United States v. Rivera-Gonzalez

• Citation: 809 F.3d 706
• Decision Date: 08 January 2016
• Docket Number: No. 14–1402.,14–1402.
• Parties: UNITED STATES of America, Appellee, v. Osvaldo RIVERA–GONZALEZ, Defendant, Appellant.
• Court: U.S. Court of Appeals — First Circuit

809 F.3d 706

UNITED STATES of America, Appellee,
v.
Osvaldo RIVERA–GONZALEZ, Defendant, Appellant.

No. 14–1402.

United States Court of Appeals, First Circuit.

Jan. 8, 2016.

809 F.3d 707

Francisco A. Besosa–Martínez, Assistant United States Attorney, with whom Rosa Emilia Rodriguez–Velez, United States Attorney, and Nelson Pérez–Sosa, Assistant United States Attorney, were on brief for appellee.

José Ramon Olmo–Rodríguez, with whom Olmo & Rodríguez Matias was on brief for appellant.

Before BARRON, HAWKINS^* , and LIPEZ, Circuit Judges.

BARRON, Circuit Judge.

The defendant in this appeal, Osvaldo Rivera–Gonzalez ("Rivera"), brings a variety of challenges to his federal sentence. Because we agree with one of these challenges, we vacate and remand.

I.

In September of 2013, the Puerto Rico Police Department (the "PRPD"), while investigating two murders, obtained a search warrant for the home of Rivera's grandmother. After discovering marijuana, a firearm, and a few bullets, the PRPD arrested Rivera, his brother, and his grandmother. Twelve hours later, Rivera, without counsel, gave a statement to the PRPD in which Rivera confessed to the two murders and an assault.

The PRPD turned Rivera over to federal custody. A federal grand jury then returned a four-count indictment against him. The indictment charged Rivera with one count each of: conspiracy to distribute a controlled substance, 21 U.S.C. §§ 841(a)(1), 846, possession with intent to distribute a controlled substance, id. § 841(a)(1), possession of a firearm by a

809 F.3d 708

prohibited person, 18 U.S.C. § 922(g)(3), and aiding and abetting possession of a firearm in furtherance of a drug crime, id. §§ 2, 924(c).

Later, Rivera was also charged in Puerto Rico court with crimes directly related to the murders and assault.

Rivera worked out a plea deal with the federal government, by which he pled guilty to two of the federal indictment's four counts: conspiracy to distribute a controlled substance, 21 U.S.C. §§ 841(a)(1), 846, and aiding and abetting possession of a firearm in furtherance of a drug crime, 18 U.S.C. §§ 2, 924(c). The plea agreement did not mention the murders or assault.

In the plea agreement, the government and defense counsel agreed to recommend a prison sentence within a United States Sentencing Guidelines ("U.S.S.G.") range of 0–12 months' imprisonment for the conspiracy conviction.¹ The parties also agreed to recommend a prison sentence of 60 months—the statutory minimum—for the § 924(c) conviction. The parties further agreed to recommend that the latter sentence run consecutively to the sentence for the conspiracy conviction, for a total sentence of 60–72 months' imprisonment.

After Rivera pled guilty, the probation office filed a presentence investigation report ("PSR"). The PSR detailed Rivera's confession to the two murders and assault. The PSR, like the plea agreement, calculated a guidelines sentence of 60 months, the statutory minimum, for the § 924(c) charge. However, in calculating the base offense level for the sentence for the conspiracy conviction, the PSR included a cross reference to the sentencing guidelines for murder convictions.² Based on that cross-reference, the PSR identified Rivera's total offense level as 40, resulting in a guidelines sentencing range of 292–365 months' imprisonment for the conspiracy conviction, although 60 months was the statutory maximum.

Rivera objected to the PSR on the grounds that there was insufficient evidence that the murders were related to the conspiracy charged and that the proof of the murders was insufficient to find that Rivera had committed them by a preponderance of the evidence. The defendant made no other objection to the PSR.

At the sentencing hearing, the government, in accordance with the plea agreement, recommended a total sentence of 60–66 months' imprisonment for both convictions. The government recommended the total sentence be imposed as follows: 60 months for the § 924(c) conviction and 0 to 6 months for the conspiracy conviction.

With respect to the conspiracy conviction, the District Court agreed not to rely on the cross reference to the sentencing guidelines for murder convictions in calculating Rivera's guidelines sentencing range. The District Court imposed a sentence of 6 months in prison for the conspiracy conviction. With respect to the § 924(c) conviction, the District Court imposed a sentence of 360 months' imprisonment. In doing so, the District Court explained that it was using the 18 U.S.C. § 3553(a) factors to select a sentence within the range of statutorily permissible sentences,

809 F.3d 709

which spanned from 60 months to life in prison.

There was discussion at the sentencing hearing about whether a prison sentence above 60 months—and thus above the mandatory minimum sentence under 18 U.S.C. § 924(c) —would constitute a departure, rather than a variance. Defense counsel argued that a departure would require that the defendant receive notice of that departure prior to sentencing. See Fed.R.Crim.P. 32(h). The District Court determined, however, that a prison sentence greater than 60 months for the § 924(c) violation would be a variance, rather than a departure, and thus would not trigger a prior notice requirement.

The District Court then imposed a 360–month sentence for the § 924(c) conviction, with the 6–month prison sentence for the conspiracy conviction to run consecutively. Thus, the District Court imposed a total sentence of 366 months of imprisonment.

At sentencing, there was also discussion of whether the federal sentence should be consecutive to, or concurrent with, any Puerto Rico sentence. Thus, the District Court was aware at sentencing that charges were pending against the defendant in Puerto Rico court on the related crimes of murder and assault. The District Court stated in imposing the federal sentence that the 360–month prison sentence for the § 924(c) conviction would run concurrently with any sentence that the Puerto Rico court might impose, following any convictions of Rivera on the Puerto Rico charges then pending. The District Court also stated that the six-month sentence for the conspiracy conviction would run consecutively to any other sentence.

In response, defense counsel argued that § 924(c) prohibits district courts from imposing a sentence for that crime that runs concurrently with any other sentence. The District Court stated that § 924(c) only required the federal sentences for the conspiracy and § 924(c) convictions to run consecutively and that it "would be totally unfair" for the federal and Puerto Rico sentences to run consecutively as well.

In stating that the federal sentence would run concurrently to any Puerto Rico sentence, the District Court explained that "I don't think that I should make it fully consecutive. I don't think I should do that." He then said that "BOP will not dare to calculate anything else than I have said." And the Court added, "if the Bureau of Prisons wants to do what they want to do, you let me know."

Following the District Court's statement about whether the federal and Puerto Rico sentences would run concurrently or consecutively, defense counsel again asked the District Court how the federal...