United States v. Benítez-BeltráN, 17-1161

Citation892 F.3d 462
Decision Date13 June 2018
Docket NumberNo. 17-1161,17-1161
Parties UNITED STATES of America, Appellee, v. Luis Daniel BENÍTEZ-BELTRÁN, Defendant, Appellant.
CourtUnited States Courts of Appeals. United States Court of Appeals (1st Circuit)

Jessica E. Earl, Research and Writing Specialist, Eric Alexander Vos, Federal Public Defender, and Vivianne M. Marrero, Assistant Federal Public Defender, Supervisor, Appeals Section, on brief for appellant.

John A. Mathews II, Assistant United States Attorney, Rosa Emilia Rodríguez-Vélez, United States Attorney, and Thomas F. Klumper, Assistant United States Attorney, Acting Chief, Appellate Division, on brief for appellee.

Before Torruella, Lipez, and Barron, Circuit Judges.

BARRON, Circuit Judge.

Luis Daniel Benítez-Beltrán ("Benítez") appeals the 120-month prison sentence that he received after pleading guilty to being, in violation of 18 U.S.C. § 922(g)(1), a prohibited person in possession of a firearm. Benítez contends that the District Court erred by classifying his prior conviction for attempted murder under Puerto Rico law as a "crime of violence" that triggers an increase in his base offense level pursuant to § 2K2.1(a)(4) of the United States Sentencing Guidelines. Benítez also contends that the District Court's upward variance from his advisory sentencing range under the Guidelines was procedurally unsound and that his sentence is substantively unreasonable. We affirm the sentence.

I.

During the execution of a search warrant at Benítez's residence in 2013, Puerto Rico police agents found a loaded revolver hidden behind the drawer of a nightstand. The following day, the federal government charged Benítez, who is a convicted felon, with one count of being a prohibited person in possession of a firearm, in violation of 18 U.S.C. § 922(g)(1).

In November of 2014, Benítez pleaded guilty to this count pursuant to a plea agreement.1 Benítez, who was then serving a ninety-year sentence for a 2014 conviction under Puerto Rico law for aggravated robbery and related weapons law violations,2 was sentenced for this federal conviction in January of 2017.

A probation officer prepared a presentence report ("PSR") based on the November 2016 edition of the Sentencing Guidelines. The PSR determined that § 2K2.1(a)(4) of the Guidelines applied. That guideline establishes the base offense level that applies to a defendant convicted of unlawful possession of a firearm if the defendant committed that offense after having been convicted of a felony that qualifies as a "crime of violence." Applying that guideline, the PSR determined that Benítez's base offense level was twenty, when, in the absence of that guideline's application, his base offense level would have been fourteen. See U.S. Sentencing Guidelines Manual § 2K2.1(a)(6) (2016).

The PSR concluded that Benítez had a prior conviction that qualified as a "crime of violence" due to his 1998 conviction for attempted murder under Puerto Rico law. The PSR stated that this prior offense so qualified under what is known as the "force clause" of the Sentencing Guidelines' definition of a "crime of violence."3

The PSR also applied a four-level enhancement under § 2K2.1(b)(4)(B) to Benítez's offense level because the firearm involved in Benítez's § 922(g) offense had an obliterated serial number. Finally, the PSR reduced Benítez's offense level by three levels pursuant to § 3E1.1 due to his acceptance of responsibility.

In sum, the PSR calculated Benítez's total offense level to be twenty-one. Because the PSR assigned Benítez a criminal history category of V, the PSR determined that Benítez's advisory range for his term of imprisonment under the Guidelines was seventy to eighty-seven months.

After hearing from the parties, the District Court adopted the PSR's Guidelines calculation. In doing so, the District Court concluded that Benítez had "only one prior conviction" for a "crime of violence," namely his 1998 attempted murder conviction under Puerto Rico law. The District Court then sentenced Benítez to the statutory maximum prison term of 120 months, see 18 U.S.C. § 922(a)(2), which was a term of imprisonment just under three years above the upper end of the advisory sentencing range under the Guidelines. The District Court ruled that the sentence would run consecutively to any sentence that Benítez was then serving, which would include his ninety-year sentence for his Puerto Rico conviction for aggravated robbery. Benítez objected to the upward variance and then appealed the sentence.

II.

Benítez first challenges the District Court's conclusion that he had a prior conviction for a "crime of violence" under § 2K2.1(a)(4). Our review of whether Benítez's prior conviction for attempted murder under Puerto Rico law qualifies as a "crime of violence" under the Guidelines is de novo. See United States v. Steed, 879 F.3d 440, 445 (1st Cir. 2018).

