United States v. Carrasquillo-Sánchez

• Decision Date: 16 August 2021
• Docket Number: No. 19-2151,19-2151
• Citation: 9 F.4th 56
• Parties: UNITED STATES, Appellee, v. Angel Miguel CARRASQUILLO-SÁNCHEZ, Defendant, Appellant.
• Court: U.S. Court of Appeals — First Circuit

9 F.4th 56

UNITED STATES, Appellee,

v.Angel Miguel CARRASQUILLO-SÁNCHEZ, Defendant, Appellant.

No. 19-2151

United States Court of Appeals, First Circuit.

August 16, 2021

Rafael F. Castro Lang for appellant.

Francisco A. Besosa-Martínez, with whom W. Stephen Muldrow, United States Attorney, and Mariana E. Bauzá-Almonte, Assistant United States Attorney, Chief, Appellate Division, were on brief, for appellee.

Before Howard, Chief Judge, Barron, Circuit Judge, McAuliffe,^* District Judge.

BARRON, Circuit Judge.

Angel Miguel Carrasquillo Sánchez ("Carrasquillo") received a forty-eight-month prison sentence after entering a guilty plea to one count of firearm possession in violation of 18 U.S.C. §§ 922(g)(3) and 924(a)(2). Carrasquillo challenges the procedural and substantive reasonableness of that sentence. Because we conclude that the District Court plainly erred in failing to provide a sufficient case-specific explanation for its upward variance from the applicable sentencing range under the United States Sentencing Guidelines, we vacate Carrasquillo's sentence and remand for resentencing.

I.

Carrasquillo was arrested by local police officers on May 21, 2019, in the afternoon in Loíza, Puerto Rico, following a traffic stop. At the time of his arrest, Carrasquillo was travelling in a car with three other individuals -- among them his cousin. Carrasquillo was in the possession of a Glock pistol that had been modified to fire automatically. That firearm was loaded with twenty-nine rounds of ammunition. Five magazines that contained an additional 128 rounds of ammunition lay next to that firearm in the car. Carrasquillo's cousin, too, carried a loaded firearm and additional magazines and rounds of ammunition.

On May 30, 2019, a federal grand jury returned an indictment against Carrasquillo and his cousin. The indictment charged Carrasquillo with possession of a machinegun in violation of 18 U.S.C. §§ 922(o) and 924(a)(2) (Count One) and with possession of a firearm by a person "who is an unlawful user of ... any controlled substance" in violation of 18 U.S.C. §§ 922(g)(3) and 924(a)(2) (Count Two).

Carrasquillo entered a guilty plea on July 24, 2019, to the second of these two counts. In his plea agreement, he admitted that he was an unlawful user of a controlled substance because he had been "a habitual user of marihuana and smoke[d] 3 joints of marihuana a day since he was 17 years old." Carrasquillo and the government also agreed to advise the District Court that for purposes of calculating Carrasquillo's Guidelines sentencing range ("GSR"), his Total Offense Level ("TOL") was seventeen. They further agreed that they would each recommend a prison sentence of twenty-four months.

At the sentencing hearing on October 21, 2019, the District Court followed the plea agreement's advisory calculation of Carrasquillo's TOL. It did so by finding first that Carrasquillo's Base Offense Level ("BOL") was twenty pursuant to U.S.S.G. § 2K2.1(a)(4), in part because his offense involved a "semi-automatic weapon that is capable of accepting a large capacity magazine or a firearm described in 26 [U.S.C.] § 5845 [(a)]." It then applied a three-level reduction pursuant to U.S.S.G. § 3E1.1(a) and (b). The District Court also found that Carrasquillo had no prior known arrests or convictions. Based on Carrasquillo's TOL and criminal history, the District Court calculated Carrasquillo's GSR to be twenty-four to thirty months of imprisonment.

The District Court, however, imposed a variant sentence of forty-eight months -- eighteen months more than the top of the GSR and twice the length of the sentence recommended by both parties. Carrasquillo timely appealed.

II.

Carrasquillo argues on appeal that his forty-eight-month prison sentence is both procedurally and substantively unreasonable. We review his claim of procedural error first. See Gall v. United States, 552 U.S. 38, 51, 128 S.Ct. 586, 169 L.Ed.2d 445 (2007).

