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Date: 10-15-2021
Case Style:
United States of America v. VÍCTOR VARGAS-MARTÍNEZ
Case Number: 16-2141
Judge: Malcolm Jones Howard
Court: United States Court of Appeals
For the First Circuit
Plaintiff's Attorney: W. Stephen Muldrow, United States Attorney, Mariana E. BauzáAlmonte, Assistant United States Attorney, Chief, Appellate
Division, and Francisco A. Besosa-Martínez, Assistant United
States Attorney
Defendant's Attorney:
Description:
Boston, MA - Criminal defense lawyer represented defendant with receipt of a firearm while under indictment for a felony along with possession with intent to distribute marihuana and possession of a firearm in furtherance of a drug trafficking offense charges.
On February 16, 2015, Puerto Rico Police Department officers observed Vargas reach under a stairwell in a public housing project, retrieve a drum magazine, and hand it to another individual who placed it in a bag. The officers detained Vargas
and the other individual. Inside the bag, the officers found the
drum magazine, which contained forty rounds of .40 caliber
ammunition, and a .40 caliber Kel Tec rifle with an obliterated
serial number, loaded with twenty-two rounds of ammunition. Under
the stairwell, the officers found a lunch box that had fifty-four
bags of marihuana identified with an "under armour" logo and two
Ziploc bags each containing seven baggies of marihuana. The
officers found twelve additional baggies of marihuana and two decks
of heroin in Vargas's jacket, and $369 in his pocket.
On February 18, 2015, a grand jury sitting in the
District of Puerto Rico returned an indictment charging Vargas
with possession with intent to distribute marihuana, in violation
of 21 U.S.C. §§ 841(a)(1), (b)(1)(B), and possession of a firearm
in furtherance of a drug trafficking offense, in violation of
18 U.S.C. § 924(c)(1)(A)(i) (Case No. 15-125).2 On February 23,
2015, Vargas was granted bail pending trial. As part of his
conditions of release, he had to wear an electronic monitoring
device and was placed in home detention, under the custody of his
mother.
Vargas, however, did not comply with his conditions of
release. At 7:27 p.m. on July 21, 2015, he left his home without
2 Vargas's confederate, later identified as Christopher
Nieves-Pérez, was also charged in the same indictment.
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authorization to do so. Vargas returned home, but he left again
later that night. At around 9:50 p.m., Puerto Rico Police officers
monitoring surveillance cameras saw Vargas acting suspiciously in
the parking lot of a Puma gas station in Bayamón, Puerto Rico.
They saw him reaching for his waistband for what seemed to be a
firearm. Police officers were dispatched to the area to take a
closer look. When they arrived at the area, the officers found
Vargas in the parking lot of a Bonanza restaurant, next to the
Puma gas station. He had a hammer, a loaded .40 caliber Ruger
pistol, a loaded magazine, a lighter, a flashlight, and $689 on
him. The officers arrested him.
Vargas asked the officers to inform his mother of his
arrest. The officers went to Vargas's home, informed Vargas's
mother of his situation and obtained her consent to search Vargas's
room. In his room, the officers found an additional loaded
firearm, a radio scanner, and a blade.
As a result of the events of July 21, 2015, Vargas was
charged in a new case (Case No. 15-485) with receiving a firearm
while being under indictment for a crime punishable by imprisonment
for a term exceeding one year, in violation of 18 U.S.C. §§ 922(n),
924(a)(2). This new case was assigned to a different judge than
the one presiding over Case No. 15-125.
In March 2016, Vargas pleaded guilty to the sole count
in Case No. 15-485 pursuant to a plea agreement. In the plea
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agreement, the parties calculated a base offense level of twelve
under United States Sentencing Guidelines ("U.S.S.G.")
§ 2K2.1(a)(7), and a two-level reduction under § 3E1.1 for
Vargas's timely acceptance of responsibility, for a total offense
level of ten. The parties agreed to recommend a sentence at the
lower end of the resulting applicable Guidelines Sentencing Range
("GSR") when combining the total offense level of ten with the
criminal history category to be determined by the court. If
Vargas's criminal history category turned out to be I, the
resulting GSR would be six to twelve months and the parties would
recommend six months of imprisonment.
