U.S. v. Dávila-González

• Decision Date: 10 February 2010
• Docket Number: No. 08-2575.,08-2575.
• Citation: 595 F.3d 42
• Court: U.S. Court of Appeals — First Circuit
• Parties: UNITED STATES of America, Appellee, v. Noel DÁVILA-GONZÁLEZ, Defendant, Appellant.

595 F.3d 42

UNITED STATES of America, Appellee, v. Noel DÁVILA-GONZÁLEZ, Defendant, Appellant.

No. 08-2575.

United States Court of Appeals, First Circuit.

Submitted December 29, 2009.

Decided February 10, 2010.

Joseph C. Laws, Jr., Federal Public Defender, and Vivianne M. Marrero, Assistant Federal Public Defender, on brief for appellant.

Rosa Emilia Rodriguez-Vélez, United States Attorney, Nelson Pérez-Sosa, Chief, Appellate Division, and Thomas F. Klumper, Assistant United States Attorney, on brief for appellee.

Before SELYA, BOUDIN and HOWARD, Circuit Judges.

SELYA, Circuit Judge.

On August 13, 2008, defendant-appellant Noel Dávila-González entered a straight plea of guilty to charges of (i) aiding and abetting the laundering of money derived from unlawful activities and (ii) conspiracy to commit money laundering. See 18 U.S.C. §§ 2, 1956(a)(1)(B), 1956(h). The district court sentenced him to serve a 78-month incarcerative term. The appellant now challenges his sentence, citing a number of supposed procedural errors. Discerning no merit in the appellant's claims, we affirm.

When a sentencing appeal follows a guilty plea, "we glean the relevant facts from the change-of-plea colloquy, the unchallenged portions of the presentence investigation report (PSI Report), and the record of the disposition hearing." United States v. Vargas, 560 F.3d 45, 47 (1st Cir.2009). In following this praxis, we rehearse only those facts that are needed to put the claims of error into context.

On October 15, 2004, the appellant called a known member of a drug cartel to arrange for the delivery of "two bundles." Unfortunately for the appellant, the person to whom he reached out doubled in brass as a confidential informant for the Federal Bureau of Investigation (FBI). Over the course of several calls, most of which were recorded, the appellant and the informant agreed to meet and consummate the transaction.

This meeting took place at a Burger King restaurant in Puerto Rico on October 18, 2004. At that time the appellant effected delivery of the "two bundles" to the informant. Subsequent analysis revealed that the "two bundles" contained $204,440 in United States currency.

Rather than springing the trap then and there, the FBI continued its investigation for nearly three years. On May 3, 2007, a federal grand jury sitting in the District of Puerto Rico returned a six-count indictment against the appellant and others. The authorities arrested the appellant in Tampa, Florida, on May 9, 2008. Following his rendition to Puerto Rico, the appellant entered a plea of guilty to the three counts against him (one of which was dismissed at sentencing).

The district court convened the disposition hearing on November 13, 2008. The court deemed applicable a six-level sentencing enhancement after finding that "the defendant knew or believed that any of the laundered funds were the proceeds of, or were intended to promote ... an offense involving the manufacture, importation, or distribution of a controlled substance or a listed chemical." USSG § 2S1.1(b)(1)(B)(i). It also ruled that, for sentencing purposes, it would hold the appellant responsible for only the cash contained in the two bundles ($204,440), even though the conspiracy as a whole had laundered a much greater sum (approximately $1,839,208).

The court then proceeded to deny the appellant's request for a downward role-in-the-offense adjustment. See USSG § 3B1.2(b) (authorizing a two-level downward adjustment if the defendant played a minor role in the offense). Making a series of other calculations, the court settled upon a total offense level of 25 and a criminal history category of III. In this venue, the appellant does not challenge any of these rulings but, rather, accepts the district court's calculation of the guideline sentencing range (GSR): 70-87 months.

During the sentencing proceedings, defense counsel briefly mentioned that the appellant was a former heroin addict who, since committing the offense of conviction, had rehabilitated himself. This information led to the following exchange:

The Court: So what are you suggesting?

Defense Counsel: I'm suggesting that the Court depart downward because this ...

The Court: Absolutely not. On the basis of what?

To this question, defense counsel explicated, in some detail, that during the years intervening between the offense conduct and the arrest, the appellant had checked himself into a rehabilitation facility, moved to Florida, forsook his criminal ways, and obtained gainful employment. Counsel argued that these developments suggested that a below-the-range sentence would be an appropriate outcome. The district court disagreed, stating:

I'm going to deny the role request that you're making. I am going to deny the departure request you're going to make, and I'm going to deny any other sentence than the advisory guideline proposed here.

