.C. §§ 922(o ) and 924(a)(2).
Pantojas pleaded guilty to Count One on October 23, 2013, pursuant to a plea agreement. In the plea agreement, the parties calculated a total offense level of seventeen, which resulted from a base offense level of twenty pursuant to U.S.S.G. § 2K2.1(a)(4)(B) and a three-point reduction for acceptance of responsibility pursuant to U.S.S.G. § 3E1.1(a), (b). The parties agreed that Pantojas could request a sentence at the lower end of the applicable Guidelines Sentencing Range (“GSR”), while the government would request a sentence within the GSR. The PSR, which was disclosed to the parties on January 16, 2014, calculated the same total offense level and, based on Pantojas's Criminal History Category I, yielded a GSR of twenty-four to thirty months of imprisonment, a fine range of $5,000 to $50,000, and a supervised release term between one and three years. The PSR also stated that the maximum term of imprisonment for the offense that Pantojas pleaded guilty to was ten years.
The sentencing hearing took place on May 28, 2014. At the hearing, Pantojas stated that he had no objections to the PSR, and noted that he had filed a sentencing memorandum detailing certain sentencing factors he wanted the court to consider, including his upbringing, “which was not one of the most favorable,” the lack of a positive father figure in his life, and his susceptibility to peer pressure. Pantojas argued for a within-the-Guidelines sentence, while the government recommended that Pantojas be sentenced at the high end of the GSR, to thirty months of imprisonment.
After hearing the parties' arguments and Pantojas's allocution, the district court began its consideration of the sentence. It calculated the same total offense level and GSR as the PSR and the parties. The district court then stated that it had considered the factors set forth in 18 U.S.C. § 3553(a). It noted that although Pantojas had no prior convictions, he was arrested previously for possession of marijuana, had smoked marijuana since he was twenty years old,1 and a recent voluntary sample provided by Pantojas yielded positive results to marijuana and Percocet
. The district court also noted that Pantojas was investigated for murder using one of the firearms for which he was charged in this case and that a Commonwealth of Puerto Rico court had found probable cause against him for the murder, for the illegal possession of the weapon, and for pointing and firing the weapon. The court further stated:
The district court ultimately sentenced Pantojas to sixty months of imprisonment—two times the top of his GSR-to be served consecutively with any sentence imposed on Pantojas by the court of the Commonwealth of Puerto Rico in his murder case if found guilty, followed by a term of supervised release of three years.2 This appeal followed.3
Pantojas challenges both the procedural and substantive reasonableness of his sentence. Procedurally, he argues that the district court improperly considered, and relied too heavily on, Puerto Rico's violent crime rate. Pantojas also asserts that, pursuant to Rule 32(h) of the Federal Rules of Criminal Procedure, the district court was required to give him notice of the grounds on which it was contemplating a “departure” from the applicable GSR, and that it failed to do so by not including Puerto Rico's violent crime rate either in the PSR or in the proceedings prior to the sentencing hearing. Furthermore, Pantojas argues that the district court's justification for the sentence it imposed was not proportionate to the degree of variance above the GSR.
Substantively, Pantojas alleges that his sentence was “greater than necessary” and that the district court abused its discretion by not sentencing him to “the agreed-upon plea range.” He also claims that the district court gave too much weight to the circumstances of the offense and not enough weight to his personal history and characteristics. Finally, Pantojas claims that because the district court took into consideration the circumstances of the offense in imposing a sentence consecutive to any sentence that may be imposed by the state court for murder, the district court abused its discretion in further punishing him with an above-the-Guidelines sentence.
Reviewing the record as a whole, each of Pantojas's claims fails, as his sentence is both procedurally sound and substantively reasonable.
We review sentencing decisions imposed under the advisory Guidelines, whether outside or inside the applicable GSR, for reasonableness. United States v. Turbides–Leonardo, 468 F.3d 34, 40 (1st Cir.2006). Generally, we apply the deferential abuse of discretion standard in evaluating the reasonableness of a sentence. Gall v. United States, 552 U.S. 38, 51, 128 S.Ct. 586, 169 L.Ed.2d 445 (2007) ; see also United States v. Del Valle–Rodríguez, 761 F.3d 171, 176 (1st Cir.2014). If a defendant, however, “fails to preserve an objection below, the plain error standard supplants the customary standard of review.” United States v. Dávila–González, 595 F.3d 42, 47 (1st Cir.2010). “Review for plain error entails four showings: (1) that an error occurred (2) which was clear or obvious and which not only (3) affected the defendant's substantial rights, but also (4) seriously impaired the fairness, integrity or public reputation of judicial proceedings.” United States v. Medina–Villegas, 700 F.3d 580, 583 (1st Cir.2012) (quoting United States v. Duarte, 246 F.3d 56, 60 (1st Cir.2001) ). We will not reverse a district court's sentence under this standard unless there is “a reasonable probability that, but for the error, the district court would have imposed a different, more favorable sentence.” Id. (citing United States v. Mangual–García, 505 F.3d 1, 15 (1st Cir.2007) ).
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