The following month, Vargas pleaded guilty to the
firearm count in Case No. 15-125 pursuant to another plea
agreement. In that plea agreement, the parties noted that the
guideline sentence for the offense of conviction was sixty months
of imprisonment, the statutory mandatory minimum. The parties
agreed to recommend that sentence to the court.
The Presentence Investigation Report ("PSR") in each
case tracked the plea agreements' calculations of the GSRs. Vargas
then requested that the court conduct a single sentencing hearing
in which he would be sentenced for both counts of conviction. The
court granted his request.
At the sentencing hearing, the court clarified that,
although Vargas was being sentenced simultaneously in both cases,
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he was being sentenced for "separate crimes," thus the cases were
"not consolidated for purposes of relevant conduct" and the
sentences would not be "concurrent." The court then calculated
the Guidelines' recommended sentence for each count of conviction.
In Case No. 15-485, it calculated a total offense level of ten,
which resulted from a base offense level of twelve pursuant to
U.S.S.G. § 2K2.1 and a two-level reduction pursuant to U.S.S.G.
§ 3E1.1(a) for Vargas's timely acceptance of responsibility. The
total offense level of ten, combined with a criminal history
category of I, yielded a GSR of six to twelve months of
imprisonment. As to Case No. 15-125, the court noted that the
statute allowed for an imprisonment term between sixty months and
life, and that the recommended guideline sentence was the
statutory-minimum term of sixty months' imprisonment.
The court stated that it had reviewed the plea
agreements, the PSRs, the parties' sentencing memoranda, had heard
counsels' arguments, and had considered the 18 U.S.C. § 3553(a)
sentencing factors. The court referenced Vargas's history and
characteristics, including his age, education, and prospects for
rehabilitation, as well as the "need to promote respect for the
law, provide just punishment, and protect the community from
further crimes [by Vargas]." It recounted the facts leading to
the two counts of conviction and commented that it was "troubling"
that while Vargas was on bail, he was "not obeying the conditions
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of release"; rather, he was "absconding from his residence" and
committing another firearm offense similar to the one for which he
was already facing trial. It was "extremely troubling" to the
court that Vargas "simply [did] not abide by the law."
Furthermore, the court mentioned that firearm offenses such as
those committed by Vargas are serious offenses not to be taken
lightly, especially in light of Puerto Rico's alarming crime rate.
Prior to sentencing Vargas, the court inquired from the
government whether it would move to dismiss the drug trafficking
count pending in Case No. 15-125 as part of the plea agreement in
that case, to which the government responded in the affirmative.
The court also noted that Vargas's criminal history category of I
in Case No. 15-485 was "a little bit deceiving" because, although
he had a conviction in Case No. 15-125, the fact that he had not
yet been sentenced translated into a lower criminal history
category and, consequently, a lower GSR.
The court then acknowledged the parties' recommended
sentence of sixty months in Case No. 15-125 but rejected it and
imposed an upwardly variant sentence of seventy-five months'
imprisonment, to be followed by five years of supervised release.
In the court's view, the parties' 60-month "recommendation
underrepresent[ed] the severity of the criminal conduct in [that]
case and more so the lack of utter respect for the [c]ourt's
conditions of release [on bail]." The court also highlighted that
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the firearm in Case No. 15-125 was loaded with twenty-two rounds
of ammunition and that, in addition, Vargas had a drum magazine
with forty additional rounds of ammunition, which could have killed
"a lot of people."
As to Case No. 15-485, the court also rejected the
parties' recommended sentence of six months' imprisonment and
imposed an upwardly variant sentence of eighteen months, to be
served consecutively to the sentence in Case No. 15-125, and to be
followed by three years of supervised release. The court noted
the "severity of the conduct," the fact that this was "repeated
conduct" as the offense was similar to that which gave rise to
Case No. 15-125, and underscored that "this [second] case [was]
way too soon" after the first one. In the court's view, that
Vargas committed this offense just a couple of months after being
released on bond in Case No. 15-125 showed his blatant disrespect
for the law.
