United States v. Nieves-Mercado

• Decision Date: 30 January 2017
• Docket Number: No. 15-1627,15-1627
• Citation: 847 F.3d 37
• Parties: UNITED STATES of America, Appellee, v. Joshua J. NIEVES–MERCADO, Defendant, Appellant.
• Court: U.S. Court of Appeals — First Circuit

847 F.3d 37

UNITED STATES of America, Appellee,

v.Joshua J. NIEVES–MERCADO, Defendant, Appellant.

No. 15-1627

United States Court of Appeals, First Circuit.

January 30, 2017

Cathryn A. Neaves on brief for appellant.

Rosa Emilia Rodríguez–Vélez , United States Attorney, Mariana E. Bauzá-Almonte , Assistant United States Attorney, Chief, Appellate Division, and Francisco A. Besosa-Martínez , Assistant United States Attorney, on brief for appellee.

Before Howard, Chief Judge, Thompson and Kayatta, Circuit Judges.

KAYATTA, Circuit Judge.

The district court sentenced defendant Joshua Nieves–Mercado ("Nieves") to 60 months' imprisonment, a term that exceeded by 9 months the top of the guidelines sentencing range and by 14 months the government's recommendation pursuant to a plea agreement. Nieves appeals, arguing that the court abused its discretion by considering unreliable evidence, by varying upward based on information already factored into the guidelines sentencing range, and by ignoring "the significant mitigating factor" of his youth. According to Nieves, these errors rendered his sentence procedurally and substantively unreasonable. We disagree and so affirm.

I.

We draw the following facts from the plea agreement and change-of-plea colloquy, the undisputed portions of the presentence investigation report ("PSR"), and the sentencing hearing. See United States v. Rivera–González, 776 F.3d 45, 47 (1st Cir. 2015).

The criminal conduct at issue took place in the early morning hours of March 15, 2013. Nieves and two other men were traveling westbound on the highway between Río Grande and Carolina in Puerto Rico. Their vehicle approached an intersection and pulled alongside a red Ford Explorer stopped at the light. Nieves exited the vehicle and carried "a long pointed tip object" to the driver's side of the Explorer. He first ordered the driver to get out. When she did not immediately comply, he opened the driver's side door, yanked the driver from her seat, and pushed her toward the highway lane divider. Nieves drove away in the Explorer, and the vehicle in which he arrived likewise fled the scene.

Hours later, reports surfaced of three armed individuals disassembling a red Ford Explorer in Canóvanas. Police officers responded to the scene and observed two men removing parts from the Explorer. The officers took both men into custody. Their investigation confirmed that the Explorer was the vehicle carjacked hours earlier. It also led them to Nieves, whom federal officers arrested the following day. Nieves waived his constitutional rights and admitted to his participation in the carjacking.

On March 20, 2013, a grand jury returned a one-count indictment charging Nieves and the two other men with carjacking and aiding and abetting in violation of 18 U.S.C. § 2119(1). Nieves pled guilty to that charge, pursuant to a plea agreement with the government, on September 23, 2013. The agreement obligates the government to recommend a sentence in "the middle range of the applicable guideline," with no stipulation as to Nieves's criminal history category. It also includes a sentencing guidelines calculation table that lists Nieves's total offense level as twenty-two, reflecting the following: a base offense level of twenty, U.S. Sentencing Guidelines Manual § 2B3.1(a) ; plus a two-level enhancement because the offense involved carjacking, id.§ 2B3.1(b)(5) ; plus a three-level enhancement because Nieves brandished a dangerous weapon, id.§ 2B3.1(b)(2)(E) ; less three levels because Nieves accepted responsibility, id.§ 3E1.1. The parties agreed to seek no further adjustment to, or departure from, the base offense level.

The timely produced PSR mirrors the offense level computation in the plea agreement, finds a criminal history score of zero, and computes Nieves's criminal history category as I. Additionally, the PSR provides a detailed description of the offense conduct according to the reports of investigation. As relevant to this appeal, the PSR states that FBI agents interviewed Nieves's codefendants on the date of their arrest. Both admitted their role in the carjacking and subsequent disassembling of the Explorer, explaining that Nieves approached one of the codefendants after the carjacking, told him where to find the Explorer, and suggested that he remove and sell the radiator to satisfy a debt Nieves owed to that codefendant.

