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Date: 10-17-2021
Case Style:
United States of America v. ANGEL MIGUEL CARRASQUILLO-SÁNCHEZ
Case Number: 19-2151
Judge: David Jeremiah Barron
Court: United States Court of Appeals
For the First Circuit
Plaintiff's Attorney: Francisco A. Besosa-Martínez, with whom W. Stephen Muldrow,
United States Attorney, and Mariana E. Bauzá-Almonte, Assistant
United States Attorney, Chief, Appellate Division
Defendant's Attorney:
Description:
Boston, MA - Criminal defense lawyer represented defendant with a one count of firearm possession charge.
Carrasquillo was arrested by local police officers on
May 21, 2019, in the afternoon in Loíza, Puerto Rico, following a
traffic stop. At the time of his arrest, Carrasquillo was
travelling in a car with three other individuals -- among them his
cousin. Carrasquillo was in the possession of a Glock pistol that
had been modified to fire automatically. That firearm was loaded
with twenty-nine rounds of ammunition. Five magazines that
contained an additional 128 rounds of ammunition lay next to that
firearm in the car. Carrasquillo's cousin, too, carried a loaded
firearm and additional magazines and rounds of ammunition.
On May 30, 2019, a federal grand jury returned an
indictment against Carrasquillo and his cousin. The indictment
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charged Carrasquillo with possession of a machinegun in violation
of 18 U.S.C. §§ 922(o) and 924(a)(2) (Count One) and with
possession of a firearm by a person "who is an unlawful user
of . . . any controlled substance" in violation of 18 U.S.C.
§§ 922(g)(3) and 924(a)(2) (Count Two).
Carrasquillo entered a guilty plea on July 24, 2019, to
the second of these two counts. In his plea agreement, he admitted
that he was an unlawful user of a controlled substance because he
had been "a habitual user of marihuana and smoke[d] 3 joints of
marihuana a day since he was 17 years old." Carrasquillo and the
government also agreed to advise the District Court that for
purposes of calculating Carrasquillo's Guidelines sentencing range
("GSR"), his Total Offense Level ("TOL") was seventeen. They
further agreed that they would each recommend a prison sentence of
twenty-four months.
At the sentencing hearing on October 21, 2019, the
District Court followed the plea agreement's advisory calculation
of Carrasquillo's TOL. It did so by finding first that
Carrasquillo's Base Offense Level ("BOL") was twenty pursuant to
U.S.S.G. § 2K2.1(a)(4), in part because his offense involved a
"semi-automatic weapon that is capable of accepting a large
capacity magazine or a firearm described in 26 [U.S.C.]
§ 5845[(a)]." It then applied a three-level reduction pursuant to
U.S.S.G. § 3E1.1(a) and (b). The District Court also found that
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Carrasquillo had no prior known arrests or convictions. Based on
Carrasquillo's TOL and criminal history, the District Court
calculated Carrasquillo's GSR to be twenty-four to thirty months
of imprisonment.
The District Court, however, imposed a variant sentence
of forty-eight months -- eighteen months more than the top of the
GSR and twice the length of the sentence recommended by both
parties. Carrasquillo timely appealed.
II.
Carrasquillo argues on appeal that his forty-eight-month
prison sentence is both procedurally and substantively
unreasonable. We review his claim of procedural error first. See
Gall v. United States, 552 U.S. 38, 51 (2007).
Carrasquillo argues that the District Court "failed to
properly apply the 18 U.S.C. [§ ]3553(a) factors" and "based its
sentence on clearly erroneous facts." That is so, he contends,
because the only individualized finding on which the District Court
relied for its upward variance was one that it necessarily had
already taken into account in its calculation of the GSR --
Carrasquillo's "possession of a machinegun and an extended
magazine." In so arguing, he acknowledges that the District Court,
in explaining the variance, also relied on what it described as
"the problem of criminality in P.R." and on several specific
instances of gun violence in the Commonwealth. But, Carrasquillo
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argues, that aspect of its explanation cannot suffice to render
the explanation sufficient because the specific incidents were
"totally disassociated [from] his offense conduct" and the concern
about the general problem of crime was not adequately linked to
his particular conduct beyond his having possessed a machine gun.
The government contends that Carrasquillo did not
preserve this procedural challenge during the sentencing hearing
and that we should therefore review the District Court's
explanation of its variant sentence only for plain error. We
agree.
