United States v. Colon-de Jesus

2016 | Cited 0 times | First Circuit | July 29, 2016

United States Court of Appeals For the First Circuit

No. 15-1962





Defendant, Appellant.


[Hon. Aida M. Delgado-Colón, U.S. District Judge]


Lynch, Selya and Barron, Circuit Judges.

Arza Feldman and Feldman and Feldman on brief for appellant. Leslie R. Caldwell, Assistant Attorney General, Sung-Hee Suh, Deputy Assistant Attorney General, Richard A. Friedman, Appellate Section, Criminal Division, United States Department of Justice, Rosa E. Rodríguez-Vélez, United States Attorney, and Nelson Pérez Sosa, Assistant United States Attorney, on brief for appellee.

July 29, 2016

SELYA, Circuit Judge. Defendant-appellant José Colón de

Jesús challenges both the substantive reasonableness of his

upwardly variant sentence and a financial disclosure condition

incident to his supervised release term.1 After careful

consideration, we summarily affirm.


Because this appeal follows a guilty plea, we draw the

facts from the non-binding plea agreement (the Agreement), the

undisputed portions of the presentence investigation report (the

PSI Report), and the transcript of the disposition hearing. See

United States v. Bermúdez-Meléndez, ___ F.3d ___, ___ (1st Cir.

2016) [No. 14-2209, slip op. at 1]. On July 28, 2013, Puerto Rico

police officers observed an individual, later identified as the

appellant, riding a horse toward them at high speed, with a firearm

in his waistband. After he fell from his steed, the officers took

him into custody and confiscated the firearm, which proved to be

loaded with 16 rounds of ammunition. Upon a search incident to

his arrest, the officers discovered two additional 15-round

magazines (fully loaded). Moreover, the appellant acknowledged

that the seized firearm had been modified to fire automatically as

a machinegun.

1 The spelling of the appellant's name is inconsistent throughout relevant documents. For simplicity's sake, we have settled on a single spelling.

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In due season, a federal grand jury returned a two-count

indictment. Count 1 charged the appellant with knowingly

possessing a firearm and ammunition after having been convicted of

a felony. See 18 U.S.C. §§ 922(g)(1), 924(a)(2). Count 2 charged

the appellant with knowingly possessing a machinegun. See id.

§ 922(o)(1). After initially maintaining his innocence, the

appellant entered into the Agreement and tendered a guilty plea to

count 1.

Pertinently, the Agreement memorialized the parties'

joint recommendation that the appellant should be sentenced near

the middle of the applicable guideline sentencing range (GSR).

The district court subsequently accepted the appellant's plea to

count 1.2

At sentencing, the court — without objection — adopted

the calculations adumbrated in the PSI Report, which resulted in

a GSR of 30-37 months (based on a total offense level of 17 and a

criminal history category of III). Despite the parties' joint

recommendation for a mid-range guideline sentence, the court

varied upward and imposed a 60-month term of immurement, to be

followed by a three-year term of supervised release. This timely

appeal followed.

2 Pursuant to the Agreement, the district court later dismissed count 2.

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In this venue, the appellant advances two assignments of

error. First, he asserts that his 60-month incarcerative sentence,

though only one-half the statutory maximum sentence, see id.

§ 924(a)(2), is substantively unreasonable. Second, he asserts

that the district court erred in attaching a financial disclosure

condition to his supervised release term. We discuss each

assignment of error in turn.

A. The Length of the Sentence.

The appellant challenges his sentence as substantively

unreasonable, suggesting that the mid-range guideline sentence

limned in the Agreement would have been sufficient. Because the

appellant voiced this objection at the disposition hearing, our

review is for abuse of discretion. See Gall v. United States, 552

U.S. 38 , 51 (2007).

When mulling a challenge to the substantive

reasonableness of a sentence, considerable deference is due to the

district court's judgment. See id.; United States v. Clogston,

662 F.3d 588 , 593 (1st Cir. 2011). This respectful approach

recognizes that even though "[a] sentencing court is under a

mandate to consider a myriad of relevant factors, . . . the

weighting of those factors is largely within the court's informed

discretion." Clogston, 662 F.3d at 593. It follows that even

where — as in this case — the district court imposes a variant

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sentence, a reviewing court must afford "due deference to the

district court's decision that the § 3553(a) factors, on a whole,

justify the extent of the variance." Gall, 552 U.S. at 51.

Reasonableness is itself "a protean concept." United

States v. Martin, 520 F.3d 87 , 92 (1st Cir. 2008). In the last

analysis, a sentence will withstand a challenge to its substantive

reasonableness as long as it rests on "a plausible sentencing

rationale" and reflects "a defensible result." Id. at 96.

