APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF PUERTO RICO. Hon. Aida M. Delgado-Colón, U.S. District Judge.
Hector E. Guzmá n-Silva, Federal Public Defender, Hector L. Ramos-Vega, Supervisory Assistant Federal Public Defender, and Patricia A. Garrity, Assistant Federal Public Defender, on brief for appellant.
Rosa Emilia Rodríguez-Vélez, United States Attorney, Nelson Pérez-Sosa, Assistant United States Attorney, Chief, Appellate Division, and Juan Carlos Reyes-Ramos, Assistant United States Attorney, on brief for appellee.
Before Howard, Chief Judge, Selya and Lipez, Circuit Judges.
LIPEZ, Circuit Judge.
On two consecutive days in March 2012, Hiram L. Figueroa-Figueroa (" Figueroa" ) engaged in a total of six acts of violence, all at gunpoint. He commandeered a vehicle, forced the driver from the car, and took money and other items from the victim; stole two women's handbags in separate incidents; demanded money from a man pumping gas; forced a motorist who was withdrawing cash from an ATM to turn over the money and his car; and, while unsuccessfully trying to escape from police officers, brandished a loaded revolver. Figueroa was charged with numerous Puerto Rico offenses and, under federal law, being a felon in possession of a firearm. See 18 U.S.C. § § 922(g)(1), 924(a)(2).
After pleading guilty to the federal charge, Figueroa was sentenced to an 87-month term of imprisonment to run consecutively to his previously imposed 12-year sentence on the commonwealth charges. On appeal, Figueroa claims that the district court erroneously ignored a provision of the United States Sentencing Guidelines (" the Guidelines" ) requiring concurrent sentencing for the federal and state offenses. See U.S.S.G. § 5G1.3(b) (2012). Finding the sentence as imposed to be proper, we affirm.
Figueroa's two-day crime spree resulted in six robbery convictions under Puerto Rico law, each with a three-year term of imprisonment to be served concurrently with the other five, and nine Puerto Rico weapons convictions, each with a one-year sentence to be served consecutively with each other and with the term for the robbery charges. Figueroa was thus sentenced to a total of twelve years for the state crimes: nine years for the weapons violations and three for the robberies. That term of imprisonment was imposed in January 2013; the federal sentencing proceedings took place three months later, in April.
The presentence investigation report (" PSR" ) prepared in advance of the federal sentencing, as amended, set Figueroa's adjusted offense level at 25. That calculation included a four-level enhancement because Figueroa had used and possessed a firearm and ammunition in connection with another felony offense. See U.S.S.G. § 2K2.1(b)(6)(B). Although the other offense was not identified, it is undisputed that the PSR relied on some criminal activity prosecuted by the commonwealth to boost Figueroa's recommended total Guidelines offense level above the level that otherwise would have applied for unlawfully possessing a firearm. The resulting
advisory sentencing range was 70 to 87 months' imprisonment.
In his federal sentencing memorandum, Figueroa asked the court to impose his federal term concurrent with his commonwealth sentence " as it involves the same facts . . . [and] specifically include[s] a weapons charge." He invoked § 5G1.3 of the Guidelines, which explains when a later federal sentence must be imposed consecutively or concurrently with a prior undischarged term of imprisonment, see § 5G1.3(a), (b), and when a court has discretion to choose the approach, see § 5G1.3(c). In its memorandum, the government urged an 87-month term of imprisonment. The ...