United States v. Medina–Villegas

• Decision Date: 27 November 2012
• Docket Number: No. 11–2076.,11–2076.
• Citation: 700 F.3d 580
• Parties: UNITED STATES of America, Appellee, v. Hernardo MEDINA–VILLEGAS, Defendant, Appellant.
• Court: U.S. Court of Appeals — First Circuit

700 F.3d 580

UNITED STATES of America, Appellee,

v.Hernardo MEDINA–VILLEGAS, Defendant, Appellant.

No. 11–2076.

United States Court of Appeals, First Circuit.

Nov. 27, 2012.

Michael C. Bourbeau and Bourbeau & Bonilla, LLP on brief for appellant.

Rosa Emilia Rodriguez–Velez, United States Attorney, Nelson Pérez–Sosa, Assistant United States Attorney, Chief, Appellate Division, and Luke Cass, Assistant United States Attorney, on brief for appellee.

Before BOUDIN, SELYA and LIPEZ, Circuit Judges.

SELYA, Circuit Judge.

A jury convicted defendant-appellant Hernardo Medina–Villegas on nine counts growing out of a conspiracy to commit armed robbery and the unlawful killing of a guard during the robbery. In an earlier multi-defendant appeal, we affirmed the appellant's convictions and sentences on eight of the nine counts. See United States v. Catalán–Roman, 585 F.3d 453, 475 (1st Cir.2009). As to the remaining count, however, we affirmed the appellant's conviction but vacated his sentence in order to afford him an opportunity to allocute. See id. At resentencing on that count, the district court heard the appellant's allocution and proceeded to reinstate the original sentence of life imprisonment without the possibility of release.

The appellant again repairs to this court claiming that the reimposed sentence is both procedurally and substantively unreasonable. In addition, he attempts to raise a double jeopardy claim that the district court declined to address on remand. After careful consideration, we affirm.

Our earlier opinion contains an exegetic discussion of the background facts, the charges lodged against the appellant, and the travel of the case, see id. at 457–60, and we assume the reader's familiarity with that account. For present purposes, a sketch suffices.

A federal grand jury sitting in the District of Puerto Rico indicted the appellant and others on charges arising out of the robbery of an armored truck and the killing of a guard. After a trial, the jury convicted the appellant on nine counts. The counts pertinent to this appeal are counts eight and nine. Count eight charges the appellant with aiding and abetting the use and discharge of firearms during and in relation to a crime of violence death resulting. See18 U.S.C. §§ 2, 924(j). Count nine charges the appellant with aiding and abetting the use and discharge of firearms during and in relation to a crime of violence. See id. §§ 2, 924(c)(1)(A)(iii). At the time of the original disposition, the district court sentenced the appellant, inter alia, to life imprisonment without the possibility of release (count eight) and a consecutive term of thirty years' imprisonment (count nine).

On his first appeal, the appellant advanced a broad array of claims. With respect to count eight, he argued (among other things) that the district court had not afforded him an opportunity to allocute. We found merit in this claim, vacated the sentence on count eight, and remanded to give the appellant a concinnous opportunity to allocute. See Catalán–Roman, 585 F.3d at 475.

At the resentencing hearing, the appellant asked the district court to entertain a double jeopardy argument addressed to count nine. The court, apparently deeming such an issue to be beyond the scope of the remand, declined to adjudicate it. It then heard the appellant's allocution on count eight and reinstated the sentence previously imposed. This timely appeal ensued.

We start with the sentence imposed on count eight. Although the appellant's brief is amorphous, we assume, favorably to him, that his challenge to his sentence encompasses both procedural and substantive grounds.

We review preserved objections to both the procedural and substantive reasonableness of a sentence for abuse of discretion. See Gall v. United States, 552 U.S. 38, 46, 128 S.Ct. 586, 169 L.Ed.2d 445 (2007); United States v. Martin, 520 F.3d 87, 92 (1st Cir.2008). “The review process is bifurcated: we first determine whether the sentence imposed is procedurally reasonable and then determine whether it is substantively reasonable.” United States v. Clogston, 662 F.3d 588, 590 (1st Cir.2011).