The government then requested that the drug trafficking
count in Case No. 15-125 be dismissed pursuant to the plea
agreement. The court granted the request. After sentencing
Vargas, the court mentioned that it had considered a higher
sentence because of the "troubl[ing]" nature of Vargas's conduct,
but decided against it because of Vargas's "prospects for
rehabilitation" due to his young age. It also explained that if
the government had not dismissed the drug trafficking count in
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Case No. 15-125, he would have faced "another consecutive sentence"
so, in the court's opinion, Vargas "benefit[ed]" from the plea
deal and the court's sentence. Vargas did not object to the
sentences imposed. These consolidated appeals followed.3
II. ANALYSIS
On appeal, Vargas challenges the procedural
reasonableness of both sentences and the substantive
reasonableness of his sentence in Case No. 15-485. We review
sentencing decisions for "reasonableness, regardless of whether
they fall inside or outside the applicable GSR." United States v.
Turbides-Leonardo, 468 F.3d 34, 40 (1st Cir. 2006). Our review is
bifurcated. We first ensure that the district court has committed
no significant procedural error, such as "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."
United States v. Díaz-Rivera, 957 F.3d 20, 25 (1st Cir. 2020)
(quoting United States v. Bermúdez-Meléndez, 827 F.3d 160, 163
3 Because Vargas was not sentenced in accordance with the
parties' sentencing recommendations, the waiver-of-appellaterights provisions in his plea agreements do not bar his appeals.
See United States v. Fernández–Cabrera, 625 F.3d 48, 51 (1st Cir.
2010).
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(1st Cir. 2016)). "[I]f the sentence is procedurally sound, we
then ask whether the sentence is substantively reasonable." United
States v. Rossignol, 780 F.3d 475, 477 (1st Cir. 2015). A sentence
is substantively reasonable so long as the sentencing court has
provided a "plausible sentencing rationale" and reached a
"defensible result." United States v. Martin, 520 F.3d 87, 96
(1st Cir. 2008) (citing United States v. Jiménez-Beltre, 440 F.3d
514, 519 (1st Cir. 2006)).
We generally apply the deferential abuse-of-discretion
standard to preserved challenges to the procedural reasonableness
of a sentence.4 United States v. Del Valle-Rodríguez, 761 F.3d
171, 176 (1st Cir. 2014). However, when, as here, the defendant
failed to preserve an objection to the procedural reasonableness
below, the plain error standard supplants that customary standard
of review. United States v. Rondón-García, 886 F.3d 14, 20
(1st Cir. 2018). Under the plain error standard, the defendant
must show: "(1) that an error occurred (2) which was clear or
obvious and which not only (3) affected the defendant's
substantial rights, but also (4) seriously impaired the fairness,
integrity, or public reputation of judicial proceedings."
4 Under this standard, "we afford de novo review to the
sentencing court's interpretation and application of the
sentencing guidelines, assay the court's factfinding for clear
error, and evaluate its judgment calls for abuse of discretion."
United States v. Ruiz-Huertas, 792 F.3d 223, 226 (1st Cir. 2015).
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United States v. Medina-Villegas, 700 F.3d 580, 583 (1st Cir. 2012)
(quoting United States v. Duarte, 246 F.3d 56, 60 (1st Cir. 2001)).
Vargas first argues that his 75-month sentence in Case
No. 15-125 was the result of the district court's "misapplication"
of the Guidelines. According to Vargas, because the guideline
sentence for a § 924(c) conviction is sixty months, "[his] sentence
should have been capped at the 60-month mandatory minimum" and the
court could not consider "other adjustments" and enhancements,
including "[e]nhancements for relevant conduct" in determining his
sentence. In his view, because the court relied on the facts of
Case No. 15-485 to "enhance his sentence beyond the called for
60 months," it misapplied the Guidelines and the sentence in
Case No. 15-125 was procedurally unreasonable.
