United States v. Román-Díaz

• Decision Date: 07 April 2017
• Docket Number: No. 15-2355,15-2355
• Parties: UNITED STATES of America, Appellee, v. Elvin ROMÁN-DÍAZ, Defendant, Appellant.
• Court: U.S. Court of Appeals — First Circuit

853 F.3d 591

UNITED STATES of America, Appellee,

v.Elvin ROMÁN-DÍAZ, Defendant, Appellant.

No. 15-2355

United States Court of Appeals, First Circuit.

April 7, 2017

Barry S. Pollack and Pollack Solomon Duffy LLP , Boston, MA, on brief for appellant.

Rosa Emilia Rodríguez-Vélez , United States Attorney, Mariana E. Bauzá Almonte , Assistant United States Attorney, Chief, Appellate Division, and Thomas F. Klumper , Assistant United States Attorney, Senior Appellate Counsel, on brief for appellee.

Before Lynch, Selya and Kayatta, Circuit Judges.

SELYA, Circuit Judge.

Defendant-appellant Elvin Román-Díaz asserts that the sentencing court erred in "departing" from one criminal history category (CHC) to another without notice or an opportunity to be heard. He further asserts that the sentencing court erred in ordering his federal sentence to run consecutive to an undischarged state sentence. Finding no departure and no abuse of discretion in the imposition of the challenged consecutive sentence, we affirm.

I. BACKGROUND

A summary of pertinent events suffices to lend perspective. We draw the facts from the plea agreement (the Agreement), the change-of-plea colloquy, the undisputed portions of the presentence investigation report (PSI Report), and the sentencing transcript. See United States v. Dávila-González , 595 F.3d 42, 45 (1st Cir. 2010) ; United States v. Dietz , 950 F.2d 50, 51 (1st Cir. 1991).

During 2012, the appellant and others engaged in a conspiracy to distribute controlled substances in and around Ponce, Puerto Rico. The appellant functioned as an enforcer for the drug ring and also stored drugs and weapons for it. While the conspiracy was velivolant, a high-school student (Juan Ruiz-Vega) was shot and killed with a rifle owned by a member of the drug ring.

On July 24, 2013, a federal grand jury sitting in the District of Puerto Rico handed up a two-count indictment charging the appellant with conspiring to possess with intent to distribute in excess of 280 grams of cocaine base (crack cocaine) and detectable amounts of cocaine, heroin, and marijuana, in violation of 21 U.S.C. §§ 841(a)(1) and 846 (count one), and aiding and abetting in the possession of a firearm in furtherance of a drug-trafficking crime, in violation of 18 U.S.C. § 924(c) (count two). After some skirmishing, not relevant here, the appellant pled guilty to both counts pursuant to the Agreement.

In the Agreement, the appellant stipulated to handling, as part of the conspiracy, at least 112 grams but less than 196 grams of crack cocaine. The parties agreed that this drug weight corresponded to a base offense level of twenty-eight for count one, see USSG § 2D1.1, and that a three-level credit for acceptance of responsibility was warranted, see id. § 3E1.1. The parties further agreed to recommend a sixty-month sentence on count one and a consecutive sixty-month mandatory minimum sentence on count two. Finally, the parties agreed to recommend that the aggregate federal sentence be served concurrently with an undischarged 1,000-year state sentence previously imposed for convictions related to the Ruiz-Vega murder (which the parties considered to be relevant conduct, see id. § 1B1.3(a)).¹

The Agreement contained no stipulation as to either the appellant's CHC or his anticipated guideline sentencing range (GSR). The Agreement's offense level and sentencing recommendations, though, offer some indication that the parties held out the hope that the appellant would be placed in CHC I.

After accepting the appellant's plea, the district court ordered the probation office to prepare the PSI Report. When received, the report recommended that the court apply the murder cross-reference, see id. § 2D1.1(d)(1), on the ground that the Ruiz-Vega murder took place in the course of the conspiracy. Accepting this recommendation had the effect of increasing the appellant's adjusted offense level from twenty-five to forty. See id. § 2A1.1. Combined with a recommended CHC of III,² this recasting yielded a GSR of 360-480 months for count one. See id. § 5G1.1(a).

With respect to count two, the PSI Report was straightforward. It recommended — as had the parties — the statutory minimum term of sixty months' imprisonment. See 18 U.S.C. § 924(c)(1)(A)(i) ; USSG § 2K2.4(b) ; see also United States v. Rivera-González , 776 F.3d 45, 49 (1st Cir. 2015) (explaining that the statutory minimum sentence is, in such circumstances, the guideline sentence).