Carrasquillo argues that the District Court "failed to properly apply the 18 U.S.C. [§ ]3553(a) factors" and "based its sentence on clearly erroneous facts." That is so, he contends, because the only individualized finding on which the District Court relied for its upward variance was one that it necessarily had already taken into account in its calculation of the GSR -- Carrasquillo's "possession of a machinegun and an extended magazine." In so arguing, he acknowledges that the District Court, in explaining the variance, also relied on what it described as "the problem of criminality in P.R." and on several specific instances of gun violence in the Commonwealth. But, Carrasquillo argues, that aspect of its explanation cannot suffice to render the explanation sufficient because the specific incidents were "totally disassociated [from] his offense conduct" and the concern about the general problem of crime was not adequately linked to his particular conduct beyond his having possessed a machine gun.

The government contends that Carrasquillo did not preserve this procedural challenge during the sentencing hearing and that we should therefore review the District Court's explanation of its variant sentence only for plain error. We agree.

During the sentencing hearing, Carrasquillo's counsel voiced only a single objection to the variant sentence. That objection was "to the length of the sentence imposed." His objection thus appeared to concern only the substantive unreasonableness of his sentence due to its length and independent of the adequacy of the explanation offered by the District Court in support of it. Cf. United States v. Rivera-Berríos, 968 F.3d 130, 134 (1st Cir. 2020) (concluding that the defendant preserved his procedural claim below because "appellant's counsel made clear" not only "that he believed that the sentence was ‘excessive,’ " but also "that the court had not articulated any cognizable grounds that would support an upward variance"). For that reason, we review his claim of procedural error for plain error. See United States v. Perretta, 804 F.3d 53, 57 (1st Cir. 2015) ; United States v. Contreras-Delgado, 913 F.3d 232, 238 (1st Cir. 2019).

Under this standard of review, a defendant must show "(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." Perretta, 804 F.3d at 57 (quoting United States v. Duarte, 246 F.3d 56, 60 (1st Cir. 2001) ). We find that Carrasquillo satisfies all these requirements.

We start with the basics. A district court "must adequately explain the chosen sentence to allow for meaningful appellate review and to promote the perception of fair sentencing." Gall, 552 U.S. at 50, 128 S.Ct. 586. When a district court varies from the GSR, as it did in this case, moreover, we "must consider the extent of the deviation and ensure that the justification is sufficiently compelling to support the degree of the variance." Id.; see also United States v. Ofray-Campos, 534 F.3d 1, 43 (1st Cir. 2008) ("The farther the judge's sentence departs from the guidelines sentence ... the more compelling the justification based on factors in section 3553(a) that the judge must offer in order to enable the court of appeals to assess the reasonableness of the sentence imposed.") (quoting United States v. Dean, 414 F.3d 725, 729 (7th Cir. 2005) (Posner, J.) (ellipses in original)).

Here, the District Court imposed an upward variance of eighteen months from the applicable GSR of a prison sentence of up to thirty months. That is a significant deviation. So, the key issue concerns the sufficiency of the District Court's explanation for that variance, given its magnitude.

The District Court did express special concern that Carrasquillo had bought a firearm "that had been modified to shoot automatically" -- "[w]hat we call a machine gun" -- even though "he admitted that there are no threats against him." The District Court added "that machine guns [are] one of the most dangerous weapons in terms of [their] firing capabilities."

It is clear, however, that the possession of the machinegun alone could not justify such a variance. We have plainly stated that "[w]hen a § 3553(a) consideration is already accounted for in the guideline range, a sentencing Court ‘must articulate specifically the reasons that this particular defendant's situation is different from the ordinary situation covered by the guidelines calculation.’ " United States v. Rivera-Santiago, 919 F.3d 82, 85 (1st Cir. 2019) (quoting United States v. Guzman-Fernandez, 824 F.3d 173, 177 (1st Cir. 2016) ). Carrasquillo's GSR had been calculated pursuant to U.S.S.G. § 2K2.1(a)(4) based in part on the finding that he possessed a "semi-automatic weapon that is capable of accepting a large capacity magazine or a firearm described in 26 [U.S.C.] § 5845 [(a)]." Thus, because the concerns that the District Court highlighted about the dangers posed by machine guns and the defendant's lack of need for such a weapon "are universal in their application, and we have no reason to believe that they were not factored into the mix when the Sentencing Commission set the base offense level for the offense of conviction," Rivera-Berríos, 968 F.3d at 136, Carrasquillo's possession of a machinegun alone could no more justify this variant sentence than it could justify the one at issue in Rivera-Berríos.

After all, in that case, too, the district court expressed the concerns that machineguns are "highly dangerous and unusual," can fire over a thousand rounds per minute, and exist largely "on the black market" as explanations for its variance. Id. Yet, we held that those concerns about machineguns could not supply the basis -- at least on their own -- for an upward variance of the same magnitude as here and concluded for that reason that the district court failed to explain why the defendant's machinegun possession "was...