During the sentencing hearing, Carrasquillo's counsel
voiced only a single objection to the variant sentence. That
objection was "to the length of the sentence imposed." His
objection thus appeared to concern only the substantive
unreasonableness of his sentence due to its length and independent
of the adequacy of the explanation offered by the District Court
in support of it. Cf. United States v. Rivera-Berríos, 968 F.3d
130, 134 (1st Cir. 2020) (concluding that the defendant preserved
his procedural claim below because "appellant's counsel made
clear" not only "that he believed that the sentence was
'excessive,'" but also "that the court had not articulated any
cognizable grounds that would support an upward variance"). For
that reason, we review his claim of procedural error for plain
error. See United States v. Perretta, 804 F.3d 53, 57 (1st Cir.
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2015); United States v. Contreras-Delgado, 913 F.3d 232, 238 (1st
Cir. 2019).
Under this standard of review, a 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." Perretta, 804 F.3d at 57
(quoting United States v. Duarte, 246 F.3d 56, 60 (1st Cir. 2001)).
We find that Carrasquillo satisfies all these requirements.
We start with the basics. A district court "must
adequately explain the chosen sentence to allow for meaningful
appellate review and to promote the perception of fair sentencing."
Gall, 552 U.S. at 50. When a district court varies from the GSR,
as it did in this case, moreover, we "must consider the extent of
the deviation and ensure that the justification is sufficiently
compelling to support the degree of the variance." Id.; see also
United States v. Ofray-Campos, 534 F.3d 1, 43 (1st Cir. 2008) ("The
farther the judge's sentence departs from the guidelines
sentence . . . the more compelling the justification based on
factors in section 3553(a) that the judge must offer in order to
enable the court of appeals to assess the reasonableness of the
sentence imposed." (quoting United States v. Dean, 414 F.3d 725,
729 (7th Cir. 2005) (Posner, J.) (ellipses in original)).
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Here, the District Court imposed an upward variance of
eighteen months from the applicable GSR of a prison sentence of up
to thirty months. That is a significant deviation. So, the key
issue concerns the sufficiency of the District Court's explanation
for that variance, given its magnitude.
The District Court did express special concern that
Carrasquillo had bought a firearm "that had been modified to shoot
automatically" -- "[w]hat we call a machine gun" -- even though
"he admitted that there are no threats against him." The District
Court added "that machine guns [are] one of the most dangerous
weapons in terms of [their] firing capabilities."
It is clear, however, that the possession of the
machinegun alone could not justify such a variance. We have
plainly stated 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.'" United States v. RiveraSantiago, 919 F.3d 82, 85 (1st Cir. 2019) (quoting United States
v. Guzman-Fernandez, 824 F.3d 173, 177 (1st Cir. 2016)).
Carrasquillo's GSR had been calculated pursuant to U.S.S.G.
§ 2K2.1(a)(4) based in part on the finding that he possessed a
"semi-automatic weapon that is capable of accepting a large
capacity magazine or a firearm described in 26 [U.S.C.]
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§ 5845[(a)]." Thus, because the concerns that the District Court
highlighted about the dangers posed by machine guns and the
defendant's lack of need for such a weapon "are universal in their
application, and we have no reason to believe that they were not
factored into the mix when the Sentencing Commission set the base
offense level for the offense of conviction," Rivera-Berríos, 968
F.3d at 136, Carrasquillo's possession of a machinegun alone could
no more justify this variant sentence than it could justify the
one at issue in Rivera-Berríos.
After all, in that case, too, the district court
expressed the concerns that machineguns are "highly dangerous and
unusual," can fire over a thousand rounds per minute, and exist
largely "on the black market" as explanations for its variance.
Id. Yet, we held that those concerns about machineguns could not
supply the basis -- at least on their own -- for an upward variance
of the same magnitude as here and concluded for that reason that
the district court failed to explain why the defendant's machinegun
possession "was entitled to extra weight."1 Id.
1 The District Court did also consider Carrasquillo's
"history of substance abuse, specifically marijuana, which he has
used since age 17. That is, for the past five years." But,
insofar as the District Court viewed this personal characteristic
as an aggravating factor, it had already taken account of that
factor when it calculated Carrasquillo's GSR pursuant to U.S.S.G.
§ 2K2.1(a)(4) and 18 U.S.C. § 922(g)(3) based on Carrasquillo's
pleading guilty in part to being "an unlawful user of . . . any
controlled substance." And, the District Court nowhere explained
why that element was nevertheless entitled to extra weight.
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The government nonetheless contends that the District
Court adequately explained why this case falls outside of the
heartland of the applicable GSR because the District Court did not
rely solely on those expressions of concern about the dangers
associated with machineguns in explaining the variant sentence.
The government argues that the District Court also pointed to
community-based considerations of gun violence in Puerto Rico in
explaining why "the guidelines do not reflect accurately the
seriousness of the offense."
