United States v. Garay-Sierra, 080516 FED1, 15-1418

Docket Nº:15-1418
Opinion Judge:THOMPSON, Circuit Judge.
Party Name:UNITED STATES OF AMERICA, Appellee, v. WILFREDO GARAY-SIERRA, Defendant, Appellee.
Attorney:Kendys Pimentel Soto and Kendys Pimentel Soto Law Office on brief for appellant. Leslie R. Caldwell, Assistant Attorney General, Sung-Hee Suh, Deputy Attorney General, Amanda B. Harris, Attorney, Criminal Division, Appellate Section, United States Department of Justice, Rosa Emilia Rodríguez-Véle...
Judge Panel:Before Torruella, Selya, and Thompson, Circuit Judges.
Case Date:August 05, 2016
Court:United States Courts of Appeals, Court of Appeals for the First Circuit
 
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UNITED STATES OF AMERICA, Appellee,

v.

WILFREDO GARAY-SIERRA, Defendant, Appellee.

No. 15-1418

United States Court of Appeals, First Circuit

August 5, 2016

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

Kendys Pimentel Soto and Kendys Pimentel Soto Law Office on brief for appellant.

Leslie R. Caldwell, Assistant Attorney General, Sung-Hee Suh, Deputy Attorney General, Amanda B. Harris, Attorney, Criminal Division, Appellate Section, United States Department of Justice, Rosa Emilia Rodríguez-Vélez, United States Attorney, Nelson Pérez- Sosa, Assistant United States Attorney, Chief, Appellate Division, and Kelly Zenón-Matos, Assistant United States Attorney, on brief for appellee.

Before Torruella, Selya, and Thompson, Circuit Judges.

THOMPSON, Circuit Judge.

Stage Setting

A grand jury indicted Wilfredo Garay-Sierra (Garay) for carjacking a "Mitsubishi Nativa, " with intent to cause death and serious bodily harm, see 18 U.S.C. § 2119(2), and carrying and brandishing a firearm during a crime of violence, see id. § 924(c)(1)(A)(ii). Pursuant to a binding plea agreement, see Fed. R. Crim. P. 11(c)(1)(C), Garay pled guilty to carjacking and to possessing - but not brandishing - the firearm.[1]

In projecting Garay's total offense level, the parties (among other things) agreed to a series of enhancements - including, pertinently, a 4-level enhancement because a victim of the carjacking suffered "serious bodily injury." See USSG § 2B3.1(b)(3)(B).2 The parties did not agree on a particular guideline sentencing range for the carjacking count. But they did agree that Garay would recommend a 40-month prison sentence, and that the government would recommend a sentence within the to-be- calculated sentencing range. Because Garay accepted responsibility for possessing a firearm, the parties also agreed to recommend the mandatory-minimum sentence of 60 months in prison - the mandatory-minimum sentence for brandishing a firearm is 84 months, by the way. See 18 U.S.C. § 924(c)(1)(A)(i), (ii). The parties also agreed that the sentences had to run consecutively. And Garay agreed to waive his right to appeal if the judge "accept[ed]" the agreement and "sentenc[ed] him according to its terms, conditions, and recommendations."

The probation office's PSR recommended (among other things) that Garay get the 4-level enhancement for the carjacking count, noting that "the victims suffered serious bodily injury." Skipping over details not relevant to the issues on appeal, we note that the PSR then suggested that the judge use a 70-87 month sentencing range for this count. The PSR also incorrectly indicated that 84 months - section 924(c)'s mandatory minimum for brandishing - applied. Neither party objected to the PSR.

At the sentencing hearing - and consistent with the plea agreement - Garay's counsel asked the judge for a 40-month prison term on the carjacking count, saying his client's youth, being a father, struggles with drug addiction and depression, and below-average IQ justified a downwardly-variant sentence. Living up to the terms of the agreement, the government asked for a sentence within the range for that count. And both Garay and the government asked for the 60-month mandatory minimum for the firearm crime.

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