Vargas's argument is based on faulty foundations. For
starters, we note that Vargas conceded both below and on appeal
that the court's Guidelines calculations were correct.
Furthermore, the record shows that, contrary to Vargas's
contentions, the court did not apply any adjustments or
enhancements (based on relevant conduct5 or otherwise) under the
Guidelines in determining the sentence for his § 924(c) conviction.
Instead, the court varied upwardly from the guideline sentence
5 The court clarified that it was sentencing Vargas for
"separate crimes" and that the facts leading to Case No. 15-485
were not considered "relevant conduct" to the offense of conviction
in Case No. 15-125.
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merely based on the § 3553(a) sentencing factors. And despite
Vargas's claim to the contrary, nothing prohibited the court from
doing so. That the guideline sentence for a § 924(c) conviction
is "the minimum term of imprisonment required by the statute"
(sixty months), see U.S.S.G. § 2K2.4(b), does not mean that the
court is required to impose that sentence. See United States v.
Booker, 543 U.S. 220, 245 (2005) (holding that the Guidelines are
no longer mandatory, but rather advisory). The court is free to
select a sentence within the range allowed by the statute. Here,
the penalty range for Vargas's § 924(c) conviction was between
five years (or sixty months) and life imprisonment pursuant to
18 U.S.C. § 924(c)(1)(A)(i). See United States v. Ortiz-García,
665 F.3d 279, 285 (1st Cir. 2011). Hence, the court could select
a sentence from that range based on its weighing of the different
sentencing factors, as long as the sentence was "not greater than
necessary[] to achieve the purpose of sentencing." United States
v. Pupo, 995 F.3d 23, 30 n.6 (1st Cir. 2021).
Vargas next argues that, under the Guidelines, any
§ 924(c) sentence over the statutory mandatory minimum constitutes
a "departure" governed by the Guidelines rather than a "variance"
and that such a departure was unwarranted here since this was a
"run-of-the-mill possession in furtherance case" and "there were
no factors that took the offense [of conviction] out of the
heartland." According to Vargas, the court based its alleged
- 13 -
departure on Case No. 15-485, in which he had a firearm "merely
stuck in his waistband . . . . for protection as he had been
threatened."
We have observed that, post-United States v. Booker,
543 U.S. 220 (2005), the distinction between departures and
variances is one of form rather than substance. United States v.
Santini-Santiago, 846 F.3d 487, 490 (1st Cir. 2017). In any event,
we have repeatedly rejected Vargas's contention that any § 924(c)
sentence over the statutory mandatory minimum constitutes a
departure. See United States v. Oquendo–García, 783 F.3d 54, 56
(1st Cir. 2015) (explaining that "[w]e will treat a sentence above
a statutory mandatory minimum under section 924(c) as an upward
variance, absent some indication in the sentencing record which
persuades us that the district court intended to or in fact applied
an upward departure") (internal quotation marks, brackets, and
citations omitted); see also United States v. Rivera-Gonzalez,
809 F.3d 706, 710-11 (1st Cir. 2016) (rejecting same argument as
contrary to our case law). Here, nothing in the record indicates
that the court was applying an upward departure. To the contrary,
the record reveals the court's intention to impose an upward
variance based on the § 3553(a) sentencing factors. And although
Vargas diminishes the seriousness of his conduct claiming that
this was a "run-of-the-mill possession," the district court's
different view on the seriousness of Vargas's conduct and its
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pondering of the remaining § 3553(a) sentencing factors is not
clearly or obviously erroneous. The record reflects that the
court's decision to impose an above-guideline sentence in
Case No. 15-125 was not just because Vargas had a firearm "merely
stuck in his waistband." Rather, it reflects that the driving
force behind the upward variance was Vargas's evident lack of
respect for the law, the court, and his conditions of release.