The district court convened the disposition hearing on September 24, 2015. The appellant beseeched the court to follow the sentencing framework laid out in the Agreement and sentence him to two consecutive sixty-month incarcerative terms (a total of 120 months' imprisonment), to run concurrently with his state sentence for the convictions related to the Ruiz-Vega murder. The prosecutor concurred.

The district court determined that the Ruiz-Vega murder did not comprise relevant conduct and, thus, refused to apply the murder cross-reference. The court then determined, based on the parties' stipulation as to drug weight, that the base offense level was twenty-six. See USSG § 2D1.1(c)(7).³ The court noted, though, that this stipulated drug weight underrepresented the appellant's actual complicity. After crediting the appellant for acceptance of responsibility, the court set his total offense level at twenty-three.

Turning to the other side of the grid, the court determined that the appellant should be placed in CHC IV (a determination that added criminal history points for the state convictions related to the Ruiz-Vega murder because that murder was not deemed relevant conduct). The appellant initially objected to this recasting of the murder cross-reference, but retracted his objection once the court explained that, despite the higher CHC, the elimination of the murder cross-reference would result in a substantially lower GSR (seventy to eighty-seven months).⁴

The court proceeded to sentence the appellant to a top-of-the-range incarcerative term on count one (eighty-seven months) and the mandatory minimum incarcerative term (sixty months) on count two. As provided by statute, see 18 U.S.C. § 924(c)(1)(D)(ii), the sentence imposed on count two was ordered to run consecutively to the sentence imposed on count one. The court also ordered both sentences to run consecutively to the undischarged state sentence.

This timely appeal followed.

II. ANALYSIS

In United States v. Booker , 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), the Supreme Court effected a sea change in the law of federal sentencing, declaring the sentencing guidelines advisory and directing appellate courts to review sentences for reasonableness. See id. at 245, 260-61, 125 S.Ct. 738. The Court subsequently clarified that, in this context, review for reasonableness is functionally equivalent to review for abuse of discretion. See Gall v. United States , 552 U.S. 38, 51, 128 S.Ct. 586, 169 L.Ed.2d 445 (2007). That review entails a two-step process: an inquiring court first should resolve any claims of procedural error and then should address any challenges to the substantive reasonableness of the sentence imposed. See id. ; United States v. Martin , 520 F.3d 87, 92 (1st Cir. 2008).

Of course, these standards of review may be altered when a party has failed to preserve particular claims of error in the court below. In such an event, review is for plain error. See United States v. Ruiz-Huertas , 792 F.3d 223, 226 (1st Cir.), cert. denied , ––– U.S. ––––, 136 S.Ct. 258, 193 L.Ed.2d 191 (2015). To prevail under this rigorous standard, an appellant must establish "(1) that an error occurred (2) which was clear or obvious and which not only (3) affected [his] 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).

A .

The appellant's first line of attack deals with the district court's choice of a CHC. In his view, the court erred by "departing" from a CHC of III to a CHC of IV without either notice or an opportunity for him to be heard, thus violating Federal Rule of Criminal Procedure 32(h).⁵ Since this claim was not aired below, review is for plain error.

The premise of the appellant's argument is unimpeachable: under Rule 32(h), a defendant is entitled to notice prior to any departure on a ground not identified for departure in the PSI Report or the parties' presentencing submissions. But the appellant's attempt to apply that premise here is mistaken. We explain briefly.

The appellant asserts that the district court's decision to place him in a higher CHC constituted a departure. This assertion is simply wrong. In federal criminal sentencing, the term "departure" is a term of art. It refers specifically to a decision made by a sentencing court, after constructing the applicable guideline range , to impose a sentence above or below that range on one of certain enumerated grounds. See , e.g. , United States v. Wallace , 573 F.3d 82, 96 (1st Cir. 2009) ; United States v. Sanchez , 354 F.3d 70, 78-79 (1st Cir. 2004). Part 5K of the sentencing guidelines collects those enumerated grounds. They include, for example, situations in which the offense conduct led to death, USSG § 5K2.1 ; situations in which the offense conduct led to significant physical injury, id. § 5K2.2; and situations in which the offense conduct involved extreme psychological injury, id. § 5K2.3.

Here, however, there was no departure. The guideline range itself is a product of two subsidiary determinations. The sentencing court must determine the offender's total offense level and his CHC. See United States v. Parkinson , 44 F.3d 6, 9 (1st Cir. 1994). The decision about which the appellant complains—the determination that CHC IV applied—was integral to that process and was made as a part of it. As such, it was not a departure and was not subject to the notice requirements of Rule 32(h). See ...