The sentencing hearing took place on April 29, 2015. The district court asked defense counsel whether he had read and examined the PSR. Defense counsel responded that he had and lodged one objection unrelated to the issues on appeal. Defense counsel also confirmed that he had explained the PSR to his client and that they had discussed it together. He then addressed the court, providing context for a juvenile adjudication briefly referenced in the PSR, and noting Nieves's compliance with the terms of his probation during a previous period of supervision. He also referenced literature calling into question the positive correlation between incarceration and deterrence, and he reported statistics indicating a higher percentage of guidelines sentences in the District of Puerto Rico compared to the national average. Finally, defense counsel argued that offender characteristics including age, employment, and education made Nieves's potential for rehabilitation "tremendous" and his risk of recidivism "low."

The court then heard from Nieves. In his address to the court, he stated, "I must apologize to the victims, because what happened was a momentary thing and I ask them to forgive me." The court responded by questioning Nieves's assertion:

Mr. Nieves, I think it is very good and proper for you to ask the victims for forgiveness. However you mentioned that this event and what transpired of you committing this carjacking was ... the result of a spur of the moment thing. However, there is information to the effect that whatever the situation was between you and your two codefendants and whether the three of you were arguing or not, at the time in which the vehicle is found you had stated that you had a debt, you owed money to a codefendant of yours and you told him, take the car, sell the parts and use that to cover for my debt. So it had a purpose, it served a purpose.

Defense counsel interjected that the information on which the court relied "did not come from the defendant" and was instead "an allegation from the other codefendant." He explained that, although Nieves accepted responsibility for his participation in the carjacking, he had a different account of his motivation and his conduct following the carjacking. Defense counsel questioned the credibility of the allegation reported in the PSR, arguing that it was an "improper factor for the Court to consider" because the court lacked "any elements on the record before it to determine if the codefendants [sic] statement is true and he is not trying to minimize his participation or if our client [sic] version is true and he is trying to minimize his participation." The court made no explicit ruling with respect to the information, instead indicating that it would hear from the government.

After hearing from the government, which did not comment on the disputed evidence, the district court imposed its sentence. It agreed with the total offense level listed in the plea agreement of twenty-two and, applying a criminal history category of I, calculated the applicable guidelines sentencing range as 41 to 51 months of imprisonment. See U.S. Sentencing Guidelines Manual ch. 5, pt. A (Sentencing Table). Turning to the sentencing factors enumerated in 18 U.S.C. § 3553(a), the court discussed "the history and characteristics of the defendant," id.§ 3553(a)(1), including Nieves's age, education, employment history, family situation, history of drug abuse, and criminal record. The court also considered "the nature and circumstances of the offense," id. such as the events immediately preceding the carjacking and the injury suffered by the victim. It imposed an upwardly variant sentence of 60 months' imprisonment, followed by a term of supervised release not challenged on appeal.

Defense counsel asked the court to reconsider the sentence, noting that it exceeded the government's recommendation and arguing that the additional prison time did not further the goals of punishment set forth in § 3553(a)(2). The court, in denying reconsideration, emphasized that Nieves's actions evinced his "lack of maturity" and "disregard for human life and disregard for others." The court also stated,

I still have my doubts as to whether this was a way or mechanism of paying a debt. I have to base this on information that is available, that is relevant to the case, given by a person against his own interest per say [sic] in terms of explaining how he was there and why he was there and how he got the vehicle and why this person got to be related.

The court further explained that it "factored in" several considerations, including "his prior record of delinquency, the seriousness of this offense [, and] ... the leading role that he had in being the one that decided and instructed the other ones."

II.

Nieves advances several arguments on appeal.¹ First, he argues that the district court impermissibly considered unreliable evidence in determining his sentence. Next, he contends that the court justified the upward variance with factors the guidelines sentencing range already took into account. Additionally, he claims that the court overlooked the importance of his youth, which Nieves declares a "significant mitigating factor." According to Nieves, these errors produced a substantively unreasonable sentence.

A.

"We review sentencing decisions imposed under the advisory Guidelines, whether outside or inside the applicable [guidelines sentencing range], for reasonableness." United States v. Pantojas–Cruz, 800 F.3d 54, 58 (1st Cir. 2015). Although we customarily apply the abuse of discretion standard to assess...