United States v. Rivera-Berríos

• Citation: 902 F.3d 20
• Decision Date: 24 August 2018
• Docket Number: No. 17-1212,17-1212
• Parties: UNITED STATES of America, Appellee, v. Ezequiel RIVERA-BERRÍOS, Defendant, Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (1st Circuit)

902 F.3d 20

UNITED STATES of America, Appellee,

v.Ezequiel RIVERA-BERRÍOS, Defendant, Appellant.

No. 17-1212

United States Court of Appeals, First Circuit.

August 24, 2018

Andrew S. Crouch for appellant.

Thomas F. Klumper, Assistant United States Attorney, Senior Appellate Counsel, with whom Rosa Emilia Rodríguez-Vélez, United States Attorney, and Mariana E. Bauzá-Almonte, Assistant United States Attorney, Chief, Appellate Division, were on brief, for appellee.

Before Torruella, Selya, and Barron, Circuit Judges.

SELYA, Circuit Judge.

This appeal presents a question of first impression in this circuit: may a sentencing court assess criminal history points for a prison sentence imposed following revocation of probation when the revocation-triggering conduct also constitutes the gravamen of the federal offense of conviction? Concluding, as we do, that the court below correctly factored the revocation sentence into the appellant's criminal history score and proceeded to fashion a substantively reasonable sentence for the offense of conviction, we affirm.

I. BACKGROUND

Because this appeal follows in the wake of a guilty plea, we take the facts from the change-of-plea colloquy, the uncontested portions of the presentence investigation report (PSI Report), and the transcript of the sentencing hearing. See United States v. Rentas-Muñiz, 887 F.3d 1, 2 (1st Cir. 2018) ; United States v. Blodgett, 872 F.3d 66, 68 (1st Cir. 2017).

In December of 2013, defendant-appellant Ezequiel Rivera-Berríos was convicted in a Puerto Rico court on one count of aggravated illegal appropriation and one count of illegal possession of a firearm. The court sentenced him to two consecutive three-year terms of probation. We fast-forward to May of 2016, when local police officers conducted a search of the appellant's residence in Cataño, Puerto Rico. They found a massive cache of weapons, including an AK-47-type rifle loaded with 74 rounds of ammunition. They also discovered a ziplock bag containing three face masks, a black ski hat, and other paraphernalia often associated with criminal activity.

A federal grand jury sitting in the district of Puerto Rico subsequently charged the appellant with being a felon in possession of firearms and ammunition. See 18 U.S.C. § 922(g)(1). After initially maintaining his innocence, the appellant pleaded guilty on September 27, 2016. About five weeks later — subsequent to the appellant's guilty plea but before his federal sentencing — a Puerto Rico court revoked the appellant's terms of probation for the 2013 offenses and sentenced him instead to two consecutive three-year prison terms (the revocation sentence). Although the record contains very few details concerning the revocation proceeding, the parties agree that the revocation was triggered, at least in part, by the same unlawful weapons possession that formed the basis of the appellant's federal conviction under section 922(g)(1).

In the PSI Report, the probation office recommended that the appellant be held responsible for a total offense level of 17 and slotted him into criminal history category (CHC) III, generating a guideline sentencing range of 30 to 37 months. See USSG Ch. 5, Pt. A (Sentencing Table). The appellant objected to his placement in CHC III, but the district court overruled his objection and adopted all of the recommended guideline calculations. At the disposition hearing, the court weighed the factors limned in 18 U.S.C. § 3553(a) and imposed an upwardly variant sentence — 48 months' imprisonment — to be served consecutively to the revocation sentence. This timely appeal followed.

II. ANALYSIS

As a general matter, we review the imposition of a sentence for abuse of discretion. See Gall v. United States, 552 U.S. 38, 51, 128 S.Ct. 586, 169 L.Ed.2d 445 (2007) ; United States v. Martin, 520 F.3d 87, 92 (1st Cir. 2008). This process "is characterized by a frank recognition of the substantial discretion vested in a sentencing court." United States v. Flores-Machicote, 706 F.3d 16, 20 (1st Cir. 2013).

Judicial review of a challenged sentence typically entails "a two-step pavane." Id. At the first step, we consider claims of procedural error, which include "failing to calculate (or improperly calculating) the Guidelines range, treating the Guidelines as mandatory, failing to consider the § 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." Gall, 552 U.S. at 51, 128 S.Ct. 586. If this step is successfully navigated, we proceed to the next step and appraise the sentence for substantive reasonableness. See id. This latter inquiry necessitates an evaluation of "the totality of the circumstances." Id.