The court explained that it was "deeply troubled" by the fact that,
shortly after being granted bail pending trial, Vargas absconded
from home detention and armed himself with another loaded firearm
and forty additional rounds of ammunition, which, in the court's
view, spoke volumes about Vargas's characteristics and showed his
utter lack of respect for the court and his conditions of release.
Furthermore, mindful of Vargas's characteristics, the court also
considered that the offense for which Vargas was being sentenced
was a serious one, which could have gotten many people killed and
thus should not be taken lightly, especially in light of Puerto
Rico's alarming crime rate. See United States v. CarrasquilloSánchez, 9 F.4th 56, 60-61 (1st Cir. 2021) (explaining that courts
may consider community-based concerns, such as the high incidence
of gun violence in Puerto Rico, provided that such consideration
is tied to the "individual characteristics of either the offender
or the offense of conviction"). Moreover, the court noted that
Vargas was benefiting from the dismissal of the drug trafficking
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charge, which would have resulted in "another consecutive
sentence." See Díaz-Rivera, 957 F.3d at 27-28 (validating the
district court's consideration of the nature of the charges that
were dismissed pursuant to the plea agreement in imposing an
upwardly variant sentence). The district court's explanation as
to why a 15-month upward variance was necessary to accomplish the
goals of sentencing, including to promote respect for the law,
provide just punishment to Vargas, and protect the community from
further crimes by him, was not error, plain or otherwise.
Vargas next argues that the court improperly imposed
multiple punishments for the same act, i.e., his possession of the
Ruger pistol. According to Vargas, the court impermissibly "double
counted th[e] same Ruger possession" and imposed three different
sentences for his possession of that firearm: a 12-month sentence
"under [U.S.S.G.] § 2K2.1" in Case No. 15-485, an additional
6-month sentence in that same case, and an enhancement by fifteen
months for the sentence in Case No. 15-125. His argument lacks
merit.
Vargas did not receive three sentences for the same
offense. He received two sentences, each for different offenses
committed on different dates: he received a 75-month sentence in
Case No. 15-125 for his possession of the Kel Tec rifle in
furtherance of a drug trafficking offense on February 16, 2015,
and an 18-month sentence in Case No. 15-485 for possessing the
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Ruger pistol while under indictment for a felony on July 21, 2015.6
Although both sentences were imposed in the same proceeding, the
court clearly stated that the two sentences were being imposed for
"different offenses" in separate cases.
In sentencing Vargas for his possession of a firearm in
furtherance of drug trafficking in Case No. 15-125, the court took
into consideration, among other factors indicative of Vargas's
characteristics, that he had violated his release conditions by
possessing another firearm -- the Ruger pistol. This, however,
did not constitute impermissible double counting. "Double
counting concerns usually involve the use of a single factor more
than once to calculate the [applicable GSR.]" United States v.
Maisonet-González, 785 F.3d 757, 764 (1st Cir. 2015) (citing
United States v. Fiume, 708 F.3d 59, 61 (1st Cir. 2013)). Here,
the court did not use the Ruger possession even once in determining
the guideline sentence.
Likewise, the court did not engage in double counting
when sentencing Vargas in Case No. 15-485 as it did not use
Vargas's possession of the Ruger pistol twice in calculating the
applicable GSR. Although the court did consider the nature and
circumstances of the offense in fashioning the sentence after
6 Nor did Vargas receive two sentences in Case No. 15-485.
He received a single sentence that varied upwardly (by six months)
from the high end of the applicable GSR (which was twelve months).
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calculating the GSR, this does not constitute double counting.
See id. at 764 (explaining that an "overlap between the Guidelines
and other sentencing factors enumerated in 18 U.S.C. § 3553(a)"
-- such as when the court "factor[s] [a] defendant's prior criminal
history into his base offense level and then consider[s] their
particular gravity as a factor in determining how stringent his
sentence should be" -- "d[oes] not constitute double counting and
is neither surprising nor impermissible" (citation omitted));
see also United States v. Cruzado–Laureano, 527 F.3d 231, 236
(1st Cir. 2008) ("The court's consideration of appellant's
attitude toward the crime, as well as the serious nature of the
offense, was appropriate under both the Guidelines and 18 U.S.C.
