903 F.3d 151 (1st Cir. 2018), 17-1117, United States v. Irizarry-Rosario

Docket Nº:17-1117
Citation:903 F.3d 151
Opinion Judge:TORRESEN, Chief District Judge.
Party Name:UNITED STATES of America, Appellee, v. Axel IRIZARRY-ROSARIO, Defendant, Appellant.
Attorney:Richard B. Klibaner and Klibaner & Sabino, Cambridge, MA, on brief for appellant. Mariana E. Bauzá -Almonte, Assistant United States Attorney, Chief, Appellate Division, John A. Mathews II, Assistant United States Attorney, and Rosa Emilia Rodríguez-Vélez, United States Attorney, on brief for app...
Judge Panel:Before Howard, Chief Judge, Kayatta, Circuit Judge, and Torresen, Chief U.S. District Judge.
Case Date:September 10, 2018
Court:United States Courts of Appeals, Court of Appeals for the First Circuit
 
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Page 151

903 F.3d 151 (1st Cir. 2018)

UNITED STATES of America, Appellee,

v.

Axel IRIZARRY-ROSARIO, Defendant, Appellant.

No. 17-1117

United States Court of Appeals, First Circuit

September 10, 2018

Page 152

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF PUERTO RICO, [Hon. Francisco A. Besosa, U.S. District Judge ]

Richard B. Klibaner and Klibaner & Sabino, Cambridge, MA, on brief for appellant.

Mariana E. Bauzá -Almonte, Assistant United States Attorney, Chief, Appellate Division, John A. Mathews II, Assistant United States Attorney, and Rosa Emilia Rodríguez-Vélez, United States Attorney, on brief for appellee.

Before Howard, Chief Judge, Kayatta, Circuit Judge, and Torresen,[*] Chief U.S. District Judge.

OPINION

TORRESEN, Chief District Judge.

Defendant-Appellant Axel Irizarry-Rosario challenges his 84-month sentence for

Page 153

possession of firearms on the grounds that the government breached its plea agreement with him. Finding no error, we affirm.

I. Background

On September 15, 2016, Irizarry-Rosario pleaded guilty to a two-count indictment entered after a police search of his residence uncovered six guns, a significant amount of ammunition, and eighty-two small bags of cocaine. Count I of the indictment charged Irizarry-Rosario with possessing firearms in furtherance of a drug trafficking crime in violation of 18 U.S.C. § 924(c)(1)(A)(i). Count II charged the possession of cocaine with intent to distribute in violation of 21 U.S.C. § 841(a)(1).1

For Count I, the parties’ plea agreement stipulated that the government would recommend a sentence of sixty months, the minimum term of imprisonment required by 18 U.S.C. § 924(c). For Count II, the parties agreed that Irizarry-Rosario’s Base Offense Level under U.S.S.G. § 2D1.1 was twelve and that his Total Offense Level was ten. The parties did not stipulate to a Criminal History Category. However, the parties agreed that if the district court found that Irizarry-Rosario fell within Criminal History Category I, then under the sentencing guidelines Irizarry-Rosario’s sentencing range would be six to twelve months. The plea agreement provided that Irizarry-Rosario would seek a sentence at the lower end of this range and that the government would argue for a sentence at the higher end. The parties also agreed that any recommendation by either party for a term of imprisonment below or above the stipulated sentence recommendations would constitute a material breach of the plea agreement.

At Irizarry-Rosario’s sentencing hearing, the government kept its arguments brief. The prosecution began by stating that the parties had entered into a plea agreement and that for Count I, "we are going to be requesting 60 months." The following exchange ensued: [THE GOVERNMENT]: However, for the cocaine count, the Defense can request 6 months and the Government can request up to 12 months. The Government encourages the Court to sentence the Defendant in the higher end of those 12 months based on the sheer volume and quantity of firearms that were seized, and the ammunition that was seized. We are not talking about self-defense—

THE COURT: The higher end of the drug charge because of the weapons?

[THE GOVERNMENT]: The weapons is 60 months minimum statutory. That’s what we stand by. But, however, for the cocaine count, in which there is a spread— there is a range from 6 to 12 months— we encourage the Court to sentence him to the higher end of those 12 months based on the amount of firearms that were seized, the amount of ammunition, and the magazines that were seized in his house, Your Honor.

The government offered nothing further. At the close of the hearing, after finding that Irizarry-Rosario fell within Criminal History Category I, the district court rehearsed the relevant facts including the full list of firearms and the number of rounds that the police had found in Irizarry-Rosario’s residence. The district court then addressed the government’s recommended sentence on Count I: Because of the significant number of weapons, some with obliterated serial numbers, and ammunition found, including

Page 154 assault rifles, large capacity magazines chocked full of ammunition, and additional ammunition in boxes, the Court finds that the sentence to which the parties agreed does not reflect the seriousness of the offense, does not promote respect for the law, does not protect the public from further crimes by Mr. Irizarry[Rosario], and does not address the issues of deterrence and punishment.

The district court went on to sentence Irizarry-Rosario to eighty-four months of imprisonment as to Count I and twelve months as to Count II, to be served consecutively.

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