A

We begin with the appellant's claim of procedural error. Understanding the anatomy of a sentence helps to lend perspective.

A sentencing court's first task is to establish the proper guideline sentencing range. See id. at 49, 128 S.Ct. 586 ; Martin, 520 F.3d at 91. Two factors combine to produce this range in a particular case: the defendant's total offense level and his CHC. See United States v. Pinkham, 896 F.3d 133, 139 (1st Cir. 2018). The appellant does not quarrel with the district court's calculation of his total offense level but, rather, trains his fire on the court's CHC determination.

A defendant's CHC is derived from his criminal history score. See id.; United States v. Sanchez, 354 F.3d 70, 81 (1st Cir. 2004). By way of example, a defendant who has a criminal history score of four to six is placed in CHC III, whereas a defendant who has a score of two or three is placed in CHC II. See USSG Ch. 5, Pt. A (Sentencing Table). The lower a defendant's CHC, the lower his guideline sentencing range is apt to be. See Pinkham, 896 F.3d at 139.

To arrive at a defendant's criminal history score, the sentencing court must first review any sentences previously imposed on the defendant and determine whether to add zero, one, two, or three points for each such sentence. See USSG §§ 4A1.1, 4A1.2. A prior sentence of imprisonment exceeding one year and one month ordinarily requires the assessment of three points. See id. § 4A1.1(a). By contrast, a sentence of probation or of fewer than sixty days' imprisonment ordinarily adds one point to the defendant's score. See id. § 4A1.1(c). Relatedly, the guidelines require that two more points be added if the defendant committed the offense of conviction (that is, the offense for which he is being sentenced) "while under any criminal justice sentence, including probation, parole, supervised release, imprisonment, work release, or escape status." Id. § 4A1.1(d).

Here, the district court assessed three points for the revocation sentence of six years. See id. § 4A1.1(a). It added two more points because the appellant committed the offense of conviction while on probation. See id. § 4A1.1(d). The appellant challenges the first of these assessments, insisting that only one point should have been awarded since the Puerto Rico court originally imposed a straight probationary sentence. Because this preserved claim of error implicates the interpretation and application of the guidelines, it engenders de novo review. See United States v. McCormick, 773 F.3d 357, 359 (1st Cir. 2014).

Despite its superficial appeal, the appellant's challenge lacks force. When imposing a sentence in a subsequent case, the sentencing court must "add the original term of imprisonment to any term of imprisonment imposed upon revocation [of probation]" in tabulating the defendant's criminal history score. USSG § 4A1.2(k)(1). Where, as here, "the language of the [applicable] guideline is plain and unambiguous, that is the end of the matter." United States v. Suárez-González, 760 F.3d 96, 99 (1st Cir. 2014). Under the luminously clear language of section 4A1.2(k)(1), any term of imprisonment imposed upon revocation of probation must be added to the original probationary term for the purpose of determining the defendant's criminal history score. See United States v. Van Anh, 523 F.3d 43, 61 (1st Cir. 2008).

The Sentencing Commission's commentary fully supports this construction. It admonishes a sentencing court not to "count the original sentence and the resentence after revocation as separate sentences." USSG § 4A1.2, cmt. n.11. Instead, the court is directed to add "the sentence given upon revocation ... to the original sentence of imprisonment, if any," so that "the total should be counted as if it were one sentence." Id. We treat such commentary as authoritative unless it conflicts with federal law, see Stinson v. United States, 508 U.S. 36, 38, 113 S.Ct. 1913, 123 L.Ed.2d 598 (1993) ; United States v. Cates, 897 F.3d 349, 354 (1st Cir. 2018), and the appellant has not identified any such conflict with respect to the quoted commentary.

Given the explicit language of the applicable sentencing guideline and the reinforcement supplied by the commentary, we conclude that the court below was correct in looking to the term of imprisonment imposed upon revocation of probation when computing the appellant's criminal history score for the offense of conviction. Because that sentence exceeded one year and one month — indeed, it aggregated six years — the court appropriately attributed three criminal history points to it. See USSG § 4A1.1(a).

The appellant resists this straightforward conclusion. He argues that the district court should not have factored the revocation sentence into his criminal history score because the conduct that triggered the revocation was essentially the same conduct that formed the basis for the offense of conviction. He predicates this argument on the theory that a court may not count a prior sentence toward a defendant's criminal history score if that prior sentence was imposed for conduct that is "part of the instant offense." USSG § 4A1.2(a)(1) ; see United States v. Cyr, 337 F.3d 96,...