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United States v. Rivera-Berrios

United States Court of Appeals, First Circuit

August 24, 2018

UNITED STATES OF AMERICA, Appellee,
v.
EZEQUIEL RIVERA-BERRIOS, Defendant, Appellant.

          APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF PUERTO RICO Hon. Francisco A. Besosa, U.S. District Judge

          Andrew S. Crouch for appellant.

          Thomas F. Klumper, Assistant United States Attorney, Senior Appellate Counsel, with whom Rosa Emilia Rodríguez-Vélez, United States Attorney, and Mariana E. Bauzá-Almonte, Assistant United States Attorney, Chief, Appellate Division, were on brief, for appellee.

          Before Torruella, Selya, and Barron, Circuit Judges.

          SELYA, CIRCUIT JUDGE.

         This appeal presents a question of first impression in this circuit: may a sentencing court assess criminal history points for a prison sentence imposed following revocation of probation when the revocation-triggering conduct also constitutes the gravamen of the federal offense of conviction? Concluding, as we do, that the court below correctly factored the revocation sentence into the appellant's criminal history score and proceeded to fashion a substantively reasonable sentence for the offense of conviction, we affirm.

         I. BACKGROUND

         Because this appeal follows in the wake of a guilty plea, we take the facts from the change-of-plea colloquy, the uncontested portions of the presentence investigation report (PSI Report), and the transcript of the sentencing hearing. See United States v. Rentas-Muñiz, 887 F.3d 1, 2 (1st Cir. 2018); United States v. Blodgett, 872 F.3d 66, 68 (1st Cir. 2017).

         In December of 2013, defendant-appellant Ezequiel Rivera-Berríos was convicted in a Puerto Rico court on one count of aggravated illegal appropriation and one count of illegal possession of a firearm. The court sentenced him to two consecutive three-year terms of probation. We fast-forward to May of 2016, when local police officers conducted a search of the appellant's residence in Cataño, Puerto Rico. They found a massive cache of weapons, including an AK-47-type rifle loaded with 74 rounds of ammunition. They also discovered a ziplock bag containing three face masks, a black ski hat, and other paraphernalia often associated with criminal activity.

         A federal grand jury sitting in the district of Puerto Rico subsequently charged the appellant with being a felon in possession of firearms and ammunition. See 18 U.S.C. § 922(g)(1). After initially maintaining his innocence, the appellant pleaded guilty on September 27, 2016. About five weeks later - subsequent to the appellant's guilty plea but before his federal sentencing - a Puerto Rico court revoked the appellant's terms of probation for the 2013 offenses and sentenced him instead to two consecutive three-year prison terms (the revocation sentence). Although the record contains very few details concerning the revocation proceeding, the parties agree that the revocation was triggered, at least in part, by the same unlawful weapons possession that formed the basis of the appellant's federal conviction under section 922(g)(1).

         In the PSI Report, the probation office recommended that the appellant be held responsible for a total offense level of 17 and slotted him into criminal history category (CHC) III, generating a guideline sentencing range of 30 to 37 months. See USSG Ch. 5, Pt. A (Sentencing Table). The appellant objected to his placement in CHC III, but the district court overruled his objection and adopted all of the recommended guideline calculations. At the disposition hearing, the court weighed the factors limned in 18 U.S.C. § 3553(a) and imposed an upwardly variant sentence - 48 months' imprisonment - to be served consecutively to the revocation sentence. This timely appeal followed.

         II. ANALYSIS

         As a general matter, we review the imposition of a sentence for abuse of discretion. See Gall v. United States, 552 U.S. 38, 51 (2007); United States v. Martin, 520 F.3d 87, 92 (1st Cir. 2008). This process "is characterized by a frank recognition of the substantial discretion vested in a sentencing court." United States v. Flores-Machicote, 706 F.3d 16, 20 (1st Cir. 2013).

         Judicial review of a challenged sentence typically entails "a two-step pavane." Id. At the first step, we consider claims of procedural error, which include "failing to calculate (or improperly calculating) the Guidelines range, treating the Guidelines as mandatory, failing to consider the § 3553(a) factors, selecting a sentence based on clearly erroneous facts, or failing to adequately explain the chosen sentence - including an explanation for any deviation from the Guidelines range." Gall, 552 U.S. at 51. If this step is successfully navigated, we proceed to the next step and appraise the ...


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