§ 3553(a) . . . . "). And to the extent that Vargas's plaint can
be construed as challenging the court's consideration of the same
§ 3553(a) sentencing factors in fashioning both sentences, it fares
no better. Here, the court imposed two separate sentences for two
different offenses in two separate cases. The court had the duty
to consider all the § 3553(a) sentencing factors in determining
each of the sentences. See Díaz-Rivera, 957 F.3d at 25 (explaining
that failing to consider the § 3553(a) sentencing factors is a
procedural error).
Building on his previous argument, Vargas argues that
the district court erred in imposing consecutive sentences. He
acknowledges that 18 U.S.C. § 924(c)(1)(D)(ii) requires that his
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sentence for his § 924(c) conviction in Case No. 15-125 be
consecutive to any other term of imprisonment imposed on him but
argues that such requirement only applies to the "60-month
mandatory minimum." He insists that "the 15-month bump beyond
that mandatory consecutive 60 months should have been concurrent
to the [sentence in Case No. 15-485] because it was for the same
exact conduct."
Although Vargas conveniently breaks up his 75-month
sentence for his § 924(c) conviction into "60-month mandatory
minimum" plus "15-month bump," the truth is he received a single
75-month sentence for his conviction. The statute requires that
the entire sentence imposed for his § 924(c) conviction run
consecutive to any other term of imprisonment imposed on him.
See 18 U.S.C. § 924(c)(1)(D)(ii) (stating that "no term of
imprisonment imposed on a person under this subsection shall run
concurrently with any other term of imprisonment imposed on the
person"). There is nothing unreasonable about imposing a
consecutive sentence when the consecutive nature is required by
law. Furthermore, we reiterate that this sentence was imposed for
his possession of a Kel Tec rifle in furtherance of a drug
trafficking offense (Case No. 15-125), which was a different
offense than his possession of a Ruger pistol while under
indictment (Case No. 15-485).
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Finally, Vargas contends that his sentence in
Case No. 15-485 is substantively unreasonable because the district
court relied exclusively on the elements of the offense to justify
a sentence above the GSR. According to Vargas, "the court did not
provide any reason" for imposing a variant sentence other than "he
was on bond [and] should not be carrying another firearm," which
were the elements of the offense. Because the guideline sentence
already accounted for those facts, his argument goes, the court
could not use them to justify a variance absent an explanation as
to why his situation was different from the ordinary situation
covered by the Guidelines.7
7 In his brief, Vargas refers to this argument about the
adequacy of the court's explanation for its chosen sentence as
both procedural and substantive. In the past, we have
characterized similar arguments under our precedent "as either a
[claim of] procedural error or a challenge to the substantive
reasonableness of the sentence." United States v. García-Pérez,
9 F.4th 48, 52 n.1 (1st Cir. 2021) (alteration in original)
(quoting United States v. Crespo-Ríos, 787 F.3d 34, 37 n.3
(1st Cir. 2015)). Vargas's claim of procedural error is not
preserved. And although it is clear that his argument for a
6-month sentence preserved his claim on appeal that his 18-month
sentence was unreasonably long, see Holguin-Hernandez v.
United States, ___ U.S. ___, 140 S. Ct. 762, 766 (2020), it is
much less clear whether it was sufficient to preserve any other
substantive-reasonableness argument, see id. at 767 (Alito, J.,
concurring) (clarifying that the Court was not deciding "what is
sufficient to preserve any 'particular' substantive-reasonableness
argument"). Nevertheless, because his challenge fails even if we
adopt the substantive framing and assume favorably to him that his
claim was preserved, we need not conclusively decide the proper
framing or whether his claim was preserved.
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Preserved challenges to the substantive reasonableness
of criminal sentences engender abuse-of-discretion review.
See Holguin-Hernandez v. United States, ___ U.S. ___, 140 S. Ct.
