United States v. Flores–Machicote

• Decision Date: 23 January 2013
• Docket Number: No. 11–2243.,11–2243.
• Citation: 706 F.3d 16
• Parties: UNITED STATES of America, Appellee, v. Victor FLORES–MACHICOTE, Defendant, Appellant.
• Court: U.S. Court of Appeals — First Circuit

706 F.3d 16

UNITED STATES of America, Appellee,

v.Victor FLORES–MACHICOTE, Defendant, Appellant.

No. 11–2243.

United States Court of Appeals, First Circuit.

Jan. 23, 2013.

Hector L. Ramos–Vega, Assistant Federal Public Defender, Supervisor, Appeals Division, with whom Hector E. Guzman, Jr., Federal Public Defender, and Patricia A. Garrity, Assistant Federal Public Defender, were on brief, for appellant.

Nelson Pérez–Sosa, Assistant United States Attorney, Chief, Appellate Division, with whom Rosa Emilia Rodriguez–Velez, United States Attorney, and Julia M. Meconiates, Assistant United States Attorney, were on brief, for appellee.

Before LYNCH, Chief Judge, SOUTER,^* Associate Justice, and SELYA, Circuit Judge.

SELYA, Circuit Judge.

After defendant-appellant Victor Flores–Machicote entered a guilty plea, the district court sentenced him to five years in prison—a sentence well above the top of the applicable guideline sentencing range (GSR). The defendant appeals, asserting that the district court did not make an individualized assessment of the relevant sentencing factors but, rather, relied on impermissible considerations (including the perceived shortcomings of the local courts and the epidemic of violent street crime that has plagued Puerto Rico in recent times). After careful consideration, we reject the defendant's assertions and affirm the sentence.

The background facts are uncomplicated. A federal grand jury sitting in the District of Puerto Rico indicted the defendant on a single count of possessing a firearm as a convicted felon. See18 U.S.C. §§ 922(g)(1), 924(a)(2). The charge carries a maximum term of imprisonment of ten years. See id. § 924(a)(2). The defendant pleaded guilty, and the probation department prepared a presentence investigation report (the PSI Report) that recommended a GSR of 33–41 months.

At the disposition hearing, the parties—pursuant to a nonbinding plea agreement—jointly recommended a 33–month sentence. The district court abjured this joint recommendation, saying that such a sentence would be “irresponsible.” The court instead imposed a five-year incarcerative term.

This timely appeal ensued. In it, the defendant does not contest the guidelines calculations contained in the PSI Report. Nevertheless, he challenges his sentence as both procedurally flawed and substantively unreasonable. Furthermore, he seeks to be resentenced before a different judge.

We review criminal sentences imposed under the advisory guidelines regime for abuse of discretion. See Gall v. United States, 552 U.S. 38, 51, 128 S.Ct. 586, 169 L.Ed.2d 445 (2007); United States v. Martin, 520 F.3d 87, 92 (1st Cir.2008). Within this rubric, we assay the district court's factfinding for clear error and afford de novo consideration to its interpretation and application of the sentencing guidelines. See United States v. Walker, 665 F.3d 212, 232 (1st Cir.2011).

The defendant's core contention is that the district judge failed to make an individualized assessment of the relevant sentencing factors but, rather, relied mainly on impermissible considerations. In support, the defendant draws our attention to certain statements made by the judge. For the most part, these statements track two themes. The first theme is composed of the judge's references to matters such as the perceived shortcomings of the local criminal justice system and the need to compensate for those shortcomings. The second theme is composed of the judge's references to Puerto Rico's murder rate and other negative societal factors. The defendant asseverates that the judge's espousal of these themes resulted in a failure to treat him as an individual and fostered unwarranted sentencing disparity. These bevues, in turn, led directly to the imposition of a higher than reasonable sentence.

In the sentencing context, we evaluate claims of unreasonableness in light of the totality of the circumstances. Gall, 552 U.S. at 51, 128 S.Ct. 586. This path typically involves a two-step pavane. First, we inquire into the existence of procedural errors “such as failing to calculate (or improperly calculating) the [GSR], treating the Guidelines as mandatory, failing to consider the [18 U.S.C.] § 3553(a) factors, selecting a sentence based on clearly erroneous facts, or failing to adequately explain the chosen sentence-including an explanation for any deviation from the Guidelines range.” Id. Once we are assured that the sentence is not infected by procedural error, we then proceed to evaluate its substantive reasonableness. Id.

