United States v. Guzman-Fernandez

• Decision Date: 01 June 2016
• Docket Number: No. 14-1576,14-1576
• Citation: 824 F.3d 173
• Parties: United States of America, Appellee, v. Javier Guzman–Fernandez, Defendant, Appellant.
• Court: U.S. Court of Appeals — First Circuit

824 F.3d 173

United States of America, Appellee

v.Javier Guzman–Fernandez, Defendant, Appellant.

No. 14-1576

United States Court of Appeals, First Circuit.

June 1, 2016

Mary Davis and Tisdale & Davis, P.A., Portland, ME, on brief for appellant.

Rosa Emilia Rodríguez–Vélez, United States Attorney, Nelson Pérez–Sosa, Assistant United States Attorney, Chief, Appellate Division, and Thomas F. Klumper, Assistant United States Attorney, on brief for appellee.

Before Thompson, Lipez, and Barron, Circuit Judges.

LIPEZ

, Circuit Judge.

Javier E. Guzman–Fernandez (“Guzman”) pled guilty to one count of conspiring to commit Hobbs Act robberies in violation of 18 U.S.C. § 1951(a)

. After calculating Guzman's guideline sentencing range (“GSR”) to be 97 to 121 months, the district court imposed a 135-month term of imprisonment. Guzman appeals his sentence, arguing that the upward variance was both procedurally and substantively unreasonable. Finding no errors, we affirm.

I.

In June 2010, Guzman, who was a supervisor at Kmart, provided his co-conspirators with security information about one of the Kmart stores, including the layout of the store and the identity of the security guard. Relying on this information, Guzman's co-conspirators robbed the store. The robbery involved the use of a firearm, physical restraint of the store security guard, and injury to the guard.

In December 2010, Guzman provided security details about another Kmart store to his co-conspirators and prepared a hiding spot in the store for his co-defendant, who then hid in that spot until the store closed. When Guzman and other employees encountered the robber at the store the next morning,¹ Guzman pretended to be both a victim and a negotiator between the employees and the robber. The second robbery involved a firearm, restraint of the store employees, and injury to the store watchman. The value of all the property taken during the two robberies exceeded $50,000.

Guzman pled guilty to conspiracy to commit Hobbs Act robberies. See 18 U.S.C. § 1951(a)

. His plea agreement and presentence investigation report recommended a GSR of 97 to 121 months, based on a total offense level of 30 and a criminal history category of I. The offense level calculation included multiple enhancements: (1) a five-level increase applied because a firearm was brandished, see U.S.S.G. § 2B3.1(b)(2)(C) ; (2) a two-level increase applied because victims sustained bodily injury, see id. § 2B3.1(b)(3)(A) ; (3) a two-level increase applied because victims were physically restrained, see id. § 2B3.1(b)(4)(B)

; (4) a two-level increase applied because the loss exceeded $50,000, see id. § 2B3.1(b)(7)(C)² ; and (5) a two-level increase applied because Guzman “abused [his] position of public or private trust, ... in a manner that significantly facilitated the commission or concealment of the offense,” id. § 3B1.3. At the sentencing hearing, Guzman's counsel argued for a 97-month term of imprisonment because “all the worst aspects of this case have been included in the [GSR] calculation.” The government argued for a 120-month sentence.

The district court rejected both proposed sentences and imposed a 135-month term of imprisonment, a 14-month variance from the top end of the GSR. In explaining its decision, the court considered the sentencing factors as set forth in 18 U.S.C. § 3553(a)

. The court's observations included the following:

• Guzman's age and personal background suggested that he had “additional controls and additional insight as to what are the responsibilit [ies] of a mature individual”;

• he was involved in two robberies;

• Guzman's insider role in the two robberies—including providing information “used to intimidate and threaten employees” and playing both the “victim's role” and “the role of a negotiator”—demonstrated the “boldness” of the conduct and its “planned” and “deliberate” nature; and

• the two robberies were serious crimes, involving restraint of the victims and injury to the store employees, and hence were different from the typical Hobbs Act robberies found in the “Federal case law.”

The district court determined that the unique facts of the robberies and Guzman's personal circumstances “require[d]” the variance in order “to promote respect for the law, ... to deter criminal conduct, and protect the public and hard working people who [were] making basically minimum wage.” See id. § 3553(a)(2). The court concluded, in short, that a 14-month variance was warranted to “provide just punishment with what happened.” Guzman's counsel “object[ed] to the variance and the Court's application to the 3553 factors” because “all the worst aspects of th[e] case ha[d] been included in the [GSR] calculation.”

