United States Court of Appeals For the First Circuit
UNITED STATES OF AMERICA,
APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF PUERTO RICO
[Hon. José Antonio Fusté, U.S. District Judge]
Barron, Hawkins*, and Lipez, Circuit Judges.
Francisco A. Besosa-Martínez, Assistant United States Attorney, with whom Rosa Emilia Rodriguez-Velez, United States Attorney, and Nelson Pérez-Sosa, Assistant United States Attorney, were on brief for appellee. José Ramon Olmo-Rodríguez, with whom Olmo & Rodríguez Matias was on brief for appellant.
January 8, 2016
*Of the Ninth Circuit, sitting by designation.
BARRON, Circuit Judge. The defendant in this appeal,
Osvaldo Rivera-Gonzalez ("Rivera"), brings a variety of challenges
to his federal sentence. Because we agree with one of these
challenges, we vacate and remand.
In September of 2013, the Puerto Rico Police Department
(the "PRPD"), while investigating two murders, obtained a search
warrant for the home of Rivera's grandmother. After discovering
marijuana, a firearm, and a few bullets, the PRPD arrested Rivera,
his brother, and his grandmother. Twelve hours later, Rivera,
without counsel, gave a statement to the PRPD in which Rivera
confessed to the two murders and an assault.
The PRPD turned Rivera over to federal custody. A
federal grand jury then returned a four-count indictment against
him. The indictment charged Rivera with one count each of:
conspiracy to distribute a controlled substance, 21 U.S.C. §§
841(a)(1), 846, possession with intent to distribute a controlled
substance, id. § 841(a)(1), possession of a firearm by a prohibited
person, 18 U.S.C. § 922(g)(3), and aiding and abetting possession
of a firearm in furtherance of a drug crime, id. §§ 2, 924(c).
Later, Rivera was also charged in Puerto Rico court
with crimes directly related to the murders and assault.
Rivera worked out a plea deal with the federal
government, by which he pled guilty to two of the federal
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indictment's four counts: conspiracy to distribute a controlled
substance, 21 U.S.C. §§ 841(a)(1), 846, and aiding and abetting
possession of a firearm in furtherance of a drug crime, 18 U.S.C.
§§ 2, 924(c). The plea agreement did not mention the murders or
In the plea agreement, the government and defense
counsel agreed to recommend a prison sentence within a United
States Sentencing Guidelines ("U.S.S.G.") range of 0-12 months'
imprisonment for the conspiracy conviction.1 The parties also
agreed to recommend a prison sentence of 60 months -- the statutory
minimum -- for the § 924(c) conviction. The parties further
agreed to recommend that the latter sentence run consecutively to
the sentence for the conspiracy conviction, for a total sentence
of 60-72 months' imprisonment.
After Rivera pled guilty, the probation office filed a
presentence investigation report ("PSR"). The PSR detailed
Rivera's confession to the two murders and assault. The PSR, like
the plea agreement, calculated a guidelines sentence of 60 months,
the statutory minimum, for the § 924(c) charge. However, in
calculating the base offense level for the sentence for the
conspiracy conviction, the PSR included a cross reference to the
1 This recommendation was premised on a base offense level of 6, with a 2-point deduction for acceptance of responsibility, for a total offense level of 4. It varied based on the applicable criminal history category, which was not agreed on.
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sentencing guidelines for murder convictions.2 Based on that
cross-reference, the PSR identified Rivera's total offense level
as 40, resulting in a guidelines sentencing range of 292-365
months' imprisonment for the conspiracy conviction, although 60
months was the statutory maximum.
Rivera objected to the PSR on the grounds that there was
insufficient evidence that the murders were related to the
conspiracy charged and that the proof of the murders was
insufficient to find that Rivera had committed them by a
preponderance of the evidence. The defendant made no other
objection to the PSR.
