United States v. Soto-Rivera

• Decision Date: 22 January 2016
• Docket Number: No. 14–1216.,14–1216.
• Parties: UNITED STATES of America, Appellee, v. Anthony SOTO–RIVERA, Defendant, Appellant.
• Court: U.S. Court of Appeals — First Circuit

811 F.3d 53

UNITED STATES of America, Appellee,

v.Anthony SOTO–RIVERA, Defendant, Appellant.

No. 14–1216.

United States Court of Appeals, First Circuit.

Jan. 22, 2016.

Johnny Rivera–González for appellant.

Tiffany V. Monrose, Assistant United States Attorney, with whom Rosa Emilia Rodríguez–Vélez, United States Attorney, and Nelson Pérez–Sosa, Assistant United States Attorney, were on brief, for appellee.

Before THOMPSON, HAWKINS,^* and BARRON, Circuit Judges.

THOMPSON, Circuit Judge.

This appeal calls for us to consider the district judge's determination that appellant Anthony Soto–Rivera ("Soto–Rivera") should be sentenced as a Career Offender because he committed a "crime of violence" as defined by the United States Sentencing Guidelines ("U.S.S.G." or "Guidelines"). The issue before us is narrow, and so is our ruling. Taking this case just as it has been presented to us—meaning we hold the parties to their concessions and decline to speculate on the possible merit of other arguments that might have been (but weren't) made—we conclude that Soto–Rivera's particular crime of conviction does not qualify as a "crime of violence" under the Guidelines. Accordingly, Soto–Rivera may not be sentenced as a Career Offender.

BACKGROUND

The facts, generally speaking, are neither complicated nor disputed. We recite only those necessary to decide the issues presented by the parties.

For reasons not germane to the legal issues here, Soto–Rivera found himself under arrest, and the arresting officers found a handgun and ammunition in his possession. This was a problem for him, as it turns out that Soto–Rivera had a previous felony conviction on his record.

Soto–Rivera soon faced a two-count indictment in the Puerto Rico district court. Count One charged him with illegally possessing a "firearm and ammunition" in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2), statutes which make it illegal for convicted felons to have guns or ammo. Count Two gave more detail about Soto–Rivera's firearm, describing it as a "machinegun, that is a Glock Model 23, .40 caliber ... modified to shoot automatically more than one shot, without manual reloading, by a single function of the trigger," which violated 18 U.S.C. §§ 922(o )'s and 924(a)(2)'s general prohibition against possessing machineguns.¹

Although he entered an initial plea of not guilty, rather than stand trial Soto–Rivera entered into a Plea Agreement with the government. Pursuant to their Agreement, Soto–Rivera agreed to plead guilty to Count One's charge of illegally possessing a "firearm and ammunition," with Count Two falling by the wayside.

The Plea Agreement addressed the length of the prison sentence Soto–Rivera could expect to receive, something that is heavily influenced by various provisions in the Sentencing Guidelines. The now-advisory Guidelines are "a system under which a set of inputs specific to a given case (the particular characteristics of the offense and offender) yield[s] a predetermined output (a range of months within which the defendant could be sentenced)." Peugh v. United States, ––– U.S. ––––, 133 S.Ct. 2072, 2079, 186 L.Ed.2d 84 (2013). We commend those readers interested in a general overview of how the Guidelines work to the succinct and informative rundown in United States v. Serrano–Mercado, 784 F.3d 838 (1st Cir.2015).

For our purposes today, it is enough to know that the Guidelines take into account any past crimes a defendant has been convicted of, with the idea being that "[t]he more severe the criminal history," the lengthier the sentence. Serrano–Mercado, 784 F.3d at 840. A defendant who is over 18 at the time he commits a "felony that is either a crime of violence or a controlled substance offense," and who "has at least two prior felony convictions of either a crime of violence or a controlled substance offense," is a Career Offender. U.S.S.G. § 4B1.1(a). A Career Offender is considered to have the most severe criminal history provided by the Guidelines. Id. § 4B1.1(b). The practical effect is that a Career Offender generally receives a longer sentence for a particular crime (which, remember, must be either a "crime of violence" or a "controlled substance offense") than a non-Career Offender would get for that same crime.

So, to figure out whether a particular defendant is a Career Offender, it's necessary to know first whether that defendant is being sentenced following a conviction for a crime of violence or a controlled substance offense. If he is, the next question to answer is whether that defendant "has at least two prior felony convictions of either a crime of violence or a controlled substance offense." Id. § 4B1.1(a). Towards that end, a defendant and the government might stipulate in a plea agreement as to which (and how many) crimes a defendant has committed in the past.

