United States v. Marchena-Silvestre

• Decision Date: 06 October 2015
• Docket Number: No. 14–1404.,14–1404.
• Citation: 802 F.3d 196
• Parties: UNITED STATES of America, Appellee, v. Dan Carlos MARCHENA–SILVESTRE, Defendant, Appellant.
• Court: U.S. Court of Appeals — First Circuit

802 F.3d 196

UNITED STATES of America, Appellee

v.Dan Carlos MARCHENA–SILVESTRE, Defendant, Appellant.

No. 14–1404.

United States Court of Appeals, First Circuit.

Oct. 6, 2015.

Juan Carlos Reyes–Ramos, Assistant United States Attorney, with whom Rosa Emilia Rodríguez–Vélez, United States Attorney, and Nelson Pérez–Sosa, Assistant United States Attorney, Chief, Appellate Division, were on brief, for appellee.

Linda J. Thompson, with whom Robert F. Hennessy and Thompson & Thompson, PC, were on brief, for appellant.

Before KAYATTA, SELYA, and DYK,^* Circuit Judges.

Opinion

KAYATTA, Circuit Judge.

Dan Carlos Marchena–Silvestre (“Marchena–Silvestre”) appeals his seventy-two month sentence following his guilty plea to a charge of unlawfully possessing automatic weapons. After careful review of the record, we conclude that the district court's sentencing determination was infected by plain error.

I. Background

Since Marchena–Silvestre's sentence followed a guilty plea, we draw the facts from the plea agreement, the change-of-plea colloquy, the presentence investigation report (PSR), and the sentencing hearing transcript. See United States v. Almonte–Nuñez, 771 F.3d 84, 86 (1st Cir.2014). We rehearse only the facts necessary to form a basis for our analysis.

A. The Offense and Indictment

On October 24, 2013, Puerto Rico law enforcement agents searched Marchena–Silvestre's apartment pursuant to a search warrant. The agents discovered and seized the following arsenal of firearms and ammunition: (1) an AR–15 assault rifle, unlawfully modified to fire in full automatic mode, equipped with an unlawful short barrel, and loaded with one round in the chamber and thirty-seven rounds in the magazine; (2) a Glock pistol, unlawfully modified to fire in full automatic mode, loaded with one round in the chamber and twelve rounds in the magazine; and (3) an additional 127 rounds of ammunition for the two firearms.

After waiving his Miranda rights, Marchena–Silvestre admitted that the firearms and ammunition belonged to him, that he purchased both firearms, and that he also purchased and installed a metal chip that enabled the Glock pistol to fire in full automatic mode. The investigating agents also discovered that the Glock pistol had been stolen from its registered owner. Less than a week after the seizure, a federal grand jury returned an indictment charging Marchena–Silvestre with possessing a machine gun in violation of 18 U.S.C. § 922(o ) and possessing a stolen firearm in violation of 18 U.S.C. § 922(j).

B. The Plea Agreement

Pursuant to a written plea agreement (the Agreement) with the government, Marchena–Silvestre agreed to plead guilty to possessing the machine gun. In turn, the government agreed to dismiss the charge that he possessed a stolen firearm, so long as Marchena–Silvestre complied with the Agreement's terms.

Paragraph 7 of the Agreement, entitled “Applicability of United States Sentencing Guidelines,” contained a chart of “Sentencing Guidelines Calculations” for 18 U.S.C. § 922(o ) that Marchena–Silvestre and the government agreed to “submit” to the court. The chart included a base offense level of 18, see U.S.S.G. § 2K2.1(a)(5), a two-point upward enhancement for a stolen firearm, see U.S.S.G. § 2K2.1(b)(4)(A), and a three-point reduction for acceptance of responsibility, see U.S.S.G. § 3E1.1, to arrive at a total adjusted offense level of 17. Since the parties did not agree to a criminal history category, the chart then set out the applicable guideline sentencing ranges for criminal history categories I (24–30 months) through VI (51–63 months). Paragraph 9, entitled “Sentence Recommendation,” provided that “the government reserves the right to request a term of imprisonment equal to the higher end of the applicable guidelines range and the defendant will request a term of imprisonment equal to the lower end of the applicable guidelines range,” and that “any recommendation by either party for a term of imprisonment above or below the stipulated sentence recommendation constitutes a material breach of the ... Agreement.” The stipulated sentencing recommendations did not bind the district court, and Marchena–Silvestre only retained the right to appeal in the event that the district court did not sentence him within the stipulated guideline sentencing range.

