United States v. Contreras-Delgado, 17-1962

• Decision Date: 17 January 2019
• Docket Number: No. 17-1962,17-1962
• Citation: 913 F.3d 232
• Parties: UNITED STATES of America, Appellee, v. Angel Rafael CONTRERAS-DELGADO, Defendant, Appellant.
• Court: U.S. Court of Appeals — First Circuit

913 F.3d 232

UNITED STATES of America, Appellee,

v.Angel Rafael CONTRERAS-DELGADO, Defendant, Appellant.

No. 17-1962

United States Court of Appeals, First Circuit.

January 17, 2019

Marie L. Cortés Cortés, San Juan, PR, was on brief for appellant.

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

Before Barron and Selya, Circuit Judges, and Katzmann,^* Judge.

KATZMANN, Judge.

After pleading guilty to a charge of possessing a machine gun in violation of 18 U.S.C. § 922(o), the uncontested presentence report("PSR") placed defendant-appellant Angel Rafael Contreras-Delgado ("Contreras-Delgado") in a federal guideline sentencing range ("GSR") of 24 to 30 months’ imprisonment. The district court judge sentenced him to 46 months. Claiming that this variant sentence is procedurally flawed and substantively unreasonable, Contreras-Delgado now appeals. We affirm.

I. BACKGROUND.

Because this appeal follows a guilty plea, we draw the facts from the change-of-plea colloquy, the undisputed portions of the PSR, and the transcript of the sentencing hearing. United States v. Arias-Mercedes, 901 F.3d 1, 4 (1st Cir. 2018). In January 2017, undercover police officers saw a man, later identified as Contreras-Delgado, standing outside one of the apartments in a public housing project in Bayamón, Puerto Rico. Contreras-Delgado looked at the officers, asked "What’s going on Man" (translation from Spanish), and lifted his arms, which exposed a black gun with an extended magazine in his waistband. The officers identified themselves and asked if Contreras-Delgado had a firearms license; he replied that he did not. The officers arrested Contreras and seized the gun. The gun—a Glock 9-millimeter ("mm") pistol—had been modified to fire multiple rounds with a single pull of the trigger and was fully loaded with a 31-round extended magazine. At the time of arrest, the officers found two more 9-mm magazines next to Contreras-Delgado: another fully loaded 31-round magazine and a 17-round magazine with 15 rounds of ammunition.

Federal agents questioned Contreras-Delgado after reading him his rights. Contreras-Delgado admitted that he sold drugs and had purchased the gun that was in his waistband "for protection." He told the agents he knew the pistol was modified to fire automatically "because he specifically asked for it to be fully auto when he purchased it." The firearm also had an aftermarket barrel installed, was equipped with a high-capacity 31-round magazine, and incorporated a machine gun conversion device designed to make semiautomatic Glock pistols fire automatically. No ownership records for the gun could be found.

Contreras-Delgado was indicted for possessing a machine gun, in violation of 18 U.S.C. § 922(o). He knowingly and voluntarily entered a straight plea of guilty to possessing a machine gun as alleged in the indictment. At the change-of-plea hearing, Contreras-Delgado told the district court of his current treatment for depression, though he remained competent to plead. He also indicated that he understood that sentencing would be in the discretion of the court and could differ from the guidelines and/or the parties’ sentencing recommendations. Upon Contreras-Delgado’s motion, the judge issued an order permitting evaluation of him by a clinical psychologist, Dr. Alexandra Ramos ("Dr. Ramos"), in support of mitigation of sentence.

The U.S. Probation Office prepared a PSR¹ that outlined the offense conduct described above. Possession of a machine gun carried a base offense level of 20; the PSR subtracted 3 levels for acceptance of responsibility, yielding a total offense level of 17.

Contreras-Delgado was twenty-two years old when he was arrested for the instant offense. By that time, he had two juvenile adjudications: one for pointing a bladed weapon at four other children and threatening to stab them, and another for stealing from his mother and threatening to kill both her and his grandmother. He had also been arrested as an adult for two counts of distributing a controlled substance, but those charges were dismissed pursuant to Puerto Rico’s Speedy Trial Act. None of these events counted for criminal history points under the guidelines. Accordingly, the PSR used a Criminal History Category of I, and calculated Contreras-Delgado’s GSR as 24 to 30 months’ imprisonment. Under the guidelines, Contreras-Delgado was ineligible for probation. See U.S.S.G. § 5B1.1.

