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United States v. Bermudez-Melendez

United States Court of Appeals, First Circuit

June 28, 2016

UNITED STATES OF AMERICA, Appellee,
v.
EDGARDO L. BERMÚDEZ-MELÉNDEZ, Defendant, Appellee. v.

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

          José L. Nieto-Mingo and Nieto Law Offices on brief for appellant.

          Rosa Emilia Rodríguez-Vélez, United States Attorney, Nelson Pérez-Sosa, Assistant United States Attorney, Chief, Appellate Division, and Tiffany V. Monrose, Assistant United States Attorney, on brief for appellee.

          Before Thompson, Selya and Barron, Circuit Judges.

          SELYA, Circuit Judge.

         In this sentencing appeal, defendant-appellant Edgardo L. Bermudez-Melendez mounts a multi-faceted challenge to his upwardly variant sentence for a firearms offense. After careful consideration, we affirm.

         I.

         Inasmuch as this appeal trails in the wake of a guilty plea, we draw the facts from the non-binding plea agreement (the Agreement), the change-of-plea colloquy, the undisputed portions of the presentence investigation report (PSI Report), and the transcript of the disposition hearing. See United States v. Almonte-Nuñez, 771 F.3d 84, 86 (1st Cir. 2014). On November 27, 2013, Puerto Rico police officers executed a search warrant at the appellant's residence in Guaynabo. Upon their arrival, the appellant fled into a wooded area near the house, jumped off a small cliff, and broke both legs. A subsequent inspection of the fallen man and his possessions revealed quantities of powdered cocaine, crack cocaine, and marijuana, an AK-47 assault rifle, and a collection of magazines and ammunition. More magazines and ammunition, along with a Glock pistol, were found in the appellant's living room.

         In due season, a federal grand jury returned a four-count indictment. Counts 1 through 3 charged the appellant with a litany of drug-trafficking crimes, while count 4 - the only count in issue here - charged him with possession of a firearm in furtherance of a drug-trafficking crime. See 18 U.S.C. § 924(c)(1)(A). After initially maintaining his innocence, the appellant relented and entered into the Agreement, in which he agreed to plead guilty to count 4 in exchange for the dismissal of the other charges. Among other things, the Agreement memorialized a joint sentencing recommendation of 72 months' immurement.

         At the change-of-plea hearing, the district court accepted the appellant's guilty plea to count 4 and ordered the preparation of the PSI Report. In the completed Report, the probation office noted that the statute of conviction required a minimum 60-month term of imprisonment. See 18 U.S.C. § 924(c)(1); USSG §2K2.4(b). It further noted that it had identified no factors demanding an upward variance (but it did not foreclose the possibility of such a variance).

         At sentencing, the parties urged the district court to impose the agreed 72-month sentence. The court demurred, concluding that a stiffer sentence was in order. It then meted out a 90-month incarcerative term.[1] This timely appeal ensued.

         II.

         We pause at the threshold to brush aside the waiver-of-appeal clause contained in the Agreement. That clause conditioned the waiver on the imposition of a sentence in "accordance with the terms and conditions set forth in the Sentence Recommendation provisions of [the Agreement]." The sentence levied by the district court was not within the compass of the Sentence Recommendation provisions. It follows that the waiver-of-appeal clause is a dead letter and does not pretermit this appeal. See, e.g., United States v. Vargas-García, 794 F.3d 162, 165 n.2 (1st Cir. 2015).

         III.

         This brings us to the appellant's asseverational array. It is familiar lore that we review challenges to the reasonableness of a sentence by means of a two-step pavane. See Gallv.United States, 552 U.S. 38, 51 (2007); United Statesv.Martin, 520 F.3d 87, 92 (1st Cir. 2008). We begin by examining assignments of procedural error, which include "failing to calculate (or improperly calculating) the Guidelines range, treating the Guidelines as mandatory, failing to consider the § 3553(a) factors, selecting a sentence based on clearly erroneous facts, or failing to adequately explain the chosen sentence - including an explanation for any deviation from the Guidelines range." Gall, 552 U.S. at 51. Once this hurdle is cleared, we then appraise ...


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