United States v. Franquiz-ortiz
| Decision Date | 09 June 2010 |
| Docket Number | No. 09-1815.,09-1815. |
| Citation | 607 F.3d 280 |
| Parties | UNITED STATES, Appellee,v.Jesus FRANQUIZ-ORTIZ, Defendant, Appellant. |
| Court | U.S. Court of Appeals — First Circuit |
Laura Maldonado Rodríguez on brief for appellant.
Rosa Emilia Rodriguez-Velez, United States Attorney, Nelson Pérez-Sosa, Assistant United States Attorney, Chief, Appellate Division, and Luke V. Cass, Assistant United States Attorney, were on brief for appellee.
Before LIPEZ, HOWARD and THOMPSON, Circuit Judges.
This is an appeal from a sentence imposed upon revocation of supervised release.
Jesus Franquiz-Ortiz (Franquiz) was convicted in 2003 on a plea of guilty to conspiracy to possess with intent to distribute heroin, a Class C felony. He was sentenced to serve 46 months of imprisonment and three years of supervised release. The parties agree, in their briefs, on the events that led to revocation of the term of supervised release and the imposition of a sentence of imprisonment.
After about two years of the term of supervised release had elapsed, during an unannounced visit in April 2009, the probation officer found a package containing one pound of marijuana in Franquiz's car. The probation officer filed a motion for an order to show cause in regard to revocation.
Franquiz did not challenge the allegation that he had committed a Grade B violation of a condition of his supervised release and waived his right to a preliminary hearing. At the final hearing, the parties presented to the court a joint recommendation of 12 months of imprisonment without further supervised release. Under the United States Sentencing Guidelines, § 7B1.4(a), the recommendation represented an upward departure from the advisory guideline range of 4-10 months for a Grade B violation and a criminal history category (CHC) I. The government offered no argument in regard to the joint recommendation. Defense counsel argued, in support of the recommendation that, while on supervised release, Franquiz had been steadily employed for two years, had never tested positive to drugs, had paid his alimony, and had filed his income tax returns; in addition, this was his first time before the court in relation to supervised release.
The district court rejected the joint recommendation and imposed a sentence of 24 months of imprisonment, the statutory maximum permissible sentence under 18 U.S.C. § 3583(e)(3) and well above both the applicable advisory guideline range of four to ten months and the parties' joint recommendation of twelve months. The court offered the following explanation:
I am not prepared to give him ... a guideline range sentence.... This individual has been given opportunities. What he has done is not de minimis by any means, and I do think that if I am not going to supervise him anymore, I am going to make him serve 24 months with no additional supervision.
(Emphasis added). As the sentence proposed by the parties was, in fact, itself above the advisory guideline range, this comment does not reveal the court's rationale for imposing a non-guideline sentence twice as long.
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...sentencing range without an adequate explanation of its consideration of all relevant factors. See, e.g., United States v. Franquiz–Ortiz, 607 F.3d 280 (1st Cir.2010) (per curiam). Indeed, in United States v. Medina, 779 F.3d 55 (1st Cir.2015), we have just vacated two of a defendant's cond......
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U.S. v. Vargas–dÁvila
...of supervised release. See Williams, 443 F.3d at 48. In a last-ditch argument, the appellant relies on United States v. Franquiz–Ortiz, 607 F.3d 280 (1st Cir.2010) (per curiam). This reliance is mislaid. There, we vacated a sentence because the scant record provided no explanation for the d......
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United States v. Vázquez-Vázquez, 15-2073
...18 U.S.C. § 3553(a)(2), it is evident that this was the District Court's rationale.This case is thus unlike United States v. Franquiz-Ortiz , 607 F.3d 280 (1st Cir. 2010), upon which Vázquez relies. There, we found that the district court had failed to adequately explain its imposition of a......
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U.S. v. Madera–ortiz
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