C. The Presentence Investigation Report

The district court accepted Marchena–Silvestre's guilty plea at the plea colloquy, and instructed the probation department to submit a PSR. The PSR departed from the Agreement by recommending a base offense level of 20 rather than 18, due to the added consideration that the defendant's unlawful use of controlled substances made him a “prohibited person” under the guidelines. See U.S.S.G. § 2K2.1(a)(4)(B). The PSR applied the same two base level adjustments as recommended by the Agreement, resulting in a total offense level of 19 (rather than 17 as calculated in the Agreement).

The PSR also detailed Marchena–Silvestre's criminal history: In 2009, he was convicted of carrying a firearm in violation of Puerto Rico's Weapons Law (a misdemeanor for which he was fined $300); and in 2013 he was convicted of illegally occupying property owned by the Puerto Rico Housing Department, resulting in a $50 fine. The two convictions resulted in a criminal history category of I. Cross-referencing that category with the total offense level of 19, the PSR recommended a guideline sentencing range of 30 to 37 months. See U.S.S.G. ch. 5 pt. A (Sentencing Table). In his sentencing memorandum, Marchena–Silvestre stated that he had “no objections” to the PSR.

D. The Sentencing Hearing

The sentencing hearing began with the government informing the court that it would request a sentence at the “high end range of the guideline sentence.” The court proceeded to summarize the facts of the case based on the PSR, noting the serious and illegal arsenal at the heart of the case. The court then moved to reviewing Marchena–Silvestre's criminal history, noting that a combination of prior offenses without serious penalties “is what really strikes you when you see this kind of thing.” The court noted what it thought were two prior firearms charges: one a misdemeanor conviction for carrying a firearm without a license, the other an arrest for carrying what the court described as a “nine millimeter nickel plated pistol.” In fact, the second charge as described in the PSR was for carrying a “nickel magazine loaded with three rounds of .9 caliber ammunition,” a charge dropped for lack of probable cause. No one corrected the court's misreading.

Given a turn to speak again before the court calculated a guideline sentencing range, the prosecutor claimed that he stood by the terms of the Agreement, yet he recommended a 37–month sentence, equaling the high end of the PSR's recommended range (rather than the 30–month high end as specified in the Agreement's chart for a criminal history category of I).

During the ensuing discussion, the district court inexplicably announced that Marchena–Silvestre “has a base offense level of 19,” which was both wrong and contrary to any information that was before the court. The court also neglected to calculate any total offense level. The court made clear that it did not regard the case as a guidelines “heartland” case, and that it felt a lengthier sentence was needed because of the high incidence of criminal violence in the Commonwealth for which there was too little accountability. It recited the “factors to be considered in imposing a sentence” listed in 18 U.S.C. § 3553(a), and made clear that it felt that a “variance is in order under [the] 3553(a) factors.” The court then announced its sentence by beginning with a guideline sentencing range, as follows:

Range is 31 to 41 months. The fine range is 6,000 to 60 thousand, which means nothing in [this] case. Plus supervised release of one to three years. Statutory maximum, ten years. I think that this case, because of the kind of gun, ammunition involved, his prior experiences before the law with guns, requires a sentence of at least 72 months is the sentence I'm imposing.

Unfortunately, the announced guideline sentencing range corresponded to nothing in the PSR nor, for that matter, to any offense level in the sentencing guidelines. See U.S.S.G. ch. 5 pt. A (Sentencing Table). Had the court adopted the PSR's recommendation, the range should have been 30 to 37 months. Even more unfortunately, no one in the courtroom—including even defense counsel—corrected the court.

Piling error on top of errors, when the district court submitted its written statement of reasons, it wrote that the total offense level was 19, that the criminal history category was I, and that the guideline sentencing range was 33 to 41 months (not 31 to 41 months as it had stated earlier, or 30 to 37 months as recommended by the PSR). A guideline sentencing range of 33 to 41 months, however, applies to either a total offense level of 20 with a criminal history category of I, or a total offense level of 19 with a criminal history category of II. See U.S.S.G. ch. 5 pt. A (Sentencing Table). And, of course, that guideline sentencing range includes a higher floor than the (also incorrect) range announced at the hearing.¹

II. Analysis

On appeal, Marchena–Silvestre says that he is entitled to resentencing for three reasons: (1) his sentencing hearing was procedurally flawed, (2) his above-guideline 72–month imprisonment term is substantively unreasonable, and (3) the government materially breached the plea agreement. Because Marchena–Silvestre did not raise these objections in the district court, we review only for plain error. See United States v. Dávila–González, 595 F.3d 42, 47 (1st Cir.2010) ; see also United States v. Ruiz–Huertas, 792 F.3d 223, 228 (1st Cir.2015). The plain error standard of review places the burden on Marchena–Silvestre to make four showings in order to justify reversal: “(1) that an error occurred (2) which was clear...