United States v. Flores-Gonzalez

• Docket Number: 19-2204
• Decision Date: 07 November 2023
• Parties: UNITED STATES OF AMERICA, Appellee, v. EMILIANO EMMANUEL FLORES-GONZALEZ, Defendant, Appellant.
• Court: U.S. Court of Appeals — First Circuit

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UNITED STATES OF AMERICA, Appellee,
v.
EMILIANO EMMANUEL FLORES-GONZALEZ, Defendant, Appellant.

No. 19-2204

United States Court of Appeals, First Circuit

November 7, 2023

Appeal from the United States District Court for the District of Puerto Rico [Hon. Francisco A. Besosa, U.S. District Judge]

Kevin E. Lerman, Research and Writing Attorney, with whom Eric Alexander Vos, Federal Public Defender, Franco L. Pérez- Redondo, Assistant Federal Public Defender, Supervisor, Appeals Section, and Alejandra Bird-López, Research and Writing Attorney, were on brief, for appellant.

Emma A. Andersson, Devi M. Rao, Elizabeth A. Bixby, and Fermin Arraiza on brief for Roderick & Solange MacArthur Justice Center, The American Civil Liberties Union Foundation, and The Puerto Rico Chapter of the American Liberties Union Foundation, amici curiae.

Adam Murphy, Janai S. Nelson, Samuel Spital, Ashok Chandran, Catherine Logue, and Christopher Kemmitt on brief for NAACP Legal Defense and Educational Fund, Inc., amicus curiae.

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Judith H. Mizner, Assistant Federal Defender, on brief for Office of the Federal Defender for the Districts of Massachusetts, New Hampshire, and Rhode Island, amicus curiae.

Linda Backiel on brief for Puerto Rico Association of Criminal Defense Lawyers, amicus curiae.

Gregory B. Conner, Assistant United States Attorney, with whom W. Stephen Muldrow, United States Attorney, Mariana E. Bauzá- Almonte, Chief, Appellate Division, Kenneth A. Polite, Jr., Assistant Attorney General, Lisa H. Miller, Deputy Assistant Attorney General, John M. Pellettieri, Attorney, Appellate Section, and Jenny C. Ellickson, Attorney, Appellate Section, and were on brief, for appellee.

Before Barron, Chief Judge, Lynch, Thompson, Kayatta, Gelpí, and Montecalvo, Circuit Judges.

OPINION EN BANC

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The judgment entered in the district court is affirmed by an equally divided en banc court. See Savard v. Rhode Island, 338 F.3d 23, 25 (1st Cir. 2003) (en banc).

Opinions follow.

KAYATTA, Circuit Judge, with whom LYNCH and GELPÍ, Circuit Judges, join. On this appeal, Emiliano Emmanuel Flores-Gonzalez ("Flores") raises two challenges to his sentence following his guilty plea to a charge of illegally possessing a machine gun in violation of 18 U.S.C. § 922(o) -- first, that he was erroneously classified as a "prohibited person," and second, that his sentence was both procedurally and substantively unreasonable. All members of the panel that first heard this appeal and all members of the en banc court agree that Flores's classification as a "prohibited person" under U.S.S.G. § 2K2.1(a)(4)(B) was not clear error and for that reason is affirmed, as more fully explained in the separate opinion that follows this opinion.

What divides our court is how to rule on Flores's challenge to the district court's decision to vary upward eighteen months from the upper end of the guidelines sentencing range. We explain in this opinion why three members of the court conclude that the upward variance was within the district court's discretion.

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I.

We begin by explaining what the district court did at sentencing. After hearing from counsel for each party, and considering the pre-sentencing report of probation, the district court calculated a guidelines sentencing range of twenty-four to thirty months. All agree that this calculation was free from error.

The district court also considered the full array of sentencing factors set forth in 18 U.S.C. § 3553(a). In so doing, the district court began by referencing the government's assertion that Puerto Rico was a hotspot for violence and stating that "crime in Puerto Rico far exceeds the known limits on the mainland." Flores took no objection to this assertion. The district court then discussed at length its perception that, given the "pervasive" occurrence of gun crimes in Puerto Rico, the impact of possessing a machine gun in Puerto Rico was "more serious than that considered by the Sentencing Commission when it drafted the guidelines." The court also explained that deterring the "population at large" from engaging in such behavior was an important factor in sentencing.

