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United States v. Matos-de-Jesus

United States Court of Appeals, First Circuit

May 5, 2017

JOSÉ MATOS-DE-JESÚS, Defendant, Appellee.


          Elizabeth A. Billowitz 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, Selya and Lynch, Circuit Judges.

          SELYA, Circuit Judge.

         With respect to some firearms charges, the sentencing guidelines provide that if the offense of conviction involves three or more guns, the defendant's offense level is to be enhanced by a specified number of levels. See USSG §2K2.1(b)(1). Here, the offenses of conviction involved two firearms, and the sentencing court, recognizing that the guideline enhancement was inapplicable, considered the second firearm as an aggravating factor in imposing an upwardly variant sentence.

         In this appeal, defendant-appellant José Matos-de-Jesús argues, inter alia, that the sentencing guidelines already account for the presence of both guns and, therefore, that the sentencing court erred in considering his possession of the second gun as part of the groundwork for the upward variance. Discerning no error, we affirm.

         The facts are straightforward. In October of 2015, Puerto Rico police pulled over the appellant's car (which the appellant was driving) after noticing a problem with the license plate. When a passenger opened the glove compartment to retrieve the registration, the officers spotted at least one loaded Glock magazine. When queried, the appellant admitted that he did not have a firearms permit, and the officers ordered him out of the car. As he stepped out, they removed a Glock pistol from his waistband. The gun had been "chipped, " that is, modified to fire automatically.

         After a vehicle search, see United States v. Panitz, 907 F.2d 1267, 1271 (1st Cir. 1990) (discussing "vehicle exception" to warrant requirement), the police discovered a second Glock pistol (also "chipped"), four loaded high-capacity magazines, and more than 100 loose rounds of ammunition. During the ensuing arrest, the appellant threatened to kill one of the arresting officers upon his release.

         In due course, a federal grand jury sitting in the District of Puerto Rico handed up an indictment charging the appellant with one count of possession of firearms by a convicted felon, see 18 U.S.C. § 922(g)(1), and one count of possession of machine guns, see id. § 922(o). Notably, each count of the indictment referenced the appellant's possession of both of the seized firearms. The appellant entered a straight guilty plea to both counts.

         At sentencing, the court heard arguments of counsel and the appellant's allocution. Without objection, it set the appellant's total offense level at 19, assigned him to criminal history category IV, and calibrated his guideline sentencing range at 46 to 57 months. After mulling the sentencing factors limned in 18 U.S.C. § 3553(a), the court varied upward and imposed a 72-month term of immurement. It explained that the upward variance reflected in significant part the appellant's possession of not one, but two, guns. The court added, though, that the upwardly variant sentence also took into account the presence of several other aggravating factors, such as the appellant's extensive criminal history and the fact that he had threatened a police officer during his arrest.

         The appellant objected to his sentence, in general terms, as both procedurally and substantively unreasonable. The district court overruled these objections. This timely appeal followed.

         Appellate review of claims of sentencing error entails a two-step pavane. See United States v. Martin, 520 F.3d 87, 92 (1st Cir. 2008). Under this framework, we first address any assignments of procedural error. See id. If the sentence passes procedural muster, we then address any challenge to its substantive reasonableness. See id. Here, the appellant advances claims of both procedural and substantive error.

         The appellant's most loudly bruited procedural claim is that the sentencing court blundered when it used his possession of two firearms as part of the groundwork for an upward variance. He starts with the uncontroversial premise that the sentencing guidelines direct courts to add additional levels to a defendant's offense level when the defendant possesses three or more guns in connection with the offense of conviction. See USSG ยง2K2.1(b)(1). With this premise as a starting point, he asserts that the guidelines treat the "possession of one or two firearms . . . the same, " and insists, a fortiori, that the second gun already was factored into his guideline range. Building on this less-than-sturdy foundation, he concludes that the ...

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