There is nothing on this record under 3553(a) that moves me, moves me to consider any other sentence than the sentence proposed as advisory by the guidelines for cases like this.

In the end, the court imposed a mid-range sentence of 78 months in prison. At the conclusion of the hearing, it asked whether either side had "[a]nything else?" The only rejoinder was from defense counsel, who requested that the sentence be served in "the Tampa area."

In this appeal, the appellant argues that the sentencing court committed reversible error by (i) presuming the reasonableness of the GSR; (ii) neglecting sufficiently to explain the sentence imposed; and (iii) failing to consider mitigating factors favoring a below-the-range sentence. We approach these claims of error mindful that, in the wake of the Supreme Court's landmark decision in United States v. Booker, 543 U.S. 220, 245, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), we have encouraged the district courts to follow a specifically delineated roadmap when sentencing under the now-advisory federal sentencing guidelines:

[A] sentencing court ordinarily should begin by calculating the applicable guideline sentencing range; then determine whether or not any departures are in order; then mull the factors delineated in 18 U.S.C. § 3553(a) as well as any other relevant considerations; and, finally, determine what sentence, whether within, above, or below the guideline sentencing range, appears appropriate.

United States v. Pelletier, 469 F.3d 194, 203 (1st Cir.2006) (citing United States v Jiménez-Beltre, 440 F.3d 514, 518-19 (1st Cir.2006) (en banc)).

The court below did not follow this roadmap. That omission complicates appellate review, but in this instance it does not frustrate that review. After all, we have treated this roadmap as helpful, but not obligatory. Thus, a sentencing court may leave the roadmap to one side and proceed in some other sequence as long as the findings are made and all the requisite factors are addressed. See, e.g., United States v. Pacheco, 489 F.3d 40, 44 (1st Cir.2007) (explaining that district court may combine steps or vary the order). This is such a case.

In reviewing a sentence, we seek to ensure that it is both procedurally sound and substantively reasonable. United States v. Martin, 520 F.3d 87, 92 (1st Cir.2008). Here, substantive reasonableness is not in issue; the appellant assigns only procedural error. That taxonomy includes "failing to calculate (or improperly calculating) the Guidelines range, treating the Guidelines as mandatory, failing to consider the 18 U.S.C. § 3553(a) factors, selecting a sentence based on clearly erroneous facts, or failing to adequately explain the chosen sentence." United States v. Stone, 575 F.3d 83, 89 (1st Cir.2009) (quoting United States v. Innarelli, 524 F.3d 286, 292 (1st Cir.2008)).

The appellant's claims of error, like all claims of procedural unreasonableness in sentencing, are reviewed, generally, for abuse of discretion. United States v. Carrasco-De-Jesús, 589 F.3d 22, 26-27 (1st Cir.2009); Martin, 520 F.3d at 92. Yet, when a defendant fails to preserve an objection below, the plain error standard supplants the customary standard of review. See, e.g., United States v. Almenas, 553 F.3d 27, 36 (1st Cir.2009); United States v. Mangual-Garcia, 505 F.3d 1, 15 (1st Cir.2007).

In the case at hand, the appellant did not interpose an objection as to any of the procedures that he now seeks to challenge. This default is particularly glaring in view of the district court's specific inquiry at the conclusion of the disposition hearing. Consequently, plain error review obtains. "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. Duarte, 246 F.3d 56, 60 (1st Cir.2001).

Against this backdrop we proceed to address the appellant's claims of error one by one.

The first issue deals with the weight that the district court attached to the GSR. The touchstone for our analysis is the decision in Gall v. United States, 552 U.S. 38, 128 S.Ct. 586, 169 L.Ed.2d 445 (2007). There, the Supreme Court admonished that even though the federal sentencing guidelines "should be the starting point and the initial benchmark" for constructing a sentence, the sentencing court "may not presume that the Guidelines range is reasonable." Id. at 49-50, 128 S.Ct. 586.

Citing the Court's follow-on decision in Nelson v. United States, ___ U.S. ___, 129 S.Ct. 890, 172 L.Ed.2d 719 (2009) (per curiam), the appellant labors to convince us that the court below transgressed this tenet. In particular, he assails the court's statement that it was "going to deny any other sentence than the advisory guideline proposed" and its summary rejection of his entreaty to depart downward. In the appellant's view, these actions demonstrate the sentencing court's embrace of the very...