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United States v. Rondon-Garcia

United States Court of Appeals, First Circuit

March 23, 2018



          Mary June Ciresi, on brief for appellant.

          John 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.

          Before Howard, Chief Judge, Torruella and Kayatta, Circuit Judges.

          TORRUELLA, Circuit Judge.

         In this sentencing appeal, the Defendant-Appellant Santos Daniel Rondón-García ("Rondón") insists that his eighteen-month sentence is both procedurally and substantively unreasonable. After careful review, we affirm.

         I. Background

         As this 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. 2017).

         On 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-Castrillón ("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.

         That 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.

         On 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.

         On 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.

         On 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.

         Rondón 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 Rodríguez's letter.

         The 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.

         Following 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.[1] 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.

         As the 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.

         Summing 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.

         Ultimately, 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.

         II. ...

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