United States v. Viloria-Sepulveda, 041619 FED1, 18-1152

Docket Nº:18-1152
Opinion Judge:LYNCH, CIRCUIT JUDGE.
Party Name:UNITED STATES, Appellee, v. FABIAN VILORIA-SEPULVEDA, a/k/a Fabian Vilora-Sepúlveda, Defendant, Appellant.
Attorney:Mariem J. Paez 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.
Judge Panel:Before Howard, Chief Judge, Lynch and Lipez, Circuit Judges.
Case Date:April 16, 2019
Court:United States Courts of Appeals, Court of Appeals for the First Circuit
 
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UNITED STATES, Appellee,

v.

FABIAN VILORIA-SEPULVEDA, a/k/a Fabian Vilora-Sepúlveda, Defendant, Appellant.

No. 18-1152

United States Court of Appeals, First Circuit

April 16, 2019

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF PUERTO RICO [Hon. Juan M. Perez-Gimenez, U.S. District Judge]

Mariem J. Paez 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, Lynch and Lipez, Circuit Judges.

LYNCH, CIRCUIT JUDGE.

Fabian Viloria-Sepulveda pled guilty to illegal possession of a machine gun in violation of 18 U.S.C. § 922(o). The district court sentenced Viloria-Sepulveda to sixty months' imprisonment, a sentence above the applicable guidelines sentencing range (GSR) but below the statutory maximum of ten years. 18 U.S.C. § 924(a)(2).

Viloria-Sepulveda challenges this sentence on procedural and substantive grounds. Procedurally, he contends that the district court erred in considering two types of evidence: (1) photographs found on the defendant's cell phone showing the defendant and others handling drugs, drug paraphernalia, and guns, including military-style assault weapons, and (2) information about the pervasiveness of guns and gun violence in Puerto Rico.

We affirm.

I.

Puerto Rico police officers from the Drug Division of San Juan had a member of a violent drug trafficking organization under physical surveillance on January 30, 2017. The officers conducting the surveillance saw a Toyota Corolla escorting the gang member's car. Viloria-Sepulveda was the driver of the Toyota, as the police would later discover.

The officers did a record check of the Toyota's license plates. Learning that the Toyota had been reported missing and should be recovered, the police stopped the car. As the officers neared the front driver's side window, they watched Viloria-Sepulveda (who was sitting in the driver's seat) attempt to put a firearm inside a bag on the front passenger seat. The officers ordered Viloria-Sepulveda to roll down the window, but he instead persisted in trying to hide the firearm. So the officers told Viloria-Sepulveda to step out of the car, which he did, and they placed him under arrest.

The officers determined that the gun recovered from the bag was a Glock 34 pistol modified to shoot automatically and loaded with an extended magazine containing twenty-four bullets. Viloria-Sepulveda volunteered to the officers that the weapon was his.

A search of the Toyota uncovered another extended magazine (with twenty-four rounds of ammunition) for the Glock, a face mask, a drug ledger, walkie talkies, and three cell phones. A search (to which Viloria-Sepulveda consented) of one of the cell phones and its applications, including a messaging application called WhatsApp, uncovered multiple photographs of Viloria-Sepulveda and others carrying firearms of different types, including assault-style weapons; of drug ledgers; of a scale; and of substances in plastic bags and in vials.

A federal grand jury in Puerto Rico indicted Viloria-Sepulveda on one count of illegal possession of a machine gun. See 18 U.S.C. §§ 922(o), 924(a)(2). Viloria-Sepulveda entered a straight guilty plea. He also forfeited the firearm and the ammunition.

The Probation Office prepared a presentence report (PSR), which found a Total Offense Level of 15 and a Criminal History Category of I. Based on these calculations, the PSR calculated a GSR of eighteen to twenty-four months.

In its sentencing memorandum, the government agreed with the PSR's calculations but argued for an upwardly variant sentence of forty-eight to sixty months based on the nature of the offense, the defendant's characteristics, and the need for deterrence and for protection of the public from future crimes by the defendant. It stressed that Viloria-Sepulveda "was heavily armed with" a machine gun and "two extended magazines" and argued that Viloria-Sepulveda's proximity to the violent gang member under surveillance, as well as Viloria-Sepulveda's possession of the walkie talkies, drug ledger, and face mask were "all evidence that [Viloria-Sepulveda] was part of a violent criminal gang willing to conduct...

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