United States v. Rivera-Berríos, No. 19-1467

• Decision Date: 03 August 2020
• Docket Number: No. 19-1467
• Citation: 968 F.3d 130
• Parties: UNITED STATES of America, Appellee, v. Julian G. RIVERA-BERRÍOS, Defendant, Appellant.
• Court: U.S. Court of Appeals — First Circuit

968 F.3d 130

UNITED STATES of America, Appellee,

v.Julian G. RIVERA-BERRÍOS, Defendant, Appellant.

No. 19-1467

United States Court of Appeals, First Circuit.

August 3, 2020

Rafael F. Castro Lang on brief for appellant.

W. Stephen Muldrow, United States Attorney, Mariana E. Bauzá-Almonte, Assistant United States Attorney, Chief, Appellate Division, and Antonio L. Perez-Alonso, Assistant United States Attorney, on brief for appellee.

Before Thompson, Selya, and Barron, Circuit Judges.

SELYA, Circuit Judge.

After defendant-appellant Julian G. Rivera-Berríos entered a guilty plea to a single count charging him with illegal possession of a machine gun, see 18 U.S.C. § 922(o)(1), the district court sentenced him to a forty-two-month term of immurement — a year above the top of the guideline sentencing range. The appellant challenges this upwardly variant sentence, asserting that the sentencing court erred by (among other things) varying upward from the range without adequately distinguishing his case from the mine-run of machine gun possession cases. Because the record reveals nothing that distinguishes this case from a garden-variety machine gun possession case within the contemplation of the sentencing guidelines, we vacate the appellant's sentence and remand for resentencing within the guideline sentencing range.

I. BACKGROUND

We briefly rehearse the relevant facts and travel of the case. When — as in this instance — a sentencing appeal follows a guilty plea, we glean the facts from the plea colloquy, the presentence investigation report (PSI Report), and the transcript of the disposition hearing. See United States v. Miranda-Díaz, 942 F.3d 33, 37 (1st Cir. 2019).

In July of 2018, law enforcement officers were surveilling a restaurant in Bayamón, Puerto Rico, hoping to locate a federal fugitive. During this surveillance, the officers observed the appellant, then age twenty-eight, interacting with the fugitive. When some of the officers entered the restaurant to effectuate the fugitive's arrest, other officers (charged with perimeter security) saw the appellant toss a firearm and a detached magazine out of a window. The firearm proved to be a Glock machine pistol equipped with a device that enabled it to fire automatically and loaded with a high-capacity magazine containing eighteen rounds. The detached magazine carried a like number of rounds.

The appellant was arrested, and a federal grand jury sitting in the District of Puerto Rico indicted him within a matter of days. The indictment contained two counts, one charging the appellant with being a felon in possession of a firearm and ammunition, see 18 U.S.C. § 922(g)(1), and the second charging him with illegally possessing a machine gun, see id. § 922(o)(1). The appellant initially maintained his innocence as to both charges.

In January of 2019, the appellant reversed his field and entered a straight guilty plea to the charge of illegal possession of a machine gun.¹ Thereafter, the probation office prepared and submitted the PSI Report. The Report noted that the appellant had been living with his girlfriend and their two young children, that he had worked at various jobs, that he had no prior criminal record, and that he claimed to have purchased the firearm for self-protection. It also noted his frequent use of marijuana. After reviewing the details of the offense and finding no aggravating circumstances warranting a variance — for example, there was no evidence that the appellant had employed the gun in any criminal venture or (for that matter) had ever used it — the PSI Report calculated the guideline sentencing range as twenty-four to thirty months.² Neither the government nor the appellant challenged this calculation, and both sides recommended that the court impose a sentence at the low end of the range.

Before imposing sentence, the district court mentioned a few biographical facts pertaining to the appellant. Shifting gears, the court spoke at some length about the incidence of machine guns and related violence in Puerto Rico. The court then sentenced the appellant to an upwardly variant term of immurement: forty-two months. This timely appeal followed.

II. ANALYSIS

We review preserved claims of sentencing error 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). Under this approach, we assay the sentencing court's factual findings for clear error and evaluate its legal conclusions de novo. See United States v. Díaz-Lugo, 963 F.3d 145, 151 (1st Cir. 2020) ; United States v. Flores-Machicote, 706 F.3d 16, 20 (1st Cir. 2013). Typically, we first examine claims of procedural error and inquire into the substantive reasonableness of a sentence only after it has passed procedural muster. See Miranda-Díaz, 942 F.3d at 39 ; Martin, 520 F.3d at 92.