It is true that "[g]eographical considerations can be
relevant at sentencing, as 'the incidence of particular crimes in
the relevant community appropriately informs and contextualizes
the relevant need for deterrence.'" United States v. OrtizRodríguez, 789 F.3d 15, 19 (1st Cir. 2015) (quoting United States
v. Flores-Machicote, 706 F.3d 16, 23 (1st Cir. 2013)); see also
United States v. Rivera-González, 776 F.3d 45, 50-51 (1st Cir.
2015) (finding "the high incidence of violent crime in Puerto Rico"
to be an appropriate consideration at sentencing). In addition,
the District Court did not simply rely on the community-based
factors to the exclusion of any consideration of the individual
circumstances of this defendant. As the government rightly points
out, the District Court did attend to the various mitigating
factors that the defendant put forth -- among them, his age, place
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of residence, education, employment, medical history, and lack of
prior known arrests and convictions.
But, Carrasquillo pointed to those mitigating factors in
the course of arguing for a more lenient sentence than the one he
received -- and, indeed, a more lenient one than the one
recommended by the top end of the GSR itself -- as both he and the
government sought a sentence at the very bottom of the GSR of just
twenty-four months. There is no sense in which the District Court,
by considering those mitigating factors, was offering an
individualized basis for the upward variance that it imposed.
Thus, the critical question is whether the District
Court's reliance on the state of violence associated with
machineguns in Puerto Rico could support that upward variance,
even though the dangers posed by machineguns could not.
Carrasquillo argues that prior precedent precluded the District
Court from justifying the variance wholly on its observations about
the state of things in Puerto Rico, because the District Court
needed to anchor its consideration of Puerto Rico's high incidence
of gun violence as part of its § 3553(a) analysis "in individual
factors related to the offender and the offense," Rivera-González,
776 F.3d at 50, and failed to do so.
As we explained in Ortiz-Rodríguez, "'the section
3553(a) factors must be assessed in case-specific terms,' and a
sentencing court's 'appraisal of community-based considerations
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does not relieve its obligation to ground its sentencing
determination in individual factors related to the offender and
the offense.''" 789 F.3d at 19-20 (internal citations omitted;
first quoting Flores-Machicote, 706 F.3d at 23; and then quoting
Rivera-González, 776 F.3d at 50). Because we then found that the
district court had not grounded its community-based considerations
in "case-specific terms," despite its consideration of mitigating
factors, we concluded that the district court procedurally erred
in failing to explain adequately its upward variance by fifteen
months. Id. at 19.
Likewise, we held in Rivera-Berríos, 968 F.3d at 137,
that "[u]nmoored from any individual characteristics of either the
offender or the offense of conviction, . . . [the district court's
community-based concerns] cannot serve as building blocks for an
upward variance" and concluded that the district court there
procedurally erred because it "constructed no such mooring." Id.
And that was so, we made clear, because a "case-specific nexus"
was "totally lacking" between the community-based considerations
in Puerto Rico that had been invoked to support the upward variance
and the nature of the defendant's conduct beyond his possession of
a machinegun. Id. at 136.
Here, the District Court found that "the type of this
possession of weapons is what basically has the society in a state
of siege," and that "in Puerto Rico right now, [these types of
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weapons are] in the hands of individuals without licenses that are
being used . . . in public places in broad daylight." The District
Court elaborated on this explanation by giving nine examples of
particular instances of machinegun shootings in Puerto Rico during
the preceding months and by comparing Puerto Rico's crime rate
with that of large U.S. cities and countries in Central America,
South America, and the Caribbean. It then concluded: "I don't
think that the guidelines have a way to reflect the seriousness of
the possession of this type of weapon and the harm that is causing
in Puerto Rico society. . . . Therefore, the Court understands
that there's a need for a variant sentence."
The government contends that some of the specific
examples of machinegun shootings in Puerto Rico were anchored in
individual factors related to Carrasquillo and his offense. That
is so, it argues, because some of the examples, just like
Carrasquillo's offense, involved the possession of machineguns
during daylight hours in public, and sometimes specifically inside
vehicles on public roads.