At the sentencing hearing, the government, in accordance
with the plea agreement, recommended a total sentence of 60-66
months' imprisonment for both convictions. The government
recommended the total sentence be imposed as follows: 60 months
for the § 924(c) conviction and 0 to 6 months for the conspiracy
With respect to the conspiracy conviction, the District
Court agreed not to rely on the cross reference to the sentencing
guidelines for murder convictions in calculating Rivera's
guidelines sentencing range. The District Court imposed a sentence
of 6 months in prison for the conspiracy conviction. With respect
2 In doing so, the PSR referenced U.S.S.G. § 1A1.1, although it presumably intended to refer to U.S.S.G. §§ 2A1.1, 2D1.1(d).
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to the § 924(c) conviction, the District Court imposed a sentence
of 360 months' imprisonment. In doing so, the District Court
explained that it was using the 18 U.S.C. § 3553(a) factors to
select a sentence within the range of statutorily permissible
sentences, which spanned from 60 months to life in prison.
There was discussion at the sentencing hearing about
whether a prison sentence above 60 months -- and thus above the
mandatory minimum sentence under 18 U.S.C. § 924(c) -- would
constitute a departure, rather than a variance. Defense counsel
argued that a departure would require that the defendant receive
notice of that departure prior to sentencing. See Fed. R. Crim.
P. 32(h). The District Court determined, however, that a prison
sentence greater than 60 months for the § 924(c) violation would
be a variance, rather than a departure, and thus would not trigger
a prior notice requirement.
The District Court then imposed a 360-month sentence for
the § 924(c) conviction, with the 6-month prison sentence for the
conspiracy conviction to run consecutively. Thus, the District
Court imposed a total sentence of 366 months of imprisonment.
At sentencing, there was also discussion of whether the
federal sentence should be consecutive or concurrent with any
Puerto Rico sentence. Thus, the District Court was aware at
sentencing that charges were pending against the defendant in
Puerto Rico court on the related crimes of murder and assault.
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The District Court stated in imposing the federal sentence that
the 360-month prison sentence for the § 924(c) conviction would
run concurrently with any sentence that the Puerto Rico court might
impose, following any convictions of Rivera on the Puerto Rico
charges then pending. The District Court also stated that the
six-month sentence for the conspiracy conviction would run
consecutively to any other sentence.
In response, defense counsel argued that § 924(c)
prohibits district courts from imposing a sentence for that crime
that runs concurrently with any other sentence. The District Court
stated that § 924(c) only required the federal sentences for the
conspiracy and § 924(c) convictions to run consecutively and that
it "would be totally unfair" for the federal and Puerto Rico
sentences to run consecutively as well.
In stating that the federal sentence would run
concurrently to any Puerto Rico sentence, the District Court
explained that "I don't think that I should make it fully
consecutive. I don't think I should do that." He then said that
"BOP will not dare to calculate anything else than I have said."
And the Court added, "if the Bureau of Prisons wants to do what
they want to do, you let me know."
Following the District Court's statement about whether
the federal and Puerto Rico sentences would run concurrently or
consecutively, defense counsel again asked the District Court how
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the federal sentence would interact with any sentence the Puerto
Rico court might impose on the charges pending in Puerto Rico
court. The District Court clarified that if the Puerto Rico judge
sentenced Rivera to 40 years for the crimes pending against him in
Puerto Rico court, he would serve the 360-month federal prison
sentence that the District Court imposed for the § 924(c)
conviction, and then only 10 additional years of the 40-year Puerto
Rico sentence. The District Court then clarified that Rivera would
serve the six-month prison sentence for the conspiracy conviction
in addition to the forty years.
After sentencing, both defense counsel and the
government filed "informative motions" with the District Court.
The parties informed the Court that, under United States v.
Gonzalez, 520 U.S. 1 , 11 (1997), a § 924(c) sentence cannot be
imposed to run concurrently with any other sentence. The District
Court then accepted defense counsel's suggestion that the written
judgment remain silent on the concurrent or consecutive issue.
The written judgment thus made no reference to how the federal
sentence would run in relation to any sentence Puerto Rico might
impose for the charges then pending against Rivera in Puerto Rico
After the District Court imposed the federal sentence,
Rivera pled guilty in Puerto Rico court and was sentenced by the
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Puerto Rico court to 104 years, 6 months, and 1 day in prison.3
The Puerto Rico judgment made no reference to the federal judgment.
Because the District Court had primary jurisdiction, Rivera will
begin his sentence in federal custody.
Rivera now appeals his federal sentence on three
grounds. He first contends that his sentence is procedurally
unreasonable because the District Court did not comply with the
notice requirement that he contends Federal Rule of Criminal
Procedure 32(h) imposes. He next contends that his sentence is
procedurally unreasonable because it conflicts with Gonzalez.
Rivera's final challenge is that the length of his sentence renders
it substantively unreasonable.
"Generally, we apply the deferential abuse of discretion
standard in evaluating the reasonableness of a sentence." United
States v. Pantojas-Cruz, 800 F.3d 54 , 58 (1st Cir. 2015) (citing
Gall v. United States, 552 U.S. 38 , 51 (2007)). The parties
disagree over whether Rivera's objections to the reasonableness of
his federal sentence are preserved, and thus the parties disagree
over what standard of review applies to Rivera's challenges.4
3 When asked at oral argument what the practical impact of this appeal would be, defense counsel explained that there is a chance Rivera will not be required to serve out the entirety of his Puerto Rico sentence. 4 The government argues that we should treat Rivera's challenge to the reasonableness of his sentence as waived. This
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However, even under the less deferential abuse of discretion
standard that Rivera urges us to apply, his first two challenges
fail. We thus assume that the abuse of discretion standard of
review applies in our evaluation of those challenges.
As an initial matter, Rivera argues that the sentence
was procedurally unreasonable because the variant sentence for the
§ 924(c) conviction was actually a "departure" and thus required
prior notice under Federal Rule of Criminal Procedure 32(h). This
argument hinges on a contention that, with respect to § 924(c),
the sentencing guidelines make any sentence over the mandatory
minimum a "departure" rather than a "variance." But that
contention is contrary to our case law, and so this challenge is
easily dismissed, as there was only a variance here. Thus, there
was no abuse of discretion by the District Court in so concluding.
See United States v. Oquendo-Garcia, 783 F.3d 54 , 56 (1st Cir.
2015) ("We will treat a sentence above a statutory mandatory
minimum under section 924(c) as an upward variance, absent some
is because Rivera's "informative motion" to the District Court did suggest precisely the course the Court followed -- namely, to make no reference to any Puerto Rico sentence. However, we read Rivera's motion to have been intended to ensure that the judgment not state that the federal and Puerto Rico sentences must run consecutively, presumably in order to avoid the suggestion that the Puerto Rico court could not take account of the federal sentence in imposing its own. We therefore reject the government's argument that by virtue of the informative motion he filed, Rivera waived the challenges to his federal sentence that he raises in this appeal.
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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)); United States v. Rivera-González, 776 F.3d 45 , 49 (1st
Cir. 2015) ("We hold, therefore, that since a mandatory minimum
sentence under section 924(c) is the recommended guideline
sentence, a reviewing court should treat any sentence above that
statutory mandatory minimum as an upward variance.").
Rivera next argues that the sentence was procedurally
unreasonable in light of Gonzalez, as that case requires that
§ 924(c) sentences be imposed to run consecutively to, rather than
concurrently with, any other sentences, whether imposed by the
federal government or by Puerto Rico. 520 U.S. at 11. But this
challenge fails as well. The District Court did make oral
statements indicating that it was imposing a concurrent sentence.
But the District Court, in response to the objections set forth in
the motions filed by both the defense and the government, did not
impose a concurrent sentence in the written judgment setting forth
the sentence. The written judgment was simply silent as to whether
the sentence would run concurrently or consecutively, just as
Rivera had requested in his motion. Thus, the sentence set forth
in the written judgment does not conflict with Gonzalez, and the
District Court committed no abuse of discretion in this regard.
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That leaves Rivera's final argument. Rivera casts this
challenge as if it targets the substantive reasonableness of his
federal sentence due to its length. But at its core, Rivera
challenges the District Court's failure to provide an adequate
explanation for a sentence that varies upward from the guidelines
sentencing range to this extent.
We thus construe this objection to be a procedural one.
See United States v. Reyes-Santiago, 804 F.3d 453 , 468 n.19 (1st
Cir. 2015) ("The line between procedural and substantive
sentencing issues is often blurred . . . [and] 'the lack of an
adequate explanation can be characterized as either a procedural
error or a challenge to the substantive reasonableness of the
sentence.'") (quoting United States v. Crespo–Ríos, 787 F.3d 34 ,
37 n.3 (1st Cir. 2015) (internal quotation marks and brackets
omitted)). And, so understood, we conclude that this challenge
has merit, even under the more demanding plain error standard that
the government urges us to apply.
"Review for plain error entails four showings: (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." Pantojas-Cruz, 800 F.3d at 58 (quoting
United States v. Medina–Villegas, 700 F.3d 580 , 583 (1st Cir.
2012)). Each prong is met here.
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The District Court correctly calculated the guidelines
sentence for the § 924(c) conviction: 60 months. See Rivera-
González, 776 F.3d at 49. The District Court then imposed a
360-month prison sentence for that conviction. That sentence
represented a dramatic -- 25-year -- upwards variance from the
guidelines sentence. The District Court did not, however,
adequately explain the basis for that variance.
District courts have the discretion to impose variant
sentences. United States v. Politano, 522 F.3d 69 , 73 (1st Cir.
2008). But appellate courts still must inquire into "whether the
district court provided a sufficient explanation for its
variance." Id. That is particularly true for variant sentences
as substantial as this one. See Crespo–Ríos, 787 F.3d at 39. And
"[w]hen faced with an inadequate explanation, 'it is incumbent
upon us to vacate, though not necessarily to reverse, the decision
below to provide the district court an opportunity to explain its
reasoning at resentencing.'" Id. at 38 (quoting United States v.
Gilman, 478 F.3d 440 , 446–47 (1st Cir. 2007)) (brackets omitted).
In this case, the District Court stated that if the
federal and Puerto Rico sentences were to run consecutively, "it
would be totally unfair." Yet after being apprised that the 360-
month prison sentence could not be required to run concurrently
with the Puerto Rico sentence, the District Court issued a written
sentence of that same length, that -- quite rightly -- did not
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foreclose the possibility that it might be followed by a Puerto
Rico sentence that would have to be served in full following the
completion of Rivera's federal sentence.
In doing so, the District Court offered no explanation
as to why a sentence of 360 months' imprisonment was justified.
The explanation for a sentence may, in some cases, be inferred
from the record. See United States v. Perazza-Mercado, 553 F.3d
65 , 75 (1st Cir. 2009). And there is no question that the
defendant's underlying criminal conduct was significant. Yet
here, we have a sentence that varies greatly and that not only
lacks an express explanation for the variance, but also was imposed
after the District Court appeared to question the fairness of just
such a sentence. In such circumstance, we cannot say that the
District Court has offered an adequate explanation for the sentence
The imposition of such an unexplained variant sentence
is obvious error. See Perazza-Mercado, 553 F.3d at 78. There is
also "a reasonable probability that the court might not have
imposed the [variance] if it had fulfilled its obligation to
explain the basis for the [variance]," id. (citing United States
v. Wallace, 461 F.3d 15 , 44 (1st Cir. 2006) (noting that if the
sentencing court were required to supply an adequate explanation
for its actions, it "might (although by no means must) calculate
a sentence upon remand different than the precise sentence it chose
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through its initial, erroneous . . . analysis")), given that the
District Court's only comment on the possibility of the Puerto
Rico sentence running consecutively was that a federal sentence of
360 months' imprisonment would then be "unfair." Nor can we
"endorse the summary imposition of such a significant prohibition
without impairing the 'fairness, integrity, or public reputation
of the judicial proceedings.'" Id. at 79 (quoting Wallace, 461
F.3d at 44). We thus agree with Rivera's challenge to the
For the foregoing reasons, we vacate Rivera's sentence
and remand for the District Court to explain its reasoning at
resentencing, expressing no opinion "as to what the sentence should
be." Crespo–Ríos, 787 F.3d at 35.
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