II.

The reasonableness of a district court's sentencing determinations has procedural and substantive dimensions. United States v. Politano , 522 F.3d 69, 72 (1st Cir. 2008)

. The procedural inquiry asks whether the district court committed 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.” United States v. Flores–Machicote , 706 F.3d 16, 20 (1st Cir. 2013) (alterations in original) (quoting Gall v. United States , 552 U.S. 38, 51, 128 S.Ct. 586, 169 L.Ed.2d 445 (2007) ). The substantive inquiry “focuses on the duration of the sentence in light of the totality of the circumstances.”

United States v. Del Valle–Rodríguez , 761 F.3d 171, 176 (1st Cir. 2014)

.

Guzman contends that his sentence was procedurally and substantively unreasonable.³ We review both claims for abuse of discretion. Id.

(citing Gall , 552 U.S. at 46, 128 S.Ct. 586 ). Indeed, while the government argues that a plain error standard should apply to Guzman's procedural unreasonableness claim, we find that Guzman's objection in the proceedings below—that “all the worst aspects of this case” have been accounted for in the Guidelines calculation—sufficed to place the district court on notice of the procedural claim at issue. Cf. United States v. Ríos–Hernández , 645 F.3d 456, 462 (1st Cir. 2011). Hence, we review both reasonableness claims under the abuse-of-discretion standard. See Politano , 522 F.3d at 72.

A. Procedural Error

Guzman argues that the district court failed to explain the reasons for the upward variance from the GSR, independent of the factors that were already accounted for in the offense level calculation.

Our review indicates, however, that the district court articulated at least one additional reason, beyond those accounted for in the total offense level, in considering the § 3553(a)

factors. The court discussed Guzman's mature age and personal background, noting that he planned and carried out the dangerous crimes despite his understanding of the nature and severity of his conduct. See United States v. Martin , 520 F.3d 87, 91 (1st Cir. 2008) (explaining that sentencing decisions are “a unique study in the human failings that sometimes mitigate, sometimes magnify, the crime and the punishment to ensue” (quoting Gall , 552 U.S. at 52, 128 S.Ct. 586 )).

Where the district court relied on factors already accounted for in the total offense level, namely, Guzman's insider role, the fact of two robberies, injury, and restraint, the court justified its reliance with an explanation. We have previously held that, “[w]hen 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.’ ” Flores–Machicote , 706 F.3d at 21

(quoting Martin , 520 F.3d at 91 ). When a factor within those § 3553(a) considerations is already included in the total offense level that determines the GSR, the 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. Zapete–Garcia , 447 F.3d 57, 60 (1st Cir. 2006) ; see also United States v. Smith , 445 F.3d 1, 6–7 (1st Cir. 2006).

Here, the district court distinguished Guzman's insider participation from the typical “abuse[ ] ... of ... private trust” reflected in the Guidelines. U.S.S.G. § 3B1.3

. Specifically, the court explained that, in addition to the immediate consequence of “facilitat[ing] the commission or concealment of the offense,” id. Guzman's insider role spoke to the “boldness” of the conduct and its “planned” and “deliberate” nature. Similarly, while the fact that there were two robberies may have been considered in calculating the total loss amount (which then enhanced the total offense level applicable to Guzman), see id. § 2B3.1(b)(7)(C), the court relied on the number of robberies to emphasize the seriousness or nature of the conduct in imposing an upward variance—a consideration different in kind from the combined harm or losses. The court also explained how the particular facts of the robberies reinforced the seriousness of the injury and restraint, which collectively differentiated this case from the typical “in and out” robberies to which the Guidelines apply.⁴

“[A] sentencing court's obligation to explain a variance requires the court to offer a plausible and coherent rationale—but it does not require the court to be precise to the point of pedantry.” Del Valle–Rodríguez , 761 F.3d at 177

. We conclude that the district court did not abuse its discretion in articulating the reasons for an above-GSR sentence.

B. Substantive Error

Guzman also contends that his sentence is substantively unreasonable because the district court relied on factors already considered in the Guidelines enhancements to impose a sentence “well above” the GSR, even though his conduct was not so egregious as to warrant any variance. The substantive assessment of a criminal sentence...