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United States v. Santa-Otero

United States Court of Appeals, First Circuit

December 13, 2016

UNITED STATES OF AMERICA, Appellee,
v.
SERGIO SANTA-OTERO, Defendant, Appellee.

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

          Alejandra Bird López 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, Torruella and Barron, Circuit Judges.

          BARRON, Circuit Judge.

         This appeal requires us once again to review the sentence that Sergio Santa-Otero has received for possessing a firearm after being convicted of a felony, in violation of 18 U.S.C. § 922(g)(1), and possessing a machine gun, in violation of 18 U.S.C. § 922(o). In Santa's prior appeal, we vacated his sentence, which at that time was for a term of imprisonment of 65 months, and remanded for resentencing. That resentencing has now occurred, and we affirm the result, which is a 60-month prison sentence.

         I.

         In 2013, pursuant to a plea agreement, Santa pled guilty to the two offenses: unlawful possession of a machine gun, in violation of 18 U.S.C. § 922(o), and being a convicted felon in possession of a firearm, in violation of 18 U.S.C. § 922(g). The plea agreement set forth the following facts.

         Santa was stopped in a car by police officers while smoking a marijuana cigarette. Upon questioning by the police officers, Santa disclosed that he had a firearm and ammunition in the car. The officers recovered one loaded Glock Pistol Model 27, four loaded standard size Glock Pistol magazines, and two loaded high capacity magazines, containing a total of 101 .40 caliber rounds of ammunition. Santa informed the officers that the Glock Pistol had a "chip" in it such that it would fire automatically, qualifying the firearm as a "machine gun." See 26 U.S.C. § 5845(b) (defining a machine gun as "any weapon which shoots, is designed to shoot, or can be readily restored to shoot, automatically more than one shot, without manual reloading, by a single function of the trigger").

         The plea agreement recommended a sentence within the applicable range set by the United States Sentencing Guidelines. The guidelines range set forth in the presentence report was for a term of imprisonment of 37 to 46 months. The presentence report based this range on a calculation that Santa's total offense level was 19 and that Santa's criminal history category was III.

         The presentence report calculated the total offense level of 19 for Santa by starting with a base offense level of 22, as required by U.S.S.G. § 2K2.1(a)(3), which applies to defendants convicted of being a felon in possession of a firearm where that firearm is a machine gun. The presentence report then reduced Santa's base offense level of 22 by two points for Santa's acceptance of responsibility and one additional point for Santa's entering a plea of guilty, thereby yielding the total offense level of 19. The presentence report labeled Santa's criminal history category as III based on Santa's prior convictions under Puerto Rico law for possession with intent to distribute a controlled substance, reclassified as possession of a controlled substance, and for aggravated conjugal abuse.

         At Santa's first sentencing hearing, the District Court stated that Santa had been convicted of possession with intent to distribute a controlled substance, and, based on that understanding of his criminal history, imposed a prison sentence of 65 months. On appeal, however, we agreed with Santa that the District Court had erred in characterizing Santa's criminal history, and so we vacated the sentence and remanded for resentencing. United States v. Santa-Otero, 618 F.App'x 6 (1st Cir. 2015).

         At Santa's sentencing hearing on remand, the parties agreed that the guidelines range for his term of imprisonment remained 37 to 46 months, because Santa's total offense level remained 19 and his criminal history category remained category III. The District ...


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