FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF
PUERTO RICO [Hon. Francisco A. Besosa, U.S. District Judge]
Pimentel Soto and Kendys Pimentel Soto Law Office on brief
R. Caldwell, Assistant Attorney General, Sung-Hee Suh, Deputy
Attorney General, Amanda B. Harris, Attorney, Criminal
Division, Appellate Section, United States Department of
Justice, Rosa Emilia Rodríguez-Vélez, United
States Attorney, Nelson Pérez- Sosa, Assistant United
States Attorney, Chief, Appellate Division, and Kelly
Zenón-Matos, Assistant United States Attorney, on
brief for appellee.
Torruella, Selya, and Thompson, Circuit Judges.
THOMPSON, Circuit Judge.
jury indicted Wilfredo Garay-Sierra (Garay) for carjacking a
"Mitsubishi Nativa, " with intent to cause death
and serious bodily harm, see 18 U.S.C. §
2119(2), and carrying and brandishing a firearm during a
crime of violence, see id. § 924(c)(1)(A)(ii).
Pursuant to a binding plea agreement, see Fed. R.
Crim. P. 11(c)(1)(C), Garay pled guilty to carjacking and to
possessing - but not brandishing - the firearm.
projecting Garay's total offense level, the parties
(among other things) agreed to a series of enhancements -
including, pertinently, a 4-level enhancement because a
victim of the carjacking suffered "serious bodily
injury." See USSG §
2B3.1(b)(3)(B). The parties did not agree on a particular
guideline sentencing range for the carjacking count. But they
did agree that Garay would recommend a 40-month prison
sentence, and that the government would recommend a sentence
within the to-be- calculated sentencing range. Because Garay
accepted responsibility for possessing a firearm, the parties
also agreed to recommend the mandatory-minimum sentence of 60
months in prison - the mandatory-minimum sentence for
brandishing a firearm is 84 months, by the way. See
18 U.S.C. § 924(c)(1)(A)(i), (ii). The parties also
agreed that the sentences had to run consecutively. And Garay
agreed to waive his right to appeal if the judge
"accept[ed]" the agreement and "sentenc[ed]
him according to its terms, conditions, and
probation office's PSR recommended (among other things)
that Garay get the 4-level enhancement for the carjacking
count, noting that "the victims suffered serious bodily
injury." Skipping over details not relevant to the
issues on appeal, we note that the PSR then suggested that
the judge use a 70-87 month sentencing range for this count.
The PSR also incorrectly indicated that 84 months - section
924(c)'s mandatory minimum for brandishing - applied.
Neither party objected to the PSR.
sentencing hearing - and consistent with the plea agreement -
Garay's counsel asked the judge for a 40-month prison
term on the carjacking count, saying his client's youth,
being a father, struggles with drug addiction and depression,
and below-average IQ justified a downwardly-variant sentence.
Living up to the terms of the agreement, the government asked
for a sentence within the range for that count. And both
Garay and the government asked for the 60-month mandatory
minimum for the firearm crime.
listening to the parties' sentencing pitches, the judge
accepted the PSR's calculations for the counts -
i.e., the judge adopted the PSR's 70-87 month
sentencing range for the carjacking count and the mandatory
minimum of 84 months for the firearm count. The judge then
ran through the relevant sentencing factors, see 18
U.S.C. § 3553(a), including Garay's characteristics
and history (his youth, drug addiction, limited intellectual
capacity, bouts with depression, etc.), the
seriousness of the offense (noting, for example, that an
accomplice of Garay had sexually assaulted one of the
carjacked victims in Garay's presence), plus the need to
deter criminal conduct, protect the public, promote respect
for the law, and deliver just punishment. And when all was
said and done, the judge imposed a within-guidelines prison
sentence of 70 months for the carjacking crime, and a
consecutive 84-month prison sentence for the firearm crime.
this 154-month sentence, Garay appeals. He first argues that
the appeal waiver provision in his plea agreement is not
enforceable, noting for example that the judge's sentence
for the firearm offense (84 months) differed from what the
parties recommended in the agreement (60 months). He then
argues that the 70-month prison stint for the carjacking
offense is procedurally unreasonable - first, because the
judge wrongly concluded that the serious-bodily-injury
enhancement applied and second, because the judge neither
adequately considered factors favoring a lower sentence nor
satisfactorily explained the reasons for the sentence. And
last he argues that because he pled guilty to
possessing a firearm rather than
brandishing a firearm, the judge botched matters by
sentencing him for brandishing a firearm (again,
brandishing carries a higher mandatory minimum than
part, the government agrees with Garay that, when it comes to
the firearm count, the judge reversibly erred in imposing a
sentence for brandishing a gun. And when it comes to the
carjacking count, the government says, we should enforce the
waiver-of-appeal clause because the sentence imposed by the
judge jibed with the parties' recommendation - but even
if it did not, the government adds, the judge erred neither
in applying the serious-bodily-injury enhancement nor in
explaining the sentence's length.
argues in reply that because the judge did not follow
"all" of the plea agreement's terms (because
the judge chose a sentence for the firearm count that
exceeded the parties' recommendation), "the waiver
of appeal is inapplicable in toto." And to the
extent there is any ambiguity about the way in which the
appeal-waiver clause works, he ...