United States v. Bermúdez-Meléndez, 14-2209

• Decision Date: 28 June 2016
• Docket Number: No. 14-2209,14-2209
• Citation: 827 F.3d 160
• Parties: United States of America, Appellee, v. Edgardo L. Bermúdez–Meléndez, Defendant, Appellant.
• Court: U.S. Court of Appeals — First Circuit

827 F.3d 160

United States of America, Appellee

v.Edgardo L. Bermúdez–Meléndez, Defendant, Appellant.

No. 14-2209

United States Court of Appeals, First Circuit.

June 28, 2016

José L. Nieto–Mingo and Nieto Law Offices, San Jose, PR, on brief for appellant.

Rosa Emilia Rodríguez–Vélez, United States Attorney, Nelson Pérez–Sosa, Assistant United States Attorney, Chief, Appellate Division, and Tiffany V. Monrose, Assistant United States Attorney, on brief for appellee.

Before Thompson, Selya and Barron, Circuit Judges.

SELYA, Circuit Judge.

In this sentencing appeal, defendant-appellant Edgardo L. Bermúdez–Meléndez mounts a multifaceted challenge to his upwardly variant sentence for a firearms offense. After careful consideration, we affirm.

I .

Inasmuch as this appeal trails in the wake of a guilty plea, we draw the facts from the non-binding plea agreement (the Agreement), the change-of-plea colloquy, the undisputed portions of the presentence investigation report (PSI Report), and the transcript of the disposition hearing. See United States v. Almonte–Nuñez , 771 F.3d 84, 86 (1st Cir. 2014). On November 27, 2013, Puerto Rico police officers executed a search warrant at the appellant's residence in Guaynabo. Upon their arrival, the appellant fled into a wooded area near the house, jumped off a small cliff, and broke both legs. A subsequent inspection of the fallen man and his possessions revealed quantities of powdered cocaine, crack cocaine, and marijuana, an AK-47 assault rifle, and a collection of magazines and ammunition. More magazines and ammunition, along with a Glock pistol, were found in the appellant's living room.

In due season, a federal grand jury returned a four-count indictment. Counts 1 through 3 charged the appellant with a litany of drug-trafficking crimes, while count 4—the only count in issue here—charged him with possession of a firearm in furtherance of a drug-trafficking crime. See 18 U.S.C. § 924(c)(1)(A). After initially maintaining his innocence, the appellant relented and entered into the Agreement, in which he agreed to plead guilty to count 4 in exchange for the dismissal of the other charges. Among other things, the Agreement memorialized a joint sentencing recommendation of 72 months' immurement.

At the change-of-plea hearing, the district court accepted the appellant's guilty plea to count 4 and ordered the preparation of the PSI Report. In the completed Report, the probation office noted that the statute of conviction required a minimum 60-month term of imprisonment. See 18 U.S.C. § 924(c)(1) ; USSG § 2K2.4(b). It further noted that it had identified no factors demanding an upward variance (but it did not foreclose the possibility of such a variance).

At sentencing, the parties urged the district court to impose the agreed 72-month sentence. The court demurred, concluding that a stiffer sentence was in order. It then meted out a 90-month incarcerative term.¹ This timely appeal ensued.

II .

We pause at the threshold to brush aside the waiver-of-appeal clause contained in the Agreement. That clause conditioned the waiver on the imposition of a sentence in “accordance with the terms and conditions set forth in the Sentence Recommendation provisions of [the Agreement].” The sentence levied by the district court was not within the compass of the Sentence Recommendation provisions. It follows that the waiver-of-appeal clause is a dead letter and does not pretermit this appeal. See , e.g. , United States v. Vargas–García , 794 F.3d 162, 165 n. 2 (1st Cir. 2015).

III .

This brings us to the appellant's asseverational array. It is familiar lore that we review challenges to the reasonableness of a sentence by means of a two-step pavane. See Gall v. United States , 552 U.S. 38, 51, 128 S.Ct. 586, 169 L.Ed.2d 445 (2007) ; United States v. Martin , 520 F.3d 87, 92 (1st Cir. 2008). We begin by examining assignments of procedural error, which include “failing to calculate (or improperly calculating) the Guidelines range, treating the Guidelines as mandatory, failing to consider the § 3553(a) factors, selecting a sentence based on clearly erroneous facts, or failing to adequately explain the chosen sentence—including an explanation for any deviation from the Guidelines range.” Gall , 552 U.S. at 51, 128 S.Ct. 586. Once this hurdle is cleared, we then appraise the substantive reasonableness of the sentence, “tak[ing] into account the totality of the circumstances, including the extent of any variance from the Guidelines range.” Id.

