United States v. Díaz-Lugo

963 F.3d 145

UNITED STATES of America, Appellee,

v.Alexis O. DÍAZ-LUGO, Defendant, Appellant.

No. 19-1284

United States Court of Appeals, First Circuit.

June 24, 2020

José Agustin Arce-Díaz, San Juan, PR, on brief for appellant.

W. Stephen Muldrow, United States Attorney, Mariana E. Bauzá-Almonte, Assistant United States Attorney, Chief, Appellate Division, and Julia M. Meconiates, Assistant United States Attorney, on brief for appellee.

Before Howard, Chief Judge, Selya and Kayatta, Circuit Judges.

SELYA, Circuit Judge.

Defendant-appellant Alexis O. Díaz-Lugo complains that he cooperated fulsomely with federal authorities after the time of his arrest, yet his cooperation was given no tangible recognition by the sentencing court. He also complains about a number of other alleged sentencing errors.

Because all of the appellant's claims run headlong into impassible roadblocks, we affirm his upwardly variant sixty-month sentence.

I. BACKGROUND

We start by sketching the facts and the travel of the case. In November of 2017, Puerto Rico police officers, conducting a carjacking investigation, stopped a motor vehicle in which the appellant and two other men were riding. In the car, the officers found two firearms that were altered to fire automatically and four high-capacity (extended) magazines.

The appellant was no stranger to law enforcement. Approximately five years earlier, he had pleaded guilty in a local court to illegal appropriation of a vehicle and had been sentenced under a diversionary program. Placed on probation, he lost little time in violating the conditions of his release by absconding from supervision in March of 2013. That same year, he was charged federally with being a felon in possession of a firearm. see 18 U.S.C. § 922(g)(1). He pleaded guilty to the federal charge, and the district court sentenced him to a twenty-seven-month term of immurement, followed by three years of supervised release.

Once he served his federal prison sentence, he was remitted to the custody of the Puerto Rico authorities to face an abscondment-from-probation charge. He served time for that probation violation and, following his release from local custody, the district court sentenced him to serve an additional ten months in prison for a supervised release violation. At the same time, the court imposed an additional two-year term of supervised release. The appellant began serving this new term of supervised release in August of 2017 (approximately three months before he was arrested in the course of the carjacking investigation).

On December 7, 2017, a federal grand jury sitting in the District of Puerto Rico returned an indictment naming the appellant and two codefendants. As relevant here, the grand jury charged the appellant with being a prohibited person (specifically, a previously convicted felon) in possession of firearms and ammunition, see id., and being in possession of a machine gun, see id. § 922(o)(1). The appellant initially maintained his innocence but — after informing the court that he was considering cooperating — he indicated a desire to change his plea. His case was then transferred to the judge who was considering the probation office's motion to revoke his existing term of supervised release. He proceeded to enter a straight guilty plea to both counts of the indictment.

Once the appellant had pleaded guilty, the probation office prepared a presentence investigation report (the PSI Report), which made a series of recommended calculations and suggested a guideline sentencing range (GSR) of thirty to thirty-seven months. Neither side objected to the proposed GSR. At the disposition hearing, the appellant sought a twenty-four-month sentence, and the government advocated a thirty-month sentence. The sentencing court spurned both recommendations and sentenced the appellant to serve a sixty-month term of immurement on each count, concurrent with each other, but consecutive to any sentence to be imposed for revocation of the appellant's existing term of supervised release. This timely appeal followed.

II. ANALYSIS

In this venue, the appellant does not challenge the sentencing court's guideline calculations but, even so, attacks his sentence as both procedurally flawed and substantively unreasonable. Appellate review of claims of sentencing error "involves a two-step pavane." United States v. Miranda-Díaz, 942 F.3d 33, 39 (1st Cir. 2019). Under this bifurcated approach, we first examine any claims of procedural error. see United States v. Matos-de-Jesús, 856 F.3d 174, 177 (1st Cir. 2017). If the challenged sentence passes procedural muster, we then proceed to examine any claim of substantive unreasonableness. see United States v. Ruiz-Huertas, 792 F.3d 223, 226 (1st Cir. 2015).

At both steps of this pavane, our review of preserved claims of error is for abuse of discretion. see Gall v. United States, 552 U.S. 38, 46, 128 S.Ct. 586, 169 L.Ed.2d 445 (2007) ; United States v. Flores-Machicote, 706 F.3d 16, 20 (1st Cir. 2013). For simplicity's sake, we assume — favorably to the appellant — that his various claims of error are preserved. The abuse-of-discretion standard is multifaceted. When that standard obtains, we review the district court's factual findings for clear error and examine its answers to questions of law (including questions involving the "interpretation and application of the sentencing guidelines") de novo. see United States v. Ilarraza, 963 F.3d 1, 8, (1st Cir. 2020) ; Flores-Machicote, 706 F.3d at 20.

With this brief preface, we turn first to the appellant's fleet of procedural claims. Once that fleet has sailed, we appraise his claim that his sentence is not substantively reasonable.

A. Claims of Procedural Error .

1. Cooperation . The flagship of the appellant's fleet of procedural claims is his claim that the sentencing court failed to appreciate its discretion to consider his cooperation with the government and impose a downwardly variant sentence on that ground. He argues that such discretion exists under 18 U.S.C. § 3553(a) notwithstanding the government's decision not to file a motion for a "substantial assistance" departure under USSG § 5K1.1. In the appellant's view, his participation in three proffer sessions, during which he gave what he labels as "valuable truthful information" to the government, demonstrated "a reduced likelihood of recidivism" and was "a beneficial part of his ... history and character."

We agree with the appellant's premise: a sentencing court ordinarily has discretion to consider a defendant's cooperation with the government as a mitigating factor. see United States v. Landrón-Class, 696 F.3d 62, 77 (1st Cir. 2012). In an appropriate case, such cooperation may persuade the sentencing court to impose a downwardly variant sentence. see United States v. Jiménez, 946 F.3d 8, 16 (1st Cir. 2019) ("Our precedent is clear that sentencing courts are permitted to hand down shorter sentences to those who cooperate and show remorse."). This praxis is consistent with our interpretation of 18 U.S.C. § 3553(a)(1) as broadly instructing sentencing courts to consider a defendant's history and characteristics, which (as we have said) "includes the history of ... cooperation and characteristics evidenced by cooperation." Landrón-Class, 696 F.3d at 77 (quoting United States v. Fernandez, 443 F.3d 19, 33 (2d Cir. 2006) ). The fact that the government abstains from moving for a section 5K1.1 departure based on substantial assistance in investigating or prosecuting another does not divest the sentencing court of its statutory discretion to consider a defendant's cooperation and impose a downwardly variant sentence predicated on such cooperation. see id.

Although we agree with the appellant's premise, we disagree with his conclusion that the court below was unaware of its discretion to consider cooperation as a relevant factor in the section 3553(a) sentencing calculus. Nothing in the record so much as hints that the court thought that its sentencing calculus under 18 U.S.C. § 3553(a) was constrained by the government's decision to eschew a downward-departure motion under USSG § 5K1.1. The appellant's contrary suggestion is woven out of whole cloth.

The record makes manifest that the appellant's cooperation was a live issue at sentencing. During the disposition hearing, the government forthrightly explained that the appellant sat for several proffer sessions, answered the government's questions, and was willing to cooperate generally. The government went on to state, though, that because the information furnished "was not actionable," it believed that a substantial assistance departure was not justified. In the course of this discussion, the government never suggested that the appellant's cooperation should not be weighed in the balance when the court determined whether to impose a sentence below, within, or above the GSR. Instead, the government took the position that fairness demanded that the court "be made aware of [the appellant's] willingness to cooperate."

For his part, the appellant's counsel called the court's attention to his sentencing memorandum, which lauded the appellant's cooperation with the government. Counsel urged the court to consider this cooperation in imposing sentence. Discounting the government's description of the fruits of the cooperation, counsel declared that the appellant had supplied "very valuable information." The government interposed no objection either to this line of argument or, more generally, to the sentencing court's consideration of the appellant's cooperation. Where, as here, a sentencing court entertains proffered facts and arguments at the disposition hearing without giving any indication that it will refuse to consider those facts and arguments in constructing its sentencing calculus, there is usually no reason to think that the court failed to consider those facts and arguments in fashioning the sentence. see Landrón-Class, 696 F.3d at 78...