A.

The term "crime of violence" in § 2K2.1(a)(4) has the same meaning as it has in the § 4B1.2 career-offender guideline. U.S. Sentencing Guidelines Manual § 2K2.1, cmt. n.1 (2016). Section 4B1.2(a) defines a "crime of violence" to be any offense punishable by more than one year of imprisonment that either "has as an element the use, attempted use, or threatened use of physical force against the person of another" (the so-called force clause) or is one of several enumerated crimes, including "murder."

Benítez contends that his prior conviction for attempted murder under Puerto Rico law does not qualify as a "crime of violence." He does so on the ground that this offense, as defined at the time of his conviction, neither falls within § 4B1.2(a)'s force clause nor matches one of the offenses enumerated in that guideline's definition of a "crime of violence."

We need not address Benítez's argument concerning the force clause. As we explain, his attempted murder conviction is for an offense that matches one of the guideline definition's enumerated offenses. See United States v. Ball, 870 F.3d 1, 5 (1st Cir. 2017) ("We may affirm the district court's sentence if any one of the ... ways that an offense can constitute a crime of violence ... applies here.").

We use a "categorical approach" to determine whether the offense for which a defendant was previously convicted matches an expressly enumerated offense under § 4B1.2(a). United States v. Castro-Vazquez, 802 F.3d 28, 35 (1st Cir. 2015) (quoting Descamps v. United States, 570 U.S. 254, 133 S.Ct. 2276, 2283, 186 L.Ed.2d 438 (2013) ). Under that categorical approach, a prior conviction qualifies as one for a "crime of violence" so long as the elements of the prior offense encompass no more conduct than do the elements of the "generic" version of an offense that the guideline expressly enumerates. Id. (quoting Descamps, 570 U.S. at 260, 133 S.Ct. at 2283 ).

To begin our comparative analysis of the elements of Benítez's offense of attempted murder under Puerto Rico law and the generic version of that offense, we set to one side the fact that his prior conviction was for attempted murder rather than simply "murder." That way, we may first focus on the way that Puerto Rico law defined the offense of "murder" at the time of his conviction, so that we may determine whether that definition makes that offense of "murder" a match with one of the enumerated offenses in § 4B1.2(a).

B.

As we have noted, § 4B1.2(a) does list "murder" among the expressly enumerated offenses that qualify as a "crime of violence." So, we must determine whether the generic version of that offense matches the way that Puerto Rico defined that offense when Benítez was convicted of attempting to commit that crime. If the generic version of "murder" is not such a match, then Benítez's conviction for attempted murder obviously does not match an enumerated offense.

The parties agree that, at the time of Benítez's conviction for attempted murder, Puerto Rico defined "murder" as "the killing of a human being with malice aforethought." Pueblo v. Lucret Quiñones, 11 P.R. Offic. Trans. 904, 929 (P.R. 1981) (quoting P.R. Laws Ann. tit. 33, § 4001 (1974) ). Benítez's sole argument that the Puerto Rico offense of "murder" at the time of his conviction encompassed more conduct than the generic version of that offense is the following. He asserts that the Puerto Rico offense of "murder" required "purposeful or knowing conduct," whereas, he says, the generic version of "murder" requires "conduct evincing reckless or depraved indifference to dangers." And, Benítez goes on to contend, in consequence of that difference between the mens rea element of the way Puerto Rico defined "murder" and the mens rea element of the generic version of that offense, the Puerto Rico offense of "murder" criminalized conduct that the generic version of the offense did not.

We, however, do not agree. Benítez bases his assertion on the surprising contention that the mens rea of "purpose" and the mens rea of "knowledge" are less strict than the mens rea of "recklessness" and the mens rea of "depraved indifference." But Benítez offers no authority to support that contention, and there is good reason to think that the opposite would be the case. Cf. Model Penal Code § 2.02(5) ("When recklessness suffices to establish an element, such element also is established if a person acts purposely or knowingly.").

Nor has Benítez persuasively identified any case in which Puerto Rico applied its "murder" statute to encompass more conduct than the generic version of the offense, even accepting his description of the mens rea for "murder" under Puerto Rico law at the time of his conviction and the mens rea for the generic version of the offense. Under the categorical approach, however, there must be a "realistic probability" that Puerto Rico would have applied its "murder" statute at the relevant time to encompass conduct that the generic definition of "murder" does not criminalize in order for us to conclude that the Puerto Rico offense is broader. Moncrieffe v. Holder, 569 U.S. 184, 133 S.Ct. 1678, 1685, 185 L.Ed.2d 727 (2013)...

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