United States v. Díaz-Rivera, No. 18-1461

• Decision Date: 20 April 2020
• Docket Number: No. 18-1461
• Citation: 957 F.3d 20
• Parties: UNITED STATES of America, Appellee, v. Henry DÍAZ-RIVERA, Defendant, Appellant.
• Court: U.S. Court of Appeals — First Circuit

957 F.3d 20

UNITED STATES of America, Appellee,

v.Henry DÍAZ-RIVERA, Defendant, Appellant.

No. 18-1461

United States Court of Appeals, First Circuit.

April 20, 2020

Alex Omar Rosa-Ambert, Carolina, PR, on brief for appellant.

Antonio L. Pérez-Alonso, Assistant United States Attorney, with whom W. Stephen Muldrow, United States Attorney, and Mariana E. Bauzá-Almonte, Assistant United States Attorney, Chief, Appellate Division, on brief for appellee.

Before Torruella, Dyk,^* and Thompson, Circuit Judges.

TORRUELLA, Circuit Judge.

Defendant-Appellant Henry Díaz-Rivera ("Díaz") pled guilty to one count of possession with intent to distribute cocaine, in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(C), and one count of using a firearm during and in relation to a drug-trafficking crime, in violation of 18 U.S.C. § 924(c)(1)(A)(i). Díaz now challenges the procedural and substantive reasonableness of his upwardly variant sentence. After careful review, we affirm.

I. Background

Because Díaz pled guilty, we draw the relevant facts from the change-of-plea colloquy, the unchallenged portions of the Presentence Investigation Report ("PSR"), and the sentencing hearing transcript. See United States v. Fernández-Santos, 856 F.3d 10, 14 n.1 (1st Cir. 2017).

A. Facts Surrounding the Offense

On March 24, 2017, Puerto Rico police officers who were patrolling an area in Toa Alta, Puerto Rico observed a vehicle parked on the side of the road. Upon approaching the vehicle, the officers asked the driver -- later identified as Díaz -- for his driver's license and car registration, which he refused to provide. Díaz then attempted to drive away twice but was eventually stopped. During the intervention, an officer noticed that Díaz was holding a small, red-colored zip-lock baggie containing aluminum foil wrapping, which was later determined to contain heroin. When Díaz exited the car, the responding officers saw that he was carrying a firearm, and they arrested him. While searching Díaz incident to the arrest, officers seized from his person a .40-caliber Glock pistol and a magazine containing a total of ten rounds of ammunition. Agents also seized: eighty-six small plastic bags containing less than fifty grams of cocaine; five cellular phones; $572 in cash; a ledger containing names and numbers; a selector switch "chip" used to modify the Glock pistol to fire automatically; forty-one rounds of .40-caliber ammunition; eight rounds of 7.62-caliber ammunition; a part of a firearm and other accessories described as a slide-back plate; 100 empty plastic vials; four red empty aluminum wrappings; and two small empty plastic zip-lock baggies.

B. Procedural History

On March 30, 2017, a federal grand jury sitting in the District of Puerto Rico returned a six-count indictment charging Díaz with possession with intent to distribute cocaine, in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(C) (Count One); possession with intent to distribute heroin, in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(C) (Count Two); carrying and using a firearm during and in relation to a drug-trafficking crime, in violation of 18 U.S.C. § 924(c)(1)(A)(i) (Count Three); carrying and using a machinegun during and in relation to a drug-trafficking crime, in violation of 18 U.S.C. § 924(c)(1) (B)(ii) (Count Four); possession of a machinegun, in violation of 18 U.S.C. § 922(o) (Count Five); and being a convicted felon in possession of a firearm and ammunition, in violation of 18 U.S.C. § 922(g)(1) (Count Six). On July 11, 2017, Díaz pled guilty to Counts One and Three.¹ The plea agreement provided for a total offense level of ten, but the parties did not stipulate as to Díaz's criminal history category. The parties agreed to recommend a sentence of imprisonment of one year for Count One to be served consecutively to the sentence imposed for Count Three. With respect to Count Three, which carries a statutory minimum term of five years of imprisonment, see 18 U.S.C. § 924(c)(1)(A)(i), the parties took into consideration that Counts Two, Four, Five, and Six were going to be dismissed and thus agreed that Díaz would recommend a sentence of no less than nine years of imprisonment and the Government would recommend eleven years of imprisonment. Díaz also agreed to waive his right of appeal if the district court imposed a sentence of twelve years of imprisonment or less,² and he acknowledged that the district court could, in its discretion, impose any sentence within the statutory maximum for each offense.