In determining substantive reasonableness, substantial respect is due to the sentencing court's discretion. See id. This deferential approach recognizes that though “[a] sentencing court is under a mandate to consider a myriad of relevant factors ... the weighting of those factors is largely within the court's informed discretion.” United States v. Clogston , 662 F.3d 588, 593 (1st Cir. 2011). Even with respect to an upwardly variant sentence, an appellate court “must give due deference to the district court's decision that the [18 U.S.C.] § 3553(a) factors, on a whole, justify the extent of the variance.” Gall , 552 U.S. at 51, 128 S.Ct. 586.

In carrying out these tasks, our standard of review is for abuse of discretion. See id. ; United States v. Narváez–Soto , 773 F.3d 282, 285 (1st Cir. 2014). We caution, however, that this standard of review is not monolithic: within it, we review conclusions of law de novo and findings of fact for clear error. See Narváez–Soto , 773 F.3d at 285 ; United States v. Walker , 665 F.3d 212, 232 (1st Cir. 2011).

A .

Against this backdrop, we turn first to the appellant's claims of procedural error. To this end, the appellant argues that the district court failed to give an adequate explanation for the sentence imposed and, in the bargain, failed to make an individualized assessment of his history and characteristics.

He adds that the district court mischaracterized his inventory of weapons and ammunition. We deal with these claims of procedural error one by one. Because none of them was raised below, “the plain error standard supplants the customary standard of review.” United States v. Dávila–González , 595 F.3d 42, 47 (1st Cir. 2010).

Review for plain error is not appellant-friendly. That review “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).

1.

The appellant's principal procedural challenge implicates 18 U.S.C. § 3553(c), which obliges a sentencing court to “state in open court the reasons for its imposition of the particular sentence.” This statutory imperative has consistently been “read in a practical, common-sense way,” Dávila–González , 595 F.3d at 48, mindful that the adequacy of a sentencing court's explanation must be judged case by case.

Even so, a sentencing court need not “be precise to the point of pedantry.” United States v. Turbides–Leonardo , 468 F.3d 34, 40 (1st Cir. 2006). To satisfy its burden of explanation, the sentencing court need do no more than identify the main factors behind its decision. See United States v. Sepúlveda–Hernández , 817 F.3d 30, 33 (1st Cir. 2016).

In the case at hand, there is no applicable guideline sentencing range; the statutory mandatory minimum sentence (here, 60 months) is the guideline sentence. See USSG § 2K2.4(b), comment. (n.2); see also Vargas–García , 794 F.3d at 166 ; United States v. Rivera–González , 776 F.3d 45, 49 (1st Cir. 2015). In such a situation—that is, when application of the sentencing guidelines yields a singular guideline sentence rather than a guideline sentencing range—a sentence in excess of the guideline sentence should be treated as an upward variance. See United States v. Oquendo–Garcia , 783 F.3d 54, 56 (1st Cir. 2015). Thus, the sentence imposed below was the functional equivalent of an upward variance of 30 months. This is potentially important because an upwardly variant sentence usually requires a fuller explanation than a guideline sentence. See Gall , 552 U.S. at 50, 128 S.Ct. 586 ; United States v. Montero–Montero , 817 F.3d 35, 37 (1st Cir. 2016).

At the disposition hearing, the district court commented upon the appellant's frequent brushes with the law, the seriousness of the offense of conviction, and the need to promote both deterrence and respect for the law. The court then noted the joint sentencing recommendation² and stated: “I don't think that that is enough considering the nature of the firearms, the amount of ammunition, the kind of magazines, the whole bit. It's an arsenal....”

This explanation is lean, but we think it sufficient to withstand plain error review. After all, the appellant had assembled an impressive array of munitions: an AK-47 assault rifle, at least 11 high-capacity magazines, roughly 270 rounds of ammunition (in various calibers), and a Glock pistol. To make matters worse, he possessed these munitions in close proximity to a trove of illegal drugs. Where—as here—“the record permits a reviewing court to identify both a discrete aspect of an offender's conduct and a connection between that behavior and the aims of sentencing, the sentence is sufficiently explained to pass muster under section 3553(c).” United States v. Fernández–Cabrera , 625 F.3d 48, 54 (1st Cir. 2010).

This conclusion is strengthened by the fact that the appellant himself acknowledged the appropriateness of an upward variance: he agreed to the imposition of a 72-month sentence (an upward variance of 12 months over the guideline sentence). The sentencing court's determination that the gravity and circumstances of the offense of conviction warranted an additional 18 months of imprisonment was not plain error.

Nor is there any basis here for the appellant's suggestion that the district court was obliged to...