But the Plea Agreement here—which seems to assume that felon in possession is a crime of violence—is silent in that regard. Instead, Soto–Rivera and the government calculated potential sentence lengths both with and without considering him to be a Career Offender. The Plea Agreement indicates that Soto–Rivera faced 77–96 months in prison if he was found to be a Career Offender, and some shorter amount of time if he turned out not to be one.²

Further, Soto–Rivera conceded in the Plea Agreement that the government would have proven at trial that he had been caught with a firearm "modified to fire automatically, that is, as a machine gun." He also admitted that he knew about the Glock's modifications, and that he already had a prior felony conviction on his record when he was caught with the gun. A district judge, after questioning Soto–Rivera at a change of plea hearing, accepted his guilty plea after finding it to be "knowing and voluntary," as well as "supported by an independent basis in fact...."

When it came time for sentencing, Soto–Rivera did not object to being classified as a Career Offender. Indeed, working off the 77–96 month Career Offender range the parties calculated in the Plea Agreement, his own attorney asked for a 77–month sentence. The government went the other way and asked for a top-of-the-range sentence of 96 months.

The sentencing judge stated (without objection) that two of Soto–Rivera's past convictions were "for the manufacture, delivery or possession with intent to distribute or to deliver controlled substances[,] and conspiracy to do that." In the judge's view, these two crimes were "controlled substance offenses" counting towards Career Offender status. The judge then stated in conclusory fashion that Soto–Rivera's latest conviction for felon in possession of a firearm "is considered a crime of violence." Taking into account Soto–Rivera's two prior controlled substance convictions, the judge announced he "is considered a career offender."

Further, though the parties had come up with a Career Offender range of 77 to 96 months, the sentencing judge's calculation differed. He pegged the Guidelines range as between 92 and 115 months.³

Taking into account the circumstances of the crime and Soto–Rivera's criminal history, the sentencing judge found that the parties' recommended Guidelines range (77–96 months) "does not reflect the seriousness of the offense, does not promote respect for the law, does not protect the public from further crimes by [Soto–Rivera] and does not address the issues of deterrence and punishment." Instead, the sentencing judge concluded that the middle of the 92–155 month range he had calculated would be appropriate, and sentenced Soto–Rivera to 108 months behind bars.

This timely appeal followed.

STANDARD OF REVIEW

Soto–Rivera did not object to the district court treating him as a Career Offender before, at, or following sentencing. Yet this is exactly the issue he raises on appeal, as he says that he shouldn't have been sentenced as a Career Offender.

Usually, Soto–Rivera's failure to object in the district court would lead us to find the issue forfeited and we would review for plain error only. But the government has declined to make a forfeiture argument. In fact, at oral argument it explicitly called for us to apply "de novo review."

So, in accordance with our precedent and the government's own request, we will review the issue as if it had been properly preserved. See United States v. Tapia–Escalera, 356 F.3d 181, 183 (1st Cir.2004) (declining to apply plain error review to a forfeited argument where the government failed to request plain error review); see also United States v. Paulino–Guzman, 807 F.3d 447, 450 n. 5 (1st Cir.2015) (reviewing the substantive reasonableness of the appellant's sentence for abuse of discretion, despite the appellant's forfeiture of any objection at the district court, because the government did not seek plain error review on appeal).

"We review the district court's interpretation and application of the sentencing guidelines de novo ...." United States v. Tavares, 705 F.3d 4, 24 (1st Cir.2013) (quoting United States v. Cortés–Cabán, 691 F.3d 1, 26 (1st Cir.2012) ). Soto–Rivera's specific challenge is to the sentencing judge's determination that he is a Career Offender because the crime to which he pleaded guilty—felon in possession of a firearm—is a crime of violence within the meaning of the Guidelines. Figuring out whether the Guidelines define a particular offense as a crime of violence "poses a purely legal question," so we review that particular issue de novo, too. United States v. Velázquez, 777 F.3d 91, 94 (1st Cir.2015).

ANALYSIS

A.

This appeal is all about Soto–Rivera's sentence, not his conviction. We must determine whether being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1) is a "crime of violence" under the Career Offender provisions in the Guidelines.⁴ Soto–Rivera says that, thanks to an opinion handed down by the Supreme Court while his appeal was pending, Johnson v. United States, ––– U.S. ––––, 135 S.Ct. 2551, 192 L.Ed.2d 569 (2015), his admitted possession of a...