For Count One, the final PSR, like the plea agreement, calculated a total offense level of ten, which resulted from a base offense level of twelve and a two-level decrease for acceptance of responsibility. Díaz had two prior Puerto Rico convictions: possession of an unlicensed firearm and illegal possession of a firearm (a machinegun). Accordingly, the PSR determined that he had a criminal history category of III, which coupled with the total offense level of ten, yielded a guidelines sentencing range ("GSR") of ten to sixteen months of imprisonment. For Count Three, the PSR found that the guideline sentence was the minimum term of imprisonment required by statute, which was five years pursuant to 18 U.S.C. § 924(c)(1)(A)(i), and that the term had to run consecutively to any other term imposed.

The PSR also listed ten arrests -- all in Puerto Rico - - which did not lead to convictions.³ Two of those arrests related to illegal drug possession, and two others related to the use and/or possession of a firearm.⁴ Additionally, the PSR described Díaz's history of substance abuse, which spanned approximately fourteen years and consisted of the use of marijuana, Percocet

, Xanax, and cocaine. Díaz filed several objections to the PSR, most of which are not relevant to this appeal. Díaz initially objected to the inclusion of some arrests for which there were no available or translated documents that verified them, and he also objected to some arrests as too "remote to the instant offense." Díaz ultimately withdrew the objections at the sentencing hearing.

In his sentencing memorandum, Díaz acknowledged that he "ha[d] been living for several years, including the day of the arrest in the instant case, with the illness of addiction to controlled substances, including heroin and cocaine, among others." He similarly acknowledged that he had "previous convictions at state level and arrests at state level." Díaz requested a sentence of no more than 120 months of imprisonment, which, in his view, was "sufficient and not more than necessary."

C. Sentencing

At the sentencing hearing, defense counsel re-emphasized Díaz's battle with drug addiction and requested a total sentence of 120 months of imprisonment. In accordance with the plea agreement, the Government urged the district court to sentence Díaz to a total of twelve years of imprisonment.

As to Count One, the district court adopted the PSR's calculations of the total offense level, the criminal history category, and the GSR (ten to sixteen months of imprisonment). As to Count Three, the court noted that the guideline sentence was the statutory minimum term of imprisonment of sixty months, to be served consecutively to the term of imprisonment for Count One. The court also pointed out that the firearm involved in the offense had been modified to shoot automatically. It then listed Díaz's prior arrests, reciting the PSR's explanation of their disposition.

The court then stated that it had considered the sentencing factors set forth in 18 U.S.C. § 3553(a) and referred to Díaz's age, unemployment, and history of drug use. Afterwards, it proceeded to list the items that were seized from Díaz. Finally, after considering the nature of the charges that were dismissed pursuant to the plea agreement, the court sentenced Díaz to an upwardly variant sentence of 180 months of imprisonment (sixteen months for Count One and 164 months for Count Three). The court explained that "[b]ecause of the seriousness of the charges that ha[d] been dismissed against Mr. Díaz [under the plea agreement],⁵ his extensive prior criminal record, and the need for deterrence in Puerto Rico," the sentences the parties had requested did not "reflect the seriousness of Mr. Díaz's offenses, d[id] not promote respect for the law, d[id] not protect the public from further crimes by Mr. Díaz, and d[id] not address the issues of deterrence and punishment."

After the court pronounced the sentence, defense counsel objected to it as procedurally and substantively unreasonable. He elaborated that he objected to the "findings" and "analysis" of United States v. Flores-Machicote, 706 F.3d 16 (1st Cir. 2013), and asserted that "certainty of punishment ha[s] a deterrent effect, but not the amount of time." He further asked the court to reconsider its sentence, specifically requesting that it impose the Government's requested sentence instead. He acknowledged that Díaz had "a criminal history," referring to the Puerto Rico arrests, and asserted that the fact that some of those cases had not been re-filed after having been dismissed on probable cause or speedy trial grounds "should not be taken against [Díaz]." The court denied Díaz's request and confirmed that "one of the things that [it] took into consideration" was the fact that the crimes charged during Díaz's arrests were either dismissed or no probable cause was found. Defense counsel again generally objected to the sentence as both procedurally and substantively unreasonable. This timely appeal followed.

II. Discussion

Díaz challenges both the procedural and substantive reasonableness of his sentence. In sentencing appeals, appellate review is bifurcated. United States v. Ruiz-Huertas, 792 F.3d 223, 226 (1st Cir. 2015). We must first examine claims of procedural error, such as "failing to calculate (or improperly calculating) the Guidelines range, treating the Guidelines as mandatory, failing to consider the § 3553(a) factors, selecting a sentence...