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United States v. Marquez-Garcia

United States Court of Appeals, First Circuit

July 5, 2017

UNITED STATES OF AMERICA, Appellee,
v.
KELVIN MARQUEZ-GARCIA, Defendant, Appellant.

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

          Irma R. Valldejuli on brief for appellant.

          Rosa Emilia Rodríguez-Vélez, United States Attorney, Mariana E. Bauzá-Almonte, Assistant United States Attorney, Chief, Appellate Division, and Mainon A. Schwartz, Assistant United States Attorney, on brief for appellee.

          Before Torruella, Selya and Thompson, Circuit Judges.

          SELYA, Circuit Judge.

         Defendant-appellant Kelvin Márquez-García mounts a multifaceted challenge, on both procedural and substantive grounds, to a 24-month sentence imposed following the revocation of a term of supervised release. After careful consideration, we summarily affirm. See 1st Cir. R. 27.0(c).

         I.

         We briefly rehearse the relevant facts. In December of 2012, the appellant pleaded guilty to the unlawful possession of a machine gun. See 18 U.S.C. § 922(o). The district court sentenced him to a 21-month term of immurement, to be followed by three years of supervised release. The appellant served his prison sentence and embarked upon his supervised release term in August of 2014. Two days shy of a year later, he was found to be in possession of yet another gun.

         In due course, the appellant pleaded guilty to a charge of being a felon in possession of a firearm. See id. § 922(g)(1). For this offense, the district court imposed a fresh 48-month term of imprisonment, to be followed by three more years of supervised release. No disposition was made at that time with respect to the appellant's apparent violation of his original supervised release term.

         In September of 2015, the probation officer moved to revoke the original supervised release term based on the conduct underlying the appellant's felon-in-possession charge. The district court convened a revocation hearing, at which the appellant conceded the violation. The court revoked the original period of supervision; noted that the appellant's felon-in-possession conviction was a Grade B violation, see USSG §7B1.1(a)(2); and calculated the advisory guideline sentencing range (GSR) at four to ten months, see id. §7B1.4(a). Because the underlying offense (unlawful possession of a machine gun) was a Class C felony, see 18 U.S.C. §§ 924(a)(2), 3559(a), the maximum permitted term of imprisonment was 24 months, see id. § 3583(e)(3). The appellant urged the court to sentence him at the bottom of the GSR. The government asked for a sentence at the top of the GSR. After considering the sentencing factors limned in 18 U.S.C. § 3583(e), the court sentenced the appellant to a 24-month term of immurement, to run consecutively to his 48-month sentence on the felon-in-possession charge. This timely appeal followed.

         II.

         The appellant challenges his revocation sentence on both procedural and substantive grounds. We discuss his claims of error one by one.

         A.

         To begin, the appellant asserts that the district court failed to give due consideration to the section 3583(e) factors. As a general matter, appellate courts review preserved claims of sentencing error for abuse of discretion. See Gall v. UnitedStates, 552 U.S. 38, 41 (2007). But when a party has failed to raise a particular claim of error before the sentencing court, appellate review is normally limited to plain error. See United States v. Ruiz-Huertas, 792 F.3d 223, 226 (1st Cir.), cert. denied, 136 S.Ct. 258 (2015). To vault the formidable hurdle imposed by plain error review, an appellant must show "(1) that an error occurred (2) which was clear or obvious and which not only (3) affected the [appellant's] substantial rights, but also (4) seriously impaired the fairness, integrity, or public ...


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