FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF
PUERTO RICO [Hon. Aida M. Delgado-Colón, U.S. District
Cathryn A. Neaves 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, Thompson and Kayatta, Circuit Judges.
KAYATTA, Circuit Judge.
district court sentenced defendant Joshua Nieves-Mercado
("Nieves") to 60 months' imprisonment, a term
that exceeded by 9 months the top of the guidelines
sentencing range and by 14 months the government's
recommendation pursuant to a plea agreement. Nieves appeals,
arguing that the court abused its discretion by considering
unreliable evidence, by varying upward based on information
already factored into the guidelines sentencing range, and by
ignoring "the significant mitigating factor" of his
youth. According to Nieves, these errors rendered his
sentence procedurally and substantively unreasonable. We
disagree and so affirm.
the following facts from the plea agreement and
change-of-plea colloquy, the undisputed portions of the
presentence investigation report ("PSR"), and the
sentencing hearing. See United States v.
Rivera-González, 776 F.3d 45, 47 (1st Cir. 2015).
criminal conduct at issue took place in the early morning
hours of March 15, 2013. Nieves and two other men were
traveling westbound on the highway between Río Grande
and Carolina in Puerto Rico. Their vehicle approached an
intersection and pulled alongside a red Ford Explorer stopped
at the light. Nieves exited the vehicle and carried "a
long pointed tip object" to the driver's side of the
Explorer. He first ordered the driver to get out. When she
did not immediately comply, he opened the driver's side
door, yanked the driver from her seat, and pushed her toward
the highway lane divider. Nieves drove away in the Explorer,
and the vehicle in which he arrived likewise fled the scene.
later, reports surfaced of three armed individuals
disassembling a red Ford Explorer in Canóvanas. Police
officers responded to the scene and observed two men removing
parts from the Explorer. The officers took both men into
custody. Their investigation confirmed that the Explorer was
the vehicle carjacked hours earlier. It also led them to
Nieves, whom federal officers arrested the following day.
Nieves waived his constitutional rights and admitted to his
participation in the carjacking.
March 20, 2013, a grand jury returned a one-count indictment
charging Nieves and the two other men with carjacking and
aiding and abetting in violation of 18 U.S.C. § 2119(1).
Nieves pled guilty to that charge, pursuant to a plea
agreement with the government, on September 23, 2013. The
agreement obligates the government to recommend a sentence in
"the middle range of the applicable guideline, "
with no stipulation as to Nieves's criminal history
category. It also includes a sentencing guidelines
calculation table that lists Nieves's total offense level
as twenty-two, reflecting the following: a base offense level
of twenty, U.S. Sentencing Guidelines Manual § 2B3.1(a);
plus a two-level enhancement because the offense involved
carjacking, id. § 2B3.1(b)(5); plus a
three-level enhancement because Nieves brandished a dangerous
weapon, id. § 2B3.1(b)(2)(E); less three levels
because Nieves accepted responsibility, id. §
3E1.1. The parties agreed to seek no further adjustment to,
or departure from, the base offense level.
timely produced PSR mirrors the offense level computation in
the plea agreement, finds a criminal history score of zero,
and computes Nieves's criminal history category as I.
Additionally, the PSR provides a detailed description of the
offense conduct according to the reports of investigation. As
relevant to this appeal, the PSR states that FBI agents
interviewed Nieves's codefendants on the date of their
arrest. Both admitted their role in the carjacking and
subsequent disassembling of the Explorer, explaining that
Nieves approached one of the codefendants after the
carjacking, told him where to find the Explorer, and
suggested that he remove and sell the radiator to satisfy a
debt Nieves owed to that codefendant.
sentencing hearing took place on April 29, 2015. The district
court asked defense counsel whether he had read and examined
the PSR. Defense counsel responded that he had and lodged one
objection unrelated to the issues on appeal. Defense counsel
also confirmed that he had explained the PSR to his client
and that they had discussed it together. He then addressed
the court, providing context for a juvenile adjudication
briefly referenced in the PSR, and noting Nieves's
compliance with the terms of his probation during a previous
period of supervision. He also referenced literature calling
into question the positive correlation between incarceration
and deterrence, and he reported statistics indicating a
higher percentage of guidelines sentences in the District of
Puerto Rico compared to the national average. Finally,
defense counsel argued that offender characteristics
including age, employment, and education made Nieves's
potential for rehabilitation "tremendous" and his
risk of recidivism "low."
court then heard from Nieves. In his address to the court, he
stated, "I must apologize to the victims, because what
happened was a momentary thing and I ask them to forgive
me." The court ...