Appellate review of federal criminal sentences is characterized by a frank recognition of the substantial discretion vested in a sentencing court. Although the advisory guidelines are “the starting point and the initial benchmark,” id. at 49, 128 S.Ct. 586, a sentencing judge may draw upon his familiarity with a case, weigh the factors enumerated in 18 U.S.C. § 3553(a), and custom-tailor an appropriate sentence, see Kimbrough v. United States, 552 U.S. 85, 109, 128 S.Ct. 558, 169 L.Ed.2d 481 (2007). It follows that a “sentencing court may not mechanically assume that the GSR frames the boundaries of a reasonable sentence in every case.” Martin, 520 F.3d at 91. Rather, the court must take a flexible, case-by-case approach: once the GSR is properly calculated, “sentencing becomes a judgment call” involving an intricate array of factors. Id. at 92. Consequently, punishment outside the GSR may be warranted in a particular case “to serve the objectives of sentencing.” Kimbrough, 552 U.S. at 91, 128 S.Ct. 558.

When a court varies from the GSR, its reasons for doing so “should typically be rooted either in the nature and circumstances of the offense or the characteristics of the offender.” Martin, 520 F.3d at 91. In such a situation, the factors deemed relevant by the sentencing court “must add up to a plausible rationale” for the sentence imposed and “must justify a variance of the magnitude in question.” Id.

Against this backdrop, we turn to the defendant's assignments of error. We begin with the argument that the district judge, in fashioning the defendant's sentence, improperly considered shortcomings in Puerto Rico's local justice system—including its past treatment of the defendant.

By statute, a criminal defendant's “history and characteristics” are among the considerations that a court ought to take into account at sentencing. 18 U.S.C. § 3553(a)(1). As part of this inquiry, a sentencing judge may consider whether a defendant's criminal history score substantially underrepresents the gravity of his past conduct. United States v. Lozada–Aponte, 689 F.3d 791, 792 (1st Cir.2012); Walker, 665 F.3d at 233–34;seeUSSG § 4A1.3(a)(1). A record of past arrests or dismissed charges may indicate “a pattern of unlawful behavior even in the absence of any convictions.” Lozada–Aponte, 689 F.3d at 792 (quoting United States v. Zapete–Garcia, 447 F.3d 57, 60 (1st Cir.2006)) (internal quotation marks omitted); see United States v. Gallardo–Ortiz, 666 F.3d 808, 814–15 (1st Cir.2012). Logic dictates that a sentencing court may similarly consider whether, in a series of past convictions, the punishment appears to fit the crime. If the court concludes that an asymmetry exists which results in a substantial underestimation of the defendant's criminal history, it may vary the sentence upward to reflect past leniency.¹See United States v. Moore, 239 Fed.Appx. 509, 512 (11th Cir.2007) (per curiam); see alsoUSSG § 4A1.3, comment. (backg'd.).

It is true that, in the case at hand, the sentencing judge commented disapprovingly about what he perceived to be the habitual leniency of the local courts. Seen in a vacuum, this perceived systemic shortcoming is not, in and of itself, a relevant sentencing factor. Importantly, however, the judge did not stop there: he went to considerable lengths to walk through the defendant's prior interactions with the law. The judge explained, in some detail, why he believed that the outcome of these interactions underrepresented the seriousness of the defendant's past criminal conduct. Specifically, he noted that the defendant's felony conviction for simple possession of heroin and cocaine had been reduced from a charge of possession with intent to distribute; three other arrests for controlled substance violations had resulted in no punishment at all; and a prior conviction for illegal appropriation of a vehicle had resulted in only a six-month suspended sentence. In light of the conduct in which the defendant had engaged and how he fared before the local courts, we think that the district judge had some basis for referring to the earlier sentences as “slap[s] on the wrist.” ² We also think that the judge reasonably could have concluded that one of the defendant's past arrests for distribution of controlled substances likely “[fell] through the cracks” when the local court found no probable cause to proceed with the underlying charge. Having reached these conclusions, it was within the district judge's discretion to find that the defendant's criminal history score did not adequately represent either the seriousness of his past criminal behavior or the likelihood of his recidivism.

We add, moreover, that the district judge's focus on the defendant's criminal history belies the claim that the judge did not consider the defendant's case. That focus unmistakably shows that the judge gave individualized attention to the defendant's situation. See Gall, 552 U.S. at 50, 52, 128 S.Ct. 586.

The defendant's next argument is that the district judge considered Puerto Rico's escalating murder rate and other local criminal trends and that this consideration was improper. The factual premise upon which this argument rests is solid; the record is pellucid that the judge commented repeatedly upon these points. Some examples follow.

• “What do you think that this gun that [the defendant] had illegally was to be used for? Was it to go to...