Here, the government contends that we should review the appellant's procedural claims for plain error because (in its view) his objections below lacked sufficient specificity. We reject this contention. To preserve a claim of procedural sentencing error for appellate review, a defendant's objection need not be framed with exquisite precision. See United States v. Soto-Soto, 855 F.3d 445, 448 n.1 (1st Cir. 2017) ; cf. Bryant v. Consol. Rail Corp., 672 F.2d 217, 220 (1st Cir. 1982) (explaining that counsel did not have to "cite to the specific rule or use any particular form of words" to preserve evidentiary objection). It is enough if the objection is "sufficiently specific to call the district court's attention to the asserted error." Soto-Soto, 855 F.3d at 448 n.1.

In the court below, the appellant's counsel made clear that he believed that the sentence was "excessive" and that the court had not articulated any cognizable grounds that would support an upward variance. We think those statements were adequate to preserve the appellant's principal claim of procedural error: that the district court impermissibly grounded its upward variance on an improper factor (that is, a factor already fully accounted for by the applicable guidelines). Consequently, we review this claim for abuse of discretion.

Having clarified the standard of review, we proceed to put this claim of procedural error into perspective. To do so, we first revisit the basic architecture of the advisory sentencing guidelines. Our starting point is the Sentencing Reform Act of 1984, Pub. L. No. 98-473, tit. II, ch. II, 98 Stat. 1987, in which Congress crafted a neoteric framework for imposing sentences in federal criminal cases. As relevant here, the statutory scheme lays out a myriad of factors that a sentencing court "shall consider" and requires that the court "state ... the reasons" for its choice of a particular sentence. 18 U.S.C. § 3553(a), (c).

Although articulating this statement of reasons does not require a sentencing court to offer an explanation of its sentencing decision that is "precise to the point of pedantry," United States v. Sepúlveda-Hernández, 817 F.3d 30, 33 (1st Cir. 2016) (quoting United States v. Turbides-Leonardo, 468 F.3d 34, 40 (1st Cir. 2006) ), the explanation must elucidate the primary factors driving the imposed sentence, see United States v. Rivera-Morales, 961 F.3d 1, 18 (1st Cir. 2020). This requirement serves as an important check on the sentencing court. As we have cautioned, just because "a sentencing court possesses the raw power to deviate from the guidelines does not mean that it can (or should) do so casually." Martin, 520 F.3d at 91. The extent of the explanation required will vary in direct proportion to how far — if at all — the sentencing court strays from the guideline sentencing range. See United States v. Montero-Montero, 817 F.3d 35, 37 (1st Cir. 2016) (observing that burden to provide explanation "grows heavier" when sentence is outside guideline sentencing range). It follows that when a court imposes an upwardly variant sentence, it must provide a correspondingly cogent explanation. See United States v. Fields, 858 F.3d 24, 31 (1st Cir. 2017) ; Montero-Montero, 817 F.3d at 37.

Before announcing its sentence, the district court described the factual circumstances surrounding the offense of conviction, embraced the guideline calculations limned in the PSI Report, and offered a two-sentence biography of the appellant. It then dwelled at some length on the pervasiveness of violent crime, murder, and machine guns in Puerto Rico. The court made pellucid that the driving force behind the upward variance — a full year over the top of the guideline sentencing range — was the nature of the firearm that the appellant possessed: a machine gun.

The appellant assigns error, arguing that the nature of the firearm, without more, was insufficient to warrant the upward variance. In his view, the guideline sentencing range already fully accounted for the nature of the firearm, and the court never pointed out any way in which his offense conduct differed from the mine-run of ordinary machine gun possession cases. We turn directly to this argument.

The guideline provision underpinning the appellant's base offense level is USSG § 2K2.1(a)(4)(B). In pertinent part, this provision directs a base offense level of twenty if the "offense involved" a "firearm that is described in 26 U.S.C. § 5845(a)" and the defendant was a "prohibited person" at the time of the offense. In turn, 26 U.S.C. § 5845(a) includes "machinegun" in its definition of "firearm," and section 5845(b) defines a machine gun as "any weapon which shoots ... automatically more than one shot, without manual reloading, by a single function of the trigger."³ The guideline sentencing range was derived largely from this guideline provision, with routine adjustments. See supra note 2. In varying upward from this range, the sentencing court appears to have relied on nothing beyond the mere fact that the offense of conviction involved a machine gun. The court did not...