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United States v. Gonzalez-Rodriguez

United States Court of Appeals, First Circuit

June 9, 2017

UNITED STATES OF AMERICA, Appellee,
v.
JOSÉ RAMÓN GONZÁLEZ-RODRÍGUEZ, Defendant, Appellant.

         APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF PUERTO RICO [Hon. Carmen Consuelo Cerezo, U.S. District Judge]

          Rick Nemcik-Cruz on brief for appellant.

          Rosa Emilia Rodríguez-Vélez, U.S. Attorney, Mariana E. Bauzá-Almonte, Assistant U.S. Attorney, Chief, Appellate Division, and Thomas F. Klumper, Assistant U.S. Attorney, on brief for appellee.

          Before Howard, Chief Judge, Selya, Circuit Judge, and McConnell, District Judge. [*]

          HOWARD, Chief Judge.

         José Ramón González-Rodríguez ("González") challenges the reasonableness of his 33-month incarcerative sentence for possession of a machine gun in violation of 18 U.S.C. §§ 922(o) and 924(a)(2). After careful consideration, we affirm.

         I.

         In August 2015, the Puerto Rico Police Department ("PRPD") executed a search warrant on a residence in Río Grande, Puerto Rico, after receiving two anonymous complaints about an individual (or individuals) with a weapon at the address, and after a PRPD officer drove by and saw an individual with a weapon outside the home. At the time that the warrant was executed, a PRPD officer arrested González, who was in the home and in possession of a firearm. The PRPD seized the weapon, a .40 caliber Glock pistol, as well as two 22-round and two 15-round magazines, 52 rounds of ammunition, a Glock back slide cover, a cellular phone, a weight scale, and small bags commonly used for drug distribution. González admitted to owning the gun, which he claimed that he had bought because "it is fashion[able] in Puerto Rico, " and he admitted to knowing that it was capable of firing automatically. He also admitted to using marijuana between seven and eight times per day and to taking Tramadol -- a narcotic-like pain reliever -- frequently.

         González was transferred to federal custody and, ultimately, entered a straight guilty plea to possession of a machine gun. The Probation Office subsequently determined that U.S.S.G. §2K2.1(a)(4)(B) was the applicable guideline and that -- after applying a three-level reduction for acceptance of responsibility under §3E1.1 -- González's total offense level was 17. When combined with González's criminal history category of I, this yielded an advisory guideline sentencing range of 24 to 30 months' imprisonment. González did not contest the presentence investigation report ("PSR") prepared by the Probation Office.

         Prior to his sentencing hearing, González submitted a sentencing memorandum requesting a downward variance to 18 months' imprisonment, whereas the government requested an upward variance to 33 months' imprisonment. The district court sentenced González according to the government's recommendation. The court explained that González's "conduct [flouted] the law and . . . represent[ed] a risk to the community." Therefore, the court concluded, the variant sentence was "sufficient but not greater than necessary to meet [the] objectives of punishment and of deterrence in this case."

         This timely appeal followed.

         II.

         Claims of sentencing error such as González's trigger a two-step inquiry: "we [must] first determine whether the sentence imposed is procedurally reasonable and then determine whether it is substantively reasonable." United States v. Clogston, 662 F.3d 588, 590 (1st Cir. 2011). As González argues that his 33-month sentence is both procedurally and substantively unreasonable, we take up his arguments in turn.[1]

         A. ...


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