FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF
PUERTO RICO Hon. Francisco A. Besosa, U.S. District Judge
S. Crouch for appellant.
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
Torruella, Selya, and Barron, Circuit Judges.
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.
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).
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.
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).
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.
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).
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 ...