The District Court was clear, however, that "the driving
force behind the upward variance," Rivera-Berríos, 968 F.3d at
135, was, in its own words, "the possession of this type of weapon"
itself. Thus, here, just as in Ortiz-Rodríguez and Rivera-Berríos,
the District Court considered the high incidence of gun violence
in Puerto Rico "unmoored from any individual characteristics of
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either the offender or the offense of conviction . . . [its
community-based concerns] cannot serve as building blocks for an
upward variance." Rivera-Berríos, 968 F.3d at 137.2
The government does also argue that certain facts
referenced by the Presentencing Report ("PSR"), namely that
Carrasquillo possessed an additional five magazines and 128 rounds
of ammunition at the time of his arrest, and that his cousin too
possessed additional magazines and ammunition in the same car,
should be used to supplement the District Court's explanation and
that these facts provides an additional basis on which we should
conclude that its explanation was adequate. But, while "a court's
reasoning can often be inferred by comparing what was argued by
the parties or contained in the pre-sentence report with what the
judge did," such inferences must be anchored in "what the judge
did." United States v. Jiménez–Beltre, 440 F.3d 514, 519 (1st
Cir. 2006) (en banc), abrogated on other grounds by Rita v. United
States, 551 U.S. 338 (2007). And here, nothing in the District
Court's summary of the facts and weighing of the sentencing factors
2 The government at one point suggests that we should
understand the District Court's community-based considerations as
a policy disagreement with the Guidelines, as permitted by
Kimbrough v. United States, 552 U.S. 85 (2007). But, the District
Court nowhere indicated that it was relying on those communitybased considerations for a purpose other than to "inform[] and
contextualize[] the relevant need for deterrence" as part of its
§ 3553(a) analysis. Ortiz-Rodríguez, 789 F.3d at 19 (quoting
Flores-Machicote, 706 F.3d at 23).
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indicates that it relied for its variant sentence on Carrasquillo's
additional magazines and ammunition.
Prior to imposing the forty-eight-month sentence, the
District Court only mentioned that Carrasquillo possessed a "large
magazine with capacity for 31 rounds." And its express reference
to the PSR was limited to the statements that it had examined the
PSR and that it had found the PSR's "guideline computation" to be
correct. It was only when enumerating the forfeiture conditions
after it had already imposed the sentence of imprisonment that the
District Court mentioned the additional magazines and rounds as
well. Nor did the government argue below to the District Court
that those additional magazines and rounds warranted a variant
sentence. Indeed, as we have noted, the government recommended a
low-end guideline sentence of twenty-four months.
Defendants are entitled to a "sufficiently
particularized [and] compelling" explanation when they are subject
to a significant upward variance. Ofray-Campos, 534 F.3d at 43.
Here, the District Court provided no such explanation because all
the factors on which it relied for its upward variance were either
already factored into Carrasquillo's GSR or not specific to his
case. Cf. United States v. Vázquez-Martínez, 812 F.3d 19, 24-25
(1st Cir. 2016) (finding no plain error because the district court
explained its upward variance based not only on "factors already
included in the Guidelines calculations," such as the defendant's
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"criminal history and drug addiction," but also on his "subsequent
probation revocation, his prior adult arrest, and the
circumstances surrounding his current offense," including that he
"kept his machinegun . . . in a residence he shared with three
minor children"). In failing to provide an adequate explanation,
the District Court clearly and obviously erred. And the resulting
upward variance affected Carrasquillo's substantial rights and
seriously impaired the fairness of the judicial proceedings. See
United States v. Rivera-Gonzales, 809 F.3d 706, 712 (finding that
imposition of an upward variance without adequate explanation
impairs "the fairness, integrity, or public reputation of the
judicial proceedings" (internal quotation marks omitted) (quoting
United States v. Perazza-Mercado, 553 F.3d 65, 79 (1st Cir.
2009))). We therefore conclude that the District Court committed
plain procedural error when sentencing Carrasquillo to forty-eight
months. Having thus concluded, we need not reach Carrasquillo's
claim of substantive error. See United States v. Miranda-Díaz,
942 F.3d 33, 39 (1st Cir. 2019).
We close, though, with a final observation. We recognize
that district courts must be given some leeway in not only
selecting a sentence but also explaining their reasons for having
selected it. That is especially so when, as here, no objection
has been made by the defendant to the district court that it has
failed to offer an adequate explanation.
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We recognize, too, both that there has been a mass of
appellate rulings from our circuit regarding sentencing
explanations and their requirements prior to the sentencing that
occurred here and that our decision in Rivera-Berríos postdated
not only that mass of rulings but also the sentencing in this very
case. The District Court thus did not have the benefit of the
decision of ours that is clearest in specifying what an explanation
for a variance must entail.
Nonetheless, we had decided Ortiz-Rodríguez prior to
this sentencing. And Rivera-Berríos, we think, now makes it
perfectly clear that we meant what we had previously said about
the obligation of district courts when varying upward to offer
explanations for the deviation that are commensurate in their depth
with the magnitude of that deviation. Thus, even if at the time
this sentence was handed down, the inadequacy of the explanation
was not clear or obvious error, it is clear and obvious that such
an explanation does not suffice under our extant precedent. For
that reason and for the reason that the federal sentencing regime
aims to "bring about greater fairness in sentencing through
increased uniformity," Rita, 551 U.S. at 354, resentencing is
required.
Outcome: For the foregoing reasons, we order Carrasquillo's
sentence to be vacated and remand for resentencing
Plaintiff's Experts:
Defendant's Experts:
Comments: