804 F.3d 75 (1st Cir. 2015), 13-1885, United States v. Velez-Soto

Docket Nº:13-1885
Citation:804 F.3d 75
Opinion Judge:LIPEZ, Circuit Judge.
Party Name:UNITED STATES OF AMERICA, Appellee, v. FRANCISCO J. VÉLEZ-SOTO, a/k/a Fresh, Defendant, Appellant
Attorney:Jean C. LaRocque and Shea and LaRocque, LLP on brief for appellant. Rosa Emilia Rodríguez-Velez, United States Attorney, Nelson Pérez-Sosa, Assistant United States Attorney, Chief, Appellate Division, and John A. Matthews II, Assistant United States Attorney, on brief for appellee.
Judge Panel:Before Howard, Chief Judge, Torruella and Lipez, Circuit Judges.
Case Date:October 14, 2015
Court:United States Courts of Appeals, Court of Appeals for the First Circuit
SUMMARY

In federal court, Appellant entered a guilty plea to conspiracy to distribute controlled substances in a multi-defendant drug conspiracy case. Pending sentencing in his federal case, Appellant pled guilty to three state law murder and weapons violations. Appellant was sentenced to 204 months’ imprisonment in state court. The federal district court subsequently sentenced Appellant to 280 months’... (see full summary)

 
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804 F.3d 75 (1st Cir. 2015)

UNITED STATES OF AMERICA, Appellee,

v.

FRANCISCO J. VÉLEZ-SOTO, a/k/a Fresh, Defendant, Appellant

No. 13-1885

United States Court of Appeals, First Circuit

October 14, 2015

As corrected October 22, 2015.

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

Jean C. LaRocque and Shea and LaRocque, LLP on brief for appellant.

Rosa Emilia Rodríguez-Velez, United States Attorney, Nelson Pérez-Sosa, Assistant United States Attorney, Chief, Appellate Division, and John A. Matthews II, Assistant United States Attorney, on brief for appellee.

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

OPINION

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LIPEZ, Circuit Judge.

This is an appeal from a sentence following Francisco J. Vélez-Soto's guilty plea in a multi-defendant drug conspiracy case. While on bail pending sentencing in his federal case, appellant pled guilty to three state law crimes: second degree murder and two weapons law violations. Appellant contends that the district court's decision to impose a 280-month federal sentence to run concurrently with his state sentence was procedurally unsound and substantively unreasonable. Finding the sentence proper in all respects, we affirm.

I.

A. Factual Background

Given that this appeal follows a guilty plea, the facts are derived from the presentence investigation report (PSR), the change of plea colloquy, and the transcript of the sentencing hearing. See United States v. Whitlow, 714 F.3d 41, 42 (1st Cir. 2013).

Beginning in 2000, and continuing until the return of the federal indictment, Vélez-Soto participated in a conspiracy to distribute controlled substances in the Candelaria, El Carmen, and Kennedy Public Housing Projects in Puerto Rico. Vélez-Soto

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served as a manager and enforcer for the drug trafficking organization. As a manager, he distributed narcotics to sellers for subsequent sale and distribution and was responsible for collecting the proceeds from drug sales and paying the street sellers. As an enforcer, he carried and possessed firearms in furtherance of the drug trafficking activities.

B. Procedural Background

On July 7, 2010, a Puerto Rico federal grand jury returned a six-count indictment charging Vélez-Soto and 102 co-conspirators with conspiracy to distribute controlled substances in violation of 21 U.S.C. § § 841(a)(1), 846, and 860 (Count One), among other offenses. Vélez-Soto entered a guilty plea to Count One pursuant to Federal Rule of Criminal Procedure 11(c)(1)(C). The plea agreement recommended as appropriate a prison term of 108 to 120 months.

On May 16, 2011, pending his federal sentencing, Vélez-Soto was charged in Commonwealth court with murder and weapons violations. He pled guilty to second degree murder and two counts of weapons law violations. On February 19, 2013, he was sentenced to 204 months' imprisonment: fifteen years and one day on the murder charge, to be served consecutively with one-year terms for each weapons violation.

On March 4, 2013, Vélez-Soto appeared for a pre- sentencing hearing on the federal drug conspiracy charge. The district court rejected Vélez-Soto's plea agreement, noting that Vélez-Soto breached it when he committed second degree murder while out on bail pending his federal sentencing. The court gave Vélez-Soto until March 20, 2013 to withdraw his guilty plea, which he declined to do.

The district court sentenced Vélez-Soto on June 18, 2013. Based on a total offense level of 31 and a criminal history category of III, the district court noted the guideline range of 135 to 168 months.1 The government requested a sentence " on the lower end" of the 108- to 120-month range specified in the plea agreement. Defense counsel requested a sentence of 108 months to run concurrently with his state sentence, and he asked that the court direct that the sentence be served in a federal facility. The district court sentenced Vélez-Soto to 280 months imprisonment, to be served concurrently with the 204-month sentence imposed in his state criminal case.2

Vélez-Soto filed a timely notice of appeal, asserting that the district court's sentence was procedurally unsound and substantively unreasonable.

II.

A. Standard of Review

We review federal criminal sentences imposed under the advisory Guidelines for abuse of discretion. Gall v. United States, 552 U.S. 38, 51...

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