United States v. Torres

• Decision Date: 14 July 2022
• Docket Number: 20-1888
• Parties: UNITED STATES OF AMERICA, Appellee, v. FELIX VEGA-LA TORRES, Defendant, Appellant.
• Court: U.S. Court of Appeals — First Circuit

UNITED STATES OF AMERICA, Appellee,
v.
FELIX VEGA-LA TORRES, Defendant, Appellant.

No. 20-1888

United States Court of Appeals, First Circuit

July 14, 2022

Not for Publication in West's Federal Reporter

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF PUERTO RICO [Hon. Francisco Besosa, U.S. District Judge]

Franco L. Perez-Redondo, Assistant Federal Public Defender, with whom Eric Alexander Vos, Federal Public Defender, and Kevin E. Lerman, Research and Writing Specialist, were on brief, for appellant.

Gregory B. Conner, Assistant United States Attorney, with whom W. Stephen Muldrow, United States Attorney, and Mariana E. Bauza-Almonte, Assistant United States Attorney, Chief, Appellate Division, were on brief, for appellee.

Before Thompson, Lipez, and Gelpi, Circuit Judges.

1

THOMPSON, CIRCUIT JUDGE

Arrested near a drug point with a Glock pistol altered to fire automatically, Defendant later pled guilty under a plea agreement to illegally possessing a machine gun (indictment count 2). The government agreed not to prosecute him for possessing a gun and ammo as a felon (indictment count 1) and possessing a gun with an obliterated serial number (indictment count 3). Consistent with the agreement, the parties at sentencing jointly recommended that he get a 51-month prison stint. But not bound by the agreement, the district judge - after calculating a suggested guidelines range of 57 to 71 months and working his way through the sentencing factors in 18 U.S.C. § 3553(a) - settled on 84 months, among other things.^[1]

From that sentence Defendant appeals, calling the 13-month above-guidelines term both procedurally and substantively unreasonable. Writing solely for the parties - who know the facts, procedural history, and arguments presented - and applying abuse-of-discretion review, see United States v. Davila-Bonilla, 968 F.3d 1, 9 (1st Cir. 2020), we affirm, reporting only those details necessary to explain our reasoning.^[2]

2

I

Relying on United States v. Rivera-Berrios, 968 F.3d 130 (1st Cir. 2020), Defendant principally argues that the judge procedurally erred because (to quote his brief quoting Rivera-Berrios, italics added by us though) "an upwardly variant sentence based on the 'highly dangerous and unusual' nature of machine guns is unreasonable when no other factor relied on is entitled to extra weight." That the judge commented on how "machine guns are highly dangerous" and "largely exist on the black market" (quotes taken from a section of the transcript where Defendant's judge discussed community-based concerns) did not relieve him of his duty to base his "sentencing determination [o]n individual factors related to the offender and the offense." See id. at 136 (quoting United States v. Rivera-Gonzalez, 776 F.3d 45, 50 (1st Cir. 2015)). But here - unlike in Rivera-Berrios - factors tied either to the criminal or to the crime differentiate today's case from the ordinary machine-gun case covered by the guidelines. See United States v. Flores-Machicote, 706 F.3d 16, 21 (1st Cir. 2013).

A

Focusing on the "universe of things," the judge (to quote again from the transcript) gave individualized attention to the circumstances, "identif[ying] factors that do not make this case Cir. 2020); United States v. Carbajal-Valdez, 874 F.3d 778, 786

3

a mine-run machine gun case." And as we understand his position, Defendant argues not that the judge failed to identify those factors but that those factors cannot justify the 13-month upward variance. We think otherwise, however.

1

To begin, the judge considered Defendant's criminal history - a history that includes two convictions in commonwealth courts for violent offenses.

A portion of the presentence investigation report ("PIR") unchallenged below describes how (emphases ours) "[D]efendant illegally, maliciously, voluntarily and criminally, aiding and abetting with [another], used violence and intimidation against a police officer by resisting arrest and not allowing the officer to execute his duties by dragging the police officer through the road[,] causing the officer damages to his back and legs." That conviction resulted in no criminal-history points, thus allowing the judge to conclude that Defendant's guidelines range "underrepresented [his] criminal history," see United States v. Contreras-Delgado, 913 F.3d 232, 243 (1st Cir. 2019) - which distinguishes his case from the mine-run, see United States v. Santiago-Gonzalez, 825 F.3d 41, 49 (1st Cir. 2016). See generally United States v. Gonzalez-Flores, 988 F.3d 100, 102 (1st Cir. 2021) (explaining that "sentencing factors, like public protection and

4

deterrence, point in favor of a longer sentence" when the defendant's prior crimes show "troubling patterns").

Perhaps anticipating this conclusion, Defendant argues - without citing any relevant legal authority - that the judge could not consider that offense because prosecutors pursued an aiding-and-abetting theory and because the record does not disclose "who caused an officer to be dragged." But even if...