856 F.3d 174 (1st Cir. 2017), 16-1695, United States v. De-Jesus

Docket Nº:16-1695
Citation:856 F.3d 174
Opinion Judge:SELYA, Circuit Judge.
Party Name:UNITED STATES OF AMERICA, Appellee, v. JOS
Attorney:Elizabeth A. Billowitz on brief for appellant. Rosa Emilia Rodr
Judge Panel:Before Howard, Chief Judge, Selya and Lynch, Circuit Judges.
Case Date:May 05, 2017
Court:United States Courts of Appeals, Court of Appeals for the First Circuit
SUMMARY

Appellant entered a straight guilty plea to possession of firearms by a convicted felon and possession of machine guns for possessing two seized firearms. The sentencing court considered the second firearm as an aggravating factor in imposing an upwardly variant sentence of seventy-two months. Appellant challenged his sentence on appeal. The First Circuit affirmed, holding (1) the district court... (see full summary)

 
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Page 174

856 F.3d 174 (1st Cir. 2017)

UNITED STATES OF AMERICA, Appellee,

v.

JOSÉ MATOS-DE-JESÚ S, Defendant, Appellant

No. 16-1695

United States Court of Appeals, First Circuit

May 5, 2017

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF PUERTO RICO. Hon. Aida M. Delgado-Colón, U.S. District Judge.

Elizabeth A. Billowitz on brief for appellant.

Rosa Emilia Rodríguez-Vélez, United States Attorney, Mariana E. Bauzá -Almonte, Assistant United States Attorney, Chief, Appellate Division, and Francisco A. Besosa-Martí nez, Assistant United States Attorney, on brief for appellee.

Before Howard, Chief Judge, Selya and Lynch, Circuit Judges.

OPINION

SELYA, Circuit Judge.

With respect to some firearms charges, the sentencing guidelines provide that if the offense of conviction involves three or more guns, the defendant's offense level is to be enhanced by a specified number of levels. See U.S.S.G. § 2K2.1(b)(1). Here, the offenses of conviction involved two firearms, and the sentencing court, recognizing that the guideline enhancement was inapplicable, considered the second firearm as an aggravating factor in imposing an upwardly variant sentence.

In this appeal, defendant-appellant José Matos-de-Jesú s argues, inter alia, that the sentencing guidelines already account for the presence of both guns and, therefore, that the sentencing court erred in considering his possession of the second gun as part of the groundwork for the upward variance. Discerning no error, we affirm.

The facts are straightforward. In October of 2015, Puerto Rico police pulled over the appellant's car (which the appellant was driving) after noticing a problem with the license plate. When a passenger opened the glove compartment to retrieve the registration, the officers spotted at least one loaded Glock magazine. When queried, the appellant admitted that he did not have a firearms permit, and the officers ordered him out of the car. As he stepped out, they removed a Glock pistol from his waistband. The gun had been " chipped," that is, modified to fire automatically.

After a vehicle search, see United States v. Panitz, 907 F.2d 1267, 1271 (1st Cir. 1990) (discussing " vehicle exception" to warrant requirement), the police discovered a second Glock pistol (also " chipped" ), four loaded high-capacity magazines, and more than 100 loose rounds of ammunition. During the ensuing arrest, the appellant threatened to kill one of the arresting officers upon his release.

In due course, a federal grand jury sitting in the District of Puerto Rico handed up an indictment charging the appellant with one count of possession of firearms by a convicted felon, see 18 U.S.C. § 922(g)(1), and one count of possession of machine guns, see id. § 922( o ). Notably, each count of the indictment referenced the appellant's possession of both of the seized firearms. The appellant entered a straight guilty plea to both counts.

At sentencing, the court heard arguments of counsel and the appellant's allocution. Without objection, it set the appellant's total offense level at 19, assigned him to criminal history category IV, and calibrated his guideline sentencing range at 46 to 57 months. After mulling the sentencing factors limned in 18 U.S.C. § 3553(a), the court varied upward and imposed a 72-month term of immurement. It explained that the upward variance reflected in significant part the appellant's possession of not one, but two, guns. The court added, though, that the upwardly variant sentence also took into...

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