Applying this yardstick, we will vacate the sentence "if — and

only if — the sentencing court's ultimate determination falls

outside the expansive boundaries of [the] universe" of reasonable

sentences. Id. at 92.

Here, the district court articulated a plausible

sentencing rationale. It took pains to note its consideration of

the factors made relevant by 18 U.S.C. § 3553(a) and commented

upon specific factors that applied to the appellant's situation.

The court also considered the appellant's prior criminal history

(which was significant and included convictions for similar

offenses). Describing that history, the court concluded that the

appellant "knew clearly the consequences [of weapons violations]

and still . . . didn't learn the lesson."

After conducting this assessment, the court explicitly

determined that the guideline range did not "fully reflect the

seriousness of the offense, the risk and harm to society, nor what

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has happened here." Stressing the need for deterrence, the court

concluded that an appropriate sentence demanded an upward


The resultant sentence surpassed the top of the GSR by

23 months. Such a sentence is admittedly stern. But a stern

sentence may still fall within the universe of reasonable

sentences, though we have recognized that the greater the extent

of a variance, "the more compelling the sentencing court's

justification must be." United States v. Del Valle-Rodríguez, 761

F.3d 171 , 177 (1st Cir. 2014).

Here, the district court adequately justified the

sentence. As the court noted, there were aggravating factors,

including the appellant's recidivism, the especially menacing

nature of the firearm in question (which to the appellant's

knowledge had been deliberately modified to function as a

machinegun), and the extra magazines that the appellant carried.

Equally as important, the court tied the upward variance to

specific section 3553(a) factors. See United States v. Díaz-

Arroyo, 797 F.3d 125 , 130 (1st Cir. 2015); United States v.

Scherrer, 444 F.3d 91 , 92-93 (1st Cir. 2006) (en banc). On

balance, we think that the court's sentencing rationale is

plausible, that the end result (a 60-month sentence) is defensible,

and that, therefore, the sentence is within the broad compass of

the court's discretion.

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In an effort to blunt the force of this reasoning, the

appellant argues that the district court abused its discretion in

lending societal factors, such as the crime rate in Puerto Rico,

undue weight in the sentencing calculus. This argument cannot

carry the day: "[w]e have squarely held that a district court may

consider community-based and geographic factors in formulating its

sentence." Bermúdez-Meléndez, ___ F.3d at ___ [No. 14-2209, slip

op. at 4]. Because community-based considerations, such as the

local crime rate, "are inextricably intertwined with deterrence,"

it was not an abuse of discretion for the district court to use

the Puerto Rican crime rate as one of several integers in the

sentencing calculus. United States v. Flores-Machicote, 706 F.3d

16 , 23 (1st Cir. 2013).

So, too, the appellant's emphasis on the parties' joint

sentencing recommendation (which the district court spurned) is

misplaced. When faced with a challenge to the substantive

reasonableness of a sentence, a reviewing court must focus its

inquiry on the sentence actually imposed, not on the relative merit

of that sentence as contrasted with a different sentence mutually

agreed to by the parties. Cf. Bermúdez-Meléndez, ___ F.3d at ___

[No. 14-2209, slip op. at 3] ("Although a sentencing court

typically has a duty to explain why it selected a particular

sentence, it has 'no corollary duty to explain why it eschewed

other suggested sentences.'" (quoting United States v. Vega-

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Salgado, 769 F.3d 100 , 104 (1st Cir. 2014))). Consequently, we

have no need to ponder the desirability vel non of the sentence

recommended by the parties but eschewed by the sentencing court.3

To sum up, a sentencing court has wide discretion in how

it chooses to weigh the section 3553(a) factors in any given case.

See United States v. Zapata-Vázquez, 778 F.3d 21 , 24 (1st Cir.

2015). "[T]here is no stringent mathematical formula that cabins

the exercise of the sentencing court's discretion." Martin, 520

F.3d at 91-92. Those principles control here: though the upward

variance imposed by the district court is significant, it does

not, on this record, warrant a finding that the sentence is

substantively unreasonable. See, e.g., United States v. Rivera-

González, 776 F.3d 45 , 52 (1st Cir. 2015); Flores-Machicote, 706

F.3d at 25.

B. Supervised Release.

Next, the appellant challenges a financial disclosure

condition that the district court imposed as a special condition

ancillary to his supervised release term. Since he did not

contemporaneously object to the imposition of this condition, our

review is for plain error. See United States v. Garrasteguy, 559

F.3d 34 , 40 (1st Cir. 2009). Under this rigorous standard, an

3 In all events, the district court — although it had no duty to do so — provided a reasoned explanation as to why the sentence recommended by the parties did not adequately respond to the nature and circumstances of the offense of conviction.

