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United States v. Tanco-Pizarro

United States Court of Appeals, First Circuit

June 13, 2018

RAFAEL TANCO-PIZARRO, Defendant, Appellant.


          Gail M. Latouf for appellant.

          John A. Mathews II, with whom Rosa Emilia Rodríguez-Vélez, United States Attorney, Mariana E. Bauzá-Almonte, Assistant United States Attorney, Chief, Appellate Division, and Tiffany V. Monrose, Assistant United States Attorney, were on brief, for appellee.

          Before Lynch, Stahl, and Thompson, Circuit Judges.


         Rafael Tanco-Pizarro mounts a multi-dimensional challenge - on both procedural and substantive grounds - to the 60-month sentence he received following the revocation of his supervised release. After giving his arguments full and fair consideration, we affirm.

         Revocation Primer

         To help the reader better understand what happened below, we begin with some general observations about revocation sentencing.

         By statute, a court may revoke a person's supervised release if it finds the government proved a release-condition violation by a preponderance of the evidence, see 18 U.S.C. § 3583(e)(3), which is a more-likely-than-not standard, see United States v. Edwards, 857 F.3d 420, 421 (1st Cir. 2017). Shifting to sentencing, the court starts its analysis by calculating the suggested prison range under the federal sentencing guidelines - a range that is based on the offender's criminal history at the time of his original sentence and the grade of his violation. U.S.S.G. § 7B1.4(a). There are three violation grades, running from grade A (the most serious) to grade C (the least serious). See id. §§ 7B1.1, 7B1.3. The violation's grade is determined by the "conduct constituting" any "federal, state, or local offense punishable by" various "term[s] of imprisonment." See id. § 7B1.1(a). Armed with the relevant info, the court turns to the guidelines' "Revocation Table." And by plotting the offender's violation grade along the table's vertical axis and his criminal history along the table's horizontal axis, the court ends up with the advisory-prison range. See id. § 7B1.4.

         The word "advisory" is a dead giveaway that the table's ranges are nonbinding. See United States v. Márquez-García, 862 F.3d 143, 147 n.2 (1st Cir. 2017). A court has discretion, but not carte blanche. A statute caps the stiffest possible sentences. And the statutory cap depends "on the severity of 'the offense that resulted in the term of supervised release.'" United States v. Fontanez, 845 F.3d 439, 445 (1st Cir. 2017) (quoting 18 U.S.C. § 3583(e)(3)). "For that purpose, " § 3583(e) groups offenses "in various categories." Id. And these "groupings have real-world consequences, " as we recently wrote: "upon revocation of supervised release" a

[c]lass C or D felony bears a maximum sentence . . . of two years; a [c]lass B felony bears a maximum sentence . . of three years; a [c]lass A felony bears a maximum sentence . . . of five years; and all other offenses bear a maximum sentence . . . of one year.

Id. at 445-46 (citing § 3583(e)(3)). A court can sentence the offender to a prison stint within the applicable statutory maximum, after considering the relevant sentencing factors that help guide the court's discretion, see, e.g., United States v. Vargas-Dávila, 649 F.3d 129, 131-32 (1st Cir. 2011) - and we will say more about that later.

         With this short primer in place, we turn to Tanco-Pizarro's case.

         Violations and Fallout

         The key facts are simple and undisputed. Almost eight years ago, in December 2010, Tanco-Pizarro finished a prison sentence for possessing a gun and ammo in furtherance of a drug-trafficking crime and began a five-year term of supervised release. And things went swimmingly, apparently - at least for a while.

         In December 2014 and again in September 2015, probation notified the district court that Tanco-Pizarro had broken several conditions of supervised release. Only three are relevant here. The first one arose from probation's claim that it had tried without success to contact him "numerous times" (by phone and in person), that he had not updated his contact info as required, and that he had failed to report to the probation office as requested -all of which, probation alleged, violated a supervised-release term requiring him to "answer truthfully all inquiries by the probation officer and follow the instructions of the probation officer." The next two stem from probation's claim that while police officers in San Juan were helping Tanco-Pizarro get out of a BMW overturned on a road, they found an "AK rifle, " a "Glock pistol, " and a collection of magazines and ammunition in the auto - all of which, according to probation, violated supervised-release terms forbidding him from committing another "federal, state[, ] or local crime" and banning him from possessing "a firearm" or "ammunition" (excess capitalization omitted).

         Matters went from bad to worse for Tanco-Pizarro, when in October 2015 a federal grand jury - relying on what the police had recovered from the flipped-over Beemer - indicted him for being a felon in possession of a firearm. Skipping over details not relevant to this appeal, we see that hard on the heels of this indictment, Tanco-Pizarro moved for a continuance of the final-revocation hearing and moved for discovery: filed 7 days before the hearing, the continuance motion argued that "the outcome" of the felon-in-possession case "may have an effect in the disposition of the instant case"; filed 2 days before the hearing, the discovery motion asked that the court order the government to turn over certain documents related to the felon-in-possession matter. The court denied his motions. And following a hearing, the court revoked his supervised release. To avoid consuming too many pages of the Federal Reporter, we cover only the highlights from that proceeding.

         Starting with the felon-in-possession charge first, Tanco-Pizarro (through his lawyer) disputed whether the seized firearm was an automatic - in this instance (the parties agreed) an automatic firearm would support a grade A violation, while a non-automatic firearm would support a grade B violation. And he moved orally for the court to hear the testimony of the probation officer on this point. But the court denied the motion. He then conceded that the court could rely on the indictment to determine whether he had violated his supervised release by possessing a firearm. Tackling the failure-to-report violation, he "accept[ed]" that infraction, conceding (in the words of his lawyer) that "after November of 2014, " his "whereabouts . . . were unknown until the time that he was arrested" following the overturned-BMW incident - a "grade C violation." No surprise, then, that the court found that he violated his supervised release by "not reporting to the probation officer." But the court found, too, that his "new criminal behavior" also infracted his supervised release - a "grade B violation, " not a grade A violation.

         Using the higher-found grade and a criminal history category of II, the court calculated Tanco-Pizarro's advisory-prison range to be 6 to 12 months. See U.S.S.G. §§ 7B1.1(a)(2), 7B1.4(a). And because his original crime was a "class A felony, " the court said that it could put him back behind bars for up to 60 months, the maximum penalty provided by statute.

         The government pushed for a 60-month sentence. For his part, Tanco-Pizarro's counsel did not request a specific sentence. But he did ask the court to keep in mind that his client faced a sentencing range of 37 to 46 months for the felon-in-possession charge and that any sentence on that charge would probably "run[] consecutively to" any revocation sentence.

         Concluding Tanco-Pizarro had shown he would not comply with the law or with the conditions of supervision, the court sentenced him to 60 months in prison - with no further supervised release. That sentence, the court added, "reflect[s] the seriousness of the offense, promote[s] respect for the law, . . . provide[s] just punishment for the offense, . . . afford[s] adequate deterrence, and protect[s] the public from further crimes" - and thus was "sufficient but not greater than necessary in this case." Significantly, neither Tanco-Pizarro nor his lawyer objected to the sentence.

         Five days later, however, Tanco-Pizarro moved for reconsideration, arguing as relevant here that the district court did not adequately explain its sentencing rationale and wrongly factored "the seriousness" of the felon-in-possession crime, "the promotion of respect for the law, and punishment for" the felon-in-possession "offense" into its sentencing analysis.[1] The government opposed the motion. And the court denied it, ruling - in an electronic order - that Tanco-Pizarro's "lack of compliance with the reporting requirement of his supervised release and the fact that he was arrested while heavily armed . . . are strong reasons for the [c]ourt to impose" a 60-month sentence.[2]

         That brings us to today's appeal, which, as we said, centers around Tanco-Pizarro's claim that the 60-month sentence is both ...

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