FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF
PUERTO RICO [Hon. José Antonio Fusté, U.S.
Alejandra Bird López on brief for appellant.
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.
Howard, Chief Judge, Torruella and Barron, Circuit Judges.
BARRON, Circuit Judge.
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.
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
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").
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.
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.
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.
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 ...