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appellant must demonstrate "(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." United States v. Duarte, 246 F.3d 56 , 60 (1st Cir.


The challenged condition obligates the appellant, during

his supervised release term, to "provide the Probation Officer

access to any financial information upon request." This financial

disclosure condition is not a standard condition of supervised

release. See 18 U.S.C. §§ 3583(d), 3563(b). Yet, "[a] sentencing

court is authorized to impose any condition of supervised release

that is reasonably related to one or more of the permissible goals

of sentencing." United States v. Mercado, 777 F.3d 532 , 537 (1st

Cir. 2015). That compendium of goals includes "deterrence,

rehabilitation, and protection of the public." Id. By the same

token, a condition of supervised release may be related to the

offender's educational or vocational progress. See United States

v. Prochner, 417 F.3d 54 , 63 (1st Cir. 2005); United States v.

York, 357 F.3d 14 , 20 (1st Cir. 2004). But there are limits: a

special condition of supervised release must be reasonably related

to the factors enumerated in 18 U.S.C. § 3553(a) and must not

deprive the offender of a greater degree of liberty than is

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reasonably required. See 18 U.S.C. § 3583(d); see also

Garrasteguy, 559 F.3d at 41.

We find no plain error in the district court's imposition

of the financial disclosure condition attached to the appellant's

supervised release term.4 While the district court did not

articulate its rationale for imposing the special condition — most

likely a consequence of the lack of any contemporaneous objection

— an unexplained condition of supervised release may be upheld as

long as the basis for the condition can be inferred from the

record. See Garrasteguy, 559 F.3d at 42.

Here, the court's reasoning can be gleaned from the

materials before the sentencing court and the context of the

proceedings. The supervised release order specifically required

the appellant to "support his . . . dependents" and "work regularly

at a lawful occupation." The financial disclosure condition

complements these conditions: it allows the probation officer to

monitor the money the appellant is earning and spending, which

aids the probation officer in keeping tabs on the appellant's

rehabilitation (including his compliance with his support and

employment obligations). So viewed, the condition is reasonably

4 We note that the appellant has not explained how — if at all — compliance with the financial disclosure condition would be unduly burdensome. Should any complications arise in practice, the appellant can at that time seek relief in the district court. See 18 U.S.C. § 3583(e)(2); see also Mercado, 777 F.3d at 539.

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related to the legitimate objectives of supervised release and,

thus, the legitimate objectives of sentencing. See United States

v. Smith, 436 F.3d 307 , 311-12 (1st Cir. 2006); United States v.

Mansur-Ramos, 348 F.3d 29 , 33 (1st Cir. 2003).

The appellant demurs. His rejoinder begins with the

unassailable premise that his financial information is irrelevant

to the offense of conviction itself. He then restates the obvious:

he was neither fined nor ordered to pay restitution. Finally, he

submits that the condition had no relevance to him because the PSI

Report indicated that he had no assets. These circumstances, he

says, coalesce to render the financial disclosure condition

unreasonable. We think not.

A special condition of supervised release may be imposed

even if it is unrelated, or only tangentially related, to the

offense of conviction. See York, 357 F.3d at 20; Mansur-Ramos,

348 F.3d at 33. Nor is there any precedent for the proposition

that a financial disclosure condition can only be imposed in a

case in which the sentence includes a financial component (such as

a fine or an order for restitution). Cf. United States v.

Meléndez-Santana, 353 F.3d 93 , 107 (1st Cir. 2003) (upholding

financial disclosure condition notwithstanding absence of fine or

restitution order). We see no justification for any such ironclad

rule, and we therefore hold that a financial disclosure condition

sometimes may be attached to a supervised release term even when

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the offender's sentence does not itself include a financial

component (such as a fine or an order for restitution). This is

such a case.

We add, moreover, that the fact that the appellant may

have been impecunious at the time of sentencing does not alter the

equation. After all, the standard conditions of his supervised

release (set forth above) require him, once he starts serving his

supervised release term, to support his dependents and work

regularly at gainful employment. Presumably, then, he will have

some earnings at that time.

That ends this aspect of the matter. Because the

appellant has not shown that the financial disclosure condition is

unrelated to permissible sentencing goals, he has failed to show

that the district court plainly erred in attaching the condition

to his supervised release term. See Mansur-Ramos, 348 F.3d at 33.


We need go no further. For the reasons elucidated above,

the judgment of the district court is summarily

Affirmed. See 1st Cir. R. 27.0(c)

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