APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF PUERTO RICO Hon. José Antonio Fusté, U.S. District Judge
Mary Davis and Tisdale & Davis, P.A. on brief for appellant.
Rosa Emilia Rodríguez-Vélez, United States Attorney, Nelson Pérez-Sosa, Assistant United States Attorney, Chief, Appellate Division, and Thomas F. Klumper, Assistant United States Attorney, on brief for appellee.
Before Thompson, Lipez, and Barron, Circuit Judges.
LIPEZ, Circuit Judge.
Javier E. Guzman-Fernandez ("Guzman") pled guilty to one count of conspiring to commit Hobbs Act robberies in violation of 18 U.S.C. § 1951(a). After calculating Guzman's guideline sentencing range ("GSR") to be 97 to 121 months, the district court imposed a 135-month term of imprisonment. Guzman appeals his sentence, arguing that the upward variance was both procedurally and substantively unreasonable. Finding no errors, we affirm.
In June 2010, Guzman, who was a supervisor at Kmart, provided his co-conspirators with security information about one of the Kmart stores, including the layout of the store and the identity of the security guard. Relying on this information, Guzman's co-conspirators robbed the store. The robbery involved the use of a firearm, physical restraint of the store security guard, and injury to the guard.
In December 2010, Guzman provided security details about another Kmart store to his co-conspirators and prepared a hiding spot in the store for his co-defendant, who then hid in that spot until the store closed. When Guzman and other employees encountered the robber at the store the next morning,  Guzman pretended to be both a victim and a negotiator between the employees and the robber. The second robbery involved a firearm, restraint of the store employees, and injury to the store watchman. The value of all the property taken during the two robberies exceeded $50, 000.
Guzman pled guilty to conspiracy to commit Hobbs Act robberies. See 18 U.S.C. § 1951(a). His plea agreement and presentence investigation report recommended a GSR of 97 to 121 months, based on a total offense level of 30 and a criminal history category of I. The offense level calculation included multiple enhancements: (1) a five-level increase applied because a firearm was brandished, see U.S.S.G. § 2B3.1(b)(2)(C); (2) a two-level increase applied because victims sustained bodily injury, see id. § 2B3.1(b)(3)(A); (3) a two-level increase applied because victims were physically restrained, see id. § 2B3.1(b)(4)(B); (4) a two-level increase applied because the loss exceeded $50, 000, see id. § 2B3.1(b)(7)(C); and (5) a two-level increase applied because Guzman "abused [his] position of public or private trust, . . . in a manner that significantly facilitated the commission or concealment of the offense, " id. § 3B1.3. At the sentencing hearing, Guzman's counsel argued for a 97-month term of imprisonment because "all the worst aspects of this case have been included in the [GSR] calculation." The government argued for a 120-month sentence.
The district court rejected both proposed sentences and imposed a 135-month term of imprisonment, a 14-month variance from the top end of the GSR. In explaining its decision, the court considered the sentencing factors as set forth in 18 U.S.C. § 3553(a). The court's observations included the following:
• Guzman's age and personal background suggested that he had "additional controls and additional insight as to what are the responsibilit [ies] of a mature individual";
• he was involved in two robberies;
• Guzman's insider role in the two robberies -- including providing information "used to intimidate and threaten employees" and playing both the "victim's role" and "the role of a negotiator" -- demonstrated the "boldness" of ...