The appellant's claim of procedural error rests on the provisions of 18 U.S.C. § 3553. Pertinently, this statute requires the sentencing court to consider the variety of available sentences, see id. § 3553(a)(3), and to “state in open court the reasons for its imposition of the particular sentence,” id. § 3553(c). In this regard, the appellant notes that the jury could not agree on a life sentence for count eight and, therefore, the district court had the option to impose a lesser sentence.¹ Given this circumstance, he argues that the court's failure either to state why it did not select a lesser sentence or to explain its reasons for the reimposed sentence constitutes reversible error.

This claim of error comes late in the day. At resentencing, the appellant did not object to the court's failure to offer an explanation of the reasons underlying the sentence, nor did he object to the proceeding on any related ground. Accordingly, his present claim has not been preserved, and our review is for plain error. See United States v. Pakala, 568 F.3d 47, 56 (1st Cir.2009).

The test for plain error is familiar. As we said in United States v. Duarte, 246 F.3d 56 (1st Cir.2001), “[r]eview for plain error entails four showings: (1) that an error occurred (2) which was clear or obvious and which not only (3) affected the defendant's substantial rights, but also (4) seriously impaired the fairness, integrity, or public reputation of judicial proceedings.” Id. at 60.

It is settled law that a district court's failure adequately to explain a sentence as required by section 3553(c), without more, is not plain error. See United States v. Mangual–Garcia, 505 F.3d 1, 16 (1st Cir.2007). Rather, “a reversal under plain error review requires a reasonable probability that, but for the error, the district court would have imposed a different, more favorable sentence.” Id. at 15 (internal quotation marks omitted). This is equally true when the claim of error is focused on an alleged failure to comply with section 3553(a). See, e.g., United States v. Guzmán, 419 F.3d 27, 32 (1st Cir.2005).

“[T]o establish a reasonable probability of a different sentence ... the appellant has the burden of identifying specific facts that convince us that the district court considered a significant improper factor, failed to consider a significant proper factor, or made a significant error in balancing the factors.” Mangual–Garcia, 505 F.3d at 16. As we explain below, the appellant has not made such a showing.

To begin, the appellant's sentence on count eight is within the Guideline Sentencing Range (GSR) for the offense of conviction. This time around, the district court heard the appellant's full allocution as well as arguments of counsel. Moreover,the sentencing judge had presided over the trial and was intimately familiar with the nuances of the case. To cinch the matter, the appellant has not identified any factors that make it likely that he would receive a different sentence on remand.²

The upshot is that, on this record, the likelihood of a different sentence on remand is an empty hope unsubstantiated by any plausible rationale. Accordingly, there is no principled way that we can find plain error arising out of the district court's failure to effect literal compliance with the “explanation” requirement of section 3553.³

The appellant next asserts that his sentence on count eight is substantively unreasonable. Our consideration of this claim starts with our recognition that the sentence—life imprisonment without the possibility of release—falls within the GSR for the offense of conviction.

This is an important datum. As we explained in an earlier case, challenging a sentence as substantively unreasonable is a burdensome task—and one that is even more operose where, as here, the challenged sentence is within a properly calculated GSR. See Clogston, 662 F.3d at 592–93. It follows inexorably that a “defendant who protests his within-the-range sentence on this ground must adduce fairly powerful mitigating reasons and persuade us that the district court was unreasonable in balancing pros and cons.” Id. at 593 (internal quotation marks omitted). Under this standard, it is not enough that we, if sitting as a court of first instance, might have selected a more lenient sentence. See United States v. Madera–Ortiz, 637 F.3d 26, 30 (1st Cir.2011).

The appellant has not come close to crossing this threshold. The offense of conviction is grave. The day before the robbery, the appellant carjacked a getaway vehicle and stole from it a Glock pistol. He then participated in the robbery of an armored truck and the murder of a guard assigned to that truck, using the purloined Glock. He was the first of the malefactors to open fire during the confrontation—and he did so at close range. When, as now, the record makes manifest that an armed defendant played a leading part in a premeditated robbery of an armored vehicle, resulting in the death of a guard, a sentence of life imprisonment cannot plausibly be said to be unreasonable. See United States v. Morales–Machuca, 546 F.3d 13, 25–26 (1st Cir.2008) (rejecting claim of substantive unreasonableness advanced by...