The court then continued to discuss the specific characteristics of Flores and the characteristics of the offense. The court observed that, at the time of his arrest (at a McDonalds), Flores had the machine gun loaded with thirty-three rounds of ammunition, and he possessed an additional thirty rounds.

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An empty shell casing was also found in the vehicle in which Flores had been riding at the time of his arrest. While mentioning these facts, the court did not claim that Flores's offense was more harmful than "others similar to his." Rather, the court's judgment was that gun crimes were more serious in Puerto Rico because of the scourge of violent crime being experienced in the Commonwealth. The court discussed the harm posed by machine guns, showing a video of a machine gun assault to illustrate the point. Citing a need for greater deterrence and punishment than was implicit in the guidelines range, the court varied upward by eighteen months to impose a sentence of forty-eight months. It is that variance that is at issue on this appeal.

II.

We certainly agree that a sentencing judge should focus carefully on the individual circumstances of the offender and the offense. The district court did exactly that, and said that it had done so. It is equally clear, too, that such a focus can properly encompass the location where the offense occurred, and that an offense can be seen as more serious (and necessitating greater deterrence) when committed in a community experiencing a greater-than-customary incidence of related crime. Our circuit has so held for well over a decade in as many as twenty-five cases.^[1]

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It is also beyond debate that the need for general deterrence is a lawful consideration in sentencing. Section 3553(a) expressly commands courts to consider the need "to afford adequate deterrence to criminal conduct." 18 U.S.C. § 3553(a)(2)(B). And it is black letter law that the "criminal conduct" to be deterred by criminal sentences includes the conduct of persons other than the defendant, i.e., general deterrence. See United States v. Pagan-Walker, 877 F.3d 415, 417 (1st Cir. 2017) ("[T]he need for general deterrence is a permissible factor to consider [in sentencing].") The Supreme Court, too, has been

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clear on the importance of general deterrence in sentencing. See Pell v. Procunier, 417 U.S. 817, 822 (1974) ("An important function of the corrections system is the deterrence of crime. The premise is that by confining criminal offenders in a facility where they are isolated from the rest of society, a condition that most people presumably find undesirable, they and others will be deterred from committing additional criminal offenses." (emphasis added)).

Our colleagues who write separately claim not to dispute the foregoing. In other words, they never actually say that a sentencing judge cannot consider the relative prevalence of gun crimes in the community in which the defendant decided to commit a serious gun crime. Instead, they rely on two recent panel opinions that create out of thin air two procedural limitations that -- as applied by our colleagues -- effectively eliminate any ability to use upwardly variant sentences in an effort to help a community experiencing a high level of gun crimes. See United States v. Rivera-Berrios, 968 F.3d 130 (1st Cir. 2020) and United States v. Carrasquillo-Sanchez, 9 F.4th 56 (1st Cir. 2021). We voted to proceed en banc in order to overrule those panel decisions to the extent they adopted such limitations. Our colleagues would instead affirm and apply those limitations in this case.

First, our colleagues would hold that a greater need to deter crime in a given community cannot serve by itself ("solely") to support any upward variance. There is absolutely no support

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for this requirement in the text of section 3553(a) or in any Supreme Court opinion. And what exactly does it mean? The district court in this case considered a full range of sentencing factors, each of which presumably had some potential upward or downward effect. The court considered the locus of the crime and the resulting need for greater deterrence "solely" only in the sense that, but for that factor added to the rest, the court would have imposed a shorter sentence. This is exactly how sentencing works. To hold otherwise would simply be a back door way of saying that a court cannot upwardly vary based on a finding that the circumstances of the community in which the offense occurred render the offense more serious and the need for deterrence greater.

As for the second limitation, our colleagues say that the deterrence needs of a given community cannot support "too much" of an upward variance. We readily agree. But when one looks at the mandate our colleagues would issue on remand -- ordering no variance at all -- it becomes clear that "too much" means anything greater than zero. Their limitation would render it, effectively, procedural error for a sentencing court to impose an upward variance based on community characteristics. We think, instead, that "too much" in this context more properly means that a variance imposed because of community characteristics must still meet the requirements of substantive reasonableness, as we will explain. But we see no procedural error in the consideration of community

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characteristics as they relate to section 3553(a) factors, including, as here, general deterrence.

This effort to enshrine judicially-created limitations that effectively overturn more than a decade of circuit precedent and preclude district court judges from providing added deterrence in aid of a community facing a relatively greater incidence of gun violence runs headlong into the Supreme Court's warning that "[t]he only...