The PSR then set forth at length Contreras-Delgado’s personal history and characteristics, including his family history, and his mother’s impression of his treatment needs: his "volatile nature" plus "hyperactivity disorder ... when combined with his drug use, results in violent behavior. If he is under treatment, he can control his impulses." The PSR also included a detailed summary of Contreras-Delgado’s mental and emotional health, including a 2012 evaluation by a clinical psychologist and 2017 findings by the Bureau of Prisons Psychology Services.

In its concluding paragraph, the PSR noted that the district court could "consider the following factors to impose a sentence outside the advisory [g]uideline[ ]s": Contreras-Delgado’s history of substance abuse, his juvenile record, the fully loaded weapon and additional magazines he possessed during the instant offense, his admissions that he had sought out a fully automatic firearm and that he sold drugs, and finally, that he was arrested as part of an operation targeting drug point activities in a public housing project.

Contreras-Delgado did not object to any portion of the PSR. He did, however, submit a sentencing memorandum urging the district court to focus on Contreras-Delgado’s rehabilitative potential and recommending a non-GSR "alternative sentence," combining incarceration, probation, and supervised release.

At sentencing, Contreras-Delgado sought to present briefly the testimony of Dr. Ramos, the clinical psychologist who evaluated him while he was in jail. The United States ("the government") offered instead to stipulate to the contents of the report prepared by Dr. Ramos and its recommendation that Contreras-Delgado receive substance abuse treatment. The district court approved the stipulations and ruled that there was no need for Dr. Ramos to testify. The district court summarized Dr. Ramos’s recommendation—that Contreras-Delgado "receive substance abuse treatment to address his problems with addiction and to prevent relapses"—and directed that the whole report be added to the PSR. The district court also instructed that the PSR be modified to include mental health treatment as one of the conditions.

Contreras-Delgado argued that a prolonged sentence of imprisonment would not facilitate his rehabilitation. He particularly "highlight[ed] from the sentencing memo [ ] the idea that because of [his] age, a prolonged sentence of imprisonment may not actually contribute to his rehabilitation." The district court pointed out that Dr. Ramos’s report contradicted that statement: "[Dr.] Ramos says that he is in remission because of his incarceration." Contreras-Delgado disagreed and argued that "it’s about all the environmental factors that go into what would help someone rehabilitate." The government agreed that Contreras-Delgado did "do well under a controlled environment," but indicated that a "controlled environment" could be obtained in prison. The government also explained that other sentencing factors strongly favored a sentence of imprisonment, particularly the serious nature of Contreras-Delgado’s offense and his prior offenses involving threats of violence.

The parties agreed that Contreras-Delgado’s total offense level was 17. The court then recounted the facts of Contreras-Delgado’s juvenile offenses involving threats of violence and noted Contreras-Delgado’s 2014 arrest for a controlled substance offense. As the PSR explained, this meant that Contreras-Delgado had no criminal history points. His GSR was thus 24 to 30 months. Contreras-Delgado asked the court to depart or vary downward from imposing a sentence of incarceration and instead impose a combination of incarceration and home confinement. The government, noting that Contreras-Delgado had a machine gun in his waist and had prior contacts with the law, recommended that the court impose a sentence of incarceration within the GSR. The government indicated that the Bureau of Prisons could provide a controlled environment as well as mental health and substance abuse treatment.

Stating that it had considered the facts of Contreras-Delgado’s offense as well as the other sentencing factors set forth in 18 U.S.C. § 3553(a), the district court determined that a sentence above the GSR was appropriate. Specifically, the district court noted Contreras-Delgado’s age, employment, and substance abuse history, reiterated the parties’ sentencing recommendations, and explained that it had considered Contreras-Delgado’s "personal characteristics, as well as the nature of the offense." Contreras-Delgado’s machine gun "was loaded with a 31-round high capacity magazine," he had additional high-capacity magazines, he admitted that he requested a fully automatic gun when he purchased it, and he confessed to selling drugs. Those facts, plus Contreras-Delgado’s prior violent threats and the fact that he had not reformed despite prior leniency, "move[d] the Court to impart a sentence above the guideline range" to "reflect[ ] the seriousness of the offense, promote[ ] respect for the law, protect[ ] the public from further crimes by Mr. Contreras[-Delgado], and address[ ] the issues of deterrence and punishment." Accordingly, the court sentenced Contreras-Delgado to 46 months’ imprisonment and three years’ supervised release.

This appeal ensued.

II. DISCUSSION

A. Basic Principles.

As we detail below, Contreras-Delgado contends...