762, 766 (2020); United States v. Bruno-Campos, 978 F.3d 801, 808
(1st Cir. 2020). We approach such challenges mindful that "[t]here
is no one reasonable sentence in any given case but, rather, a
universe of reasonable sentencing outcomes." United States v.
Clogston, 662 F.3d 588, 592 (1st Cir. 2011) (citing Martin,
520 F.3d at 92). Our task is "to determine whether the
[challenged] sentence falls within this broad universe."
United States v. Rivera-Morales, 961 F.3d 1, 21 (1st Cir. 2020).
The hallmarks of a substantively reasonable sentence are
a plausible sentencing rationale and a defensible result.
Clogston, 662 F.3d at 593. Where, as here, a variant sentence is
imposed, the district court's explanation for the deviation
"should typically be rooted either in the nature and circumstances
of the offense or the characteristics of the offender," and "must
justify a variance of the magnitude in question." Martin, 520 F.3d
at 91. This requirement, however, "does not require the court to
be precise to the point of pedantry." Del Valle-Rodríguez,
761 F.3d at 177. It is against this backdrop that we turn to the
defendant's contention.
Vargas is right that a sentencing court may not
exclusively rely on the elements of the offense to support an
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upward variance. See United States v. García-Pérez, 9 F.4th 48,
53 (1st Cir. 2021) (explaining that the court's reliance on the
defendant's "possession of a machinegun cannot suffice as an
adequate explanation for its [upwardly] varian[t]" sentence for
his 18 U.S.C. § 922(o) conviction); see also United States v.
Rivera-Santiago, 919 F.3d 82, 85 (1st Cir. 2019) (explaining that
"[w]hen a § 3553(a) consideration is already accounted for in the
guideline range, a sentencing court 'must articulate specifically
the reasons that this particular defendant's situation is
different from the ordinary situation covered by the guidelines
calculation'" (quoting United States v. Guzman-Fernandez, 824 F.3d
173, 177 (1st Cir. 2016))). However, contrary to Vargas's
contentions, the district court did not rely exclusively on the
elements of Vargas's offense of conviction in imposing an upwardly
variant sentence. The record makes manifest that the court
premised Vargas's sentence on a panoply of facts to which it
alluded in open court immediately before imposing the sentence,
and which were relevant to the nature and circumstances of the
offense and to Vargas's characteristics. The court emphasized not
only the severity of Vargas's conduct and that such conduct was
similar to the one for which he was awaiting trial in
Case No. 15-125, but also the closeness in time between his release
on bail in Case No. 15-125 and his new criminal conduct. The court
expressed its concern that "this [second] case [was] way too soon"
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after the first one. Furthermore, the court noted that, in
addition to the loaded firearm and multiple rounds of ammunitions
seized from Vargas when he was arrested near the Bonanza
restaurant, the officers had found an additional loaded firearm,
a radio scanner, and a blade when they searched his bedroom on the
day of his arrest. In the court's view, this showed Vargas's
blatant disrespect for the law and that he was "an individual who
simply does not abide by the law." In addition, the court
considered that Vargas's criminal history category of I was "a
little bit deceiving" because, although he had already been
convicted in Case No. 15-125, the fact that he had not yet been
sentenced translated into a lower criminal history category and,
thus, a lower GSR. See Del Valle-Rodríguez, 761 F.3d at 176 ("[A]n
upward variance may be justified by . . . a finding that the
defendant's criminal history score underrepresents the gravity of
his past conduct . . . ."). Upon considering these circumstances,
as well as the remaining § 3553(a) sentencing factors, the court
determined that the GSR did not properly reflect the seriousness
of the offense, did not necessarily promote respect for the law or
protect the community from further crimes by Vargas. The
explanation provided by the court was adequate to support its
variant sentence. Because the district court gave a plausible
explanation and reached a defensible result in light of the
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§ 3553(a) sentencing factors, Vargas's sentence in Case No. 15-458
is substantively reasonable.
Outcome: For the foregoing reasons, Vargas's sentences are
affirmed
Plaintiff's Experts:
Defendant's Experts:
Comments: