FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF
PUERTO RICO [Hon. Aida M. Delgado-Colón, U.S. District
June Ciresi, on brief for appellant.
A. Mathews II, Assistant United States Attorney, Rosa Emilia
Rodríguez-Vélez, United States Attorney, and
Mariana E. Bauzá-Almonte, Assistant United States
Attorney, Chief, Appellate Division, on brief for appellee.
Howard, Chief Judge, Torruella and Kayatta, Circuit Judges.
TORRUELLA, Circuit Judge.
sentencing appeal, the Defendant-Appellant Santos Daniel
insists that his eighteen-month sentence is both procedurally
and substantively unreasonable. After careful review, we
appeal concerns the imposition of the defendant's
sentence, we briefly summarize the relevant facts and charted
course of this case. We note that, because Rondón pled
guilty and does not challenge the factual background, we draw
those facts from the change-of-plea colloquy, the
unchallenged portions of the Presentence Investigation Report
("PSR"), and the transcript of the sentencing
hearing. See United States v.
Fernández-Santos, 856 F.3d 10, 14 n.1 (1st Cir.
September 8, 2015, agents from the Puerto Rico Police
Department's Bayamón Intelligence Division
executed a search warrant at Rondón's residence,
where he lived with his common law wife, Alitza
("Rodríguez"), and their three children.
After the agents detained Rondón and Rodríguez
in the living room, they searched the residence and seized
two notebooks containing drug ledgers, forty-one small
plastic zip-lock baggies containing a white powder that field
tested positive for cocaine, two cellular telephones, one
fifteen-round capacity magazine fit for a 9mm Glock pistol
containing thirteen rounds of ammunition, and one crack pipe.
The police did not find a gun in the residence.
same day, agents from the Bureau of Alcohol, Tobacco,
Firearms, and Explosives ("ATF") arrested
Rondón. After waiving his Miranda rights,
Rondón admitted to selling the cocaine, but stated
that he did not remember the pistol magazine being there and
that it could belong to a friend. The ATF agents also
arrested and interviewed Rodríguez who, after waiving
her Miranda rights, stated that she did not know
that Rondón had the cocaine and that, about a month
prior, she saw Rondón walking in the street with a
black firearm. She further told the agents that she did not
know if Rondón owned a gun, but she had not seen him
with a weapon in the house.
September 9, 2015, Rondón was charged by Complaint
with possession with intent to distribute cocaine, in
violation of 21 U.S.C. § 841(a)(1). On September 17, he
was released on bail into Rodríguez's custody and
ordered to comply with conditions of his release. On November
24, 2015, pursuant to a plea agreement, Rondón waived
indictment and pled guilty to an Information charging him
with one count of possession with intent to distribute less
than fifty grams of cocaine, in violation of 21 U.S.C.
§§ 841(a)(1) and (b)(1)(C). His plea agreement with
the government included a calculation of his United States
Sentencing Guidelines ("Guidelines") sentencing
range ("GSR"). The agreement set
Rondón's base offense level at twelve, and
included a two-level reduction for acceptance of
responsibility, resulting in a final adjusted offense level
of ten. While the plea agreement included no stipulation as
to Rondón's Criminal History Category
("CHC"), it provided that, should the district
court deem Rondón to have a CHC of I, his GSR would be
six to twelve months of imprisonment. The parties agreed that
Rondón could request a sentence at the lower end of
the applicable range, while the government reserved the right
to recommend any sentence within the GSR. Rondón
remained on bail pending sentencing with Rodríguez as
his third party custodian.
November 30, 2016, Rodríguez alerted the U.S.
Probation Office, via letter, that she no longer wanted to be
Rondón's third party custodian because she had
"decided to end the strained relationship with
[him]." The same day, the probation officer filed with
the court an informative motion to this same effect. On
December 19, 2016, Rodríguez was shot and killed while
driving in Guaynabo, Puerto Rico. The probation officer filed
another informative motion that same day to inform the court
of her death.
December 21, 2016, the U.S. Probation Office filed its PSR
with the district court. Like the plea agreement, it
determined that Rondón's offense level was twelve
pursuant to U.S.S.G. § 2D1.1(c)(14), and recommended a
two-level reduction for acceptance of responsibility pursuant
to U.S.S.G. § 3E1.1 (a), making Rondón's
total offense level ten. The PSR specified that while
Rondón had no prior convictions, giving him a criminal
history score of zero, he had been previously arrested on
four occasions. The PSR concluded that, based on his total
offense level and CHC, Rondón's GSR was six to
twelve months of imprisonment. Neither party filed any
objections to the PSR.
was sentenced on December 28, 2016. At sentencing,
Rondón's counsel argued for a sentence of six
months of imprisonment, at the low end of the GSR, while the
Government asked the court to impose a sentence of twelve
months. In making his pitch, his defense counsel emphasized
that, as a result of Rodríguez's death,
Rondón would now be the lone parent to his three
children. He also pointed to Rodríguez's
statements to probation when interviewed for the PSR that
Rondón was dedicated to his children and requesting
that the court show leniency. The sentencing court responded
that Rodríguez had informed the probation office prior
to her death that she no longer wanted to be
Rondón's third party custodian "because of
verbal and physical threats and violence displayed by this
defendant against her. There is a written letter to that
effect in the hands of the Probation Officer, which is
consistent with the alleged charges of domestic violence that
were [previously] charged." For his part,
Rondón's attorney claimed that he was "not
privy" to the specific information contained in
court then discussed the circumstances of
Rodríguez's murder, relayed to it by the probation
officer, noting that Rodríguez brought the children to
Rondón's mother's house "at his request,
" and then, after Rondón "asked her
specifically to go and pick the children up[, ] . . .
coincidentally she [was] killed as she was close to the
residence. . . . She was murdered on her way to pick up the
children." Rondón's attorney responded that
the details of Rodríguez's death were "news
to [him], " and that he "[didn't] see that
information." He did, however, acknowledge that he was
aware that Rodríguez had asked to be removed as
Rondón's third party custodian, and that the PSR
contained information that she was murdered while driving her
vehicle in Guaynabo.
this exchange, in support of its recommendation, the
Government pointed out that Rondón was selling drugs
and possessed ammunition in the same apartment in which he
lived with his kids and now-deceased wife. The court then
adopted the GSR as calculated in the PSR, but noted that it
"ha[d] its qualms" about whether those guidelines
"accurately reflect[ed] the components of the
offense." After highlighting some of the 18 U.S.C.
§ 3553 factors, including Rondón's age,
dependents, education and employment history, health, and
substance use, the court began its dissection of
Rondón's arrest history. The court noted that
"[t]his is Mr. Rondón's fifth arrest and
first conviction, " and that he had been previously
arrested for violations of controlled substances laws,
explosives laws, weapons laws, and domestic
violence. The court proceeded to discuss each of the
prior charges, summarizing the allegations as written in the
PSR, despite the fact that all were dismissed for lack of
probable cause or for speedy trial violations.
court recited the accusations of Rondón's
dismissed 2010 domestic violence charges -- which stemmed
from alleged abuse of Rodríguez -- the court drew a
parallel between the 2010 allegations and the allegations
purportedly contained in Rodríguez's letter
requesting to withdraw as Rondón's third party
custodian. Specifically, the court stated that the alleged
violence resulting in the 2010 charge was the "[s]ame
information she conveyed in 2016 shortly before she was
killed[, a]t the time that she was requesting to be relieved
as third party custody [sic]." At the conclusion of its
recitation, the court stated, "[T]his is not strange
that the State system will fail to carry over in cases such
as this, and this is the reason why this defendant has the
fifth known arrest and the first time that he is convicted is
here." The court moved on to discuss the nature of the
offense in the current case, finding it troubling that
Rondón was selling drugs from the residence where he
lived with three young children. Finally, the court
considered the dangers to the community that drug dealing
creates and the violence that is commonly associated with it.
up its considerations, the court then explained:
[A] departure is warranted and reasons I already stated are
on the record. More so pointing as to the sale of drugs and
the violent conduct of this defendant and the sale of drugs
and keeping drugs in a house and ammunition where there were
minors, and what appears to be his violent tendencies.
the court sentenced Rondón to an upwardly variant
sentence of eighteen months of imprisonment. In its statement
of reasons, the court indicated that it departed from the
Guidelines because of "Criminal History Inadequacy"
and "Aggravating/Mitigating Circumstances." This
timely appeal followed.