United States v. Gallardo-Ortiz

666 F.3d 808

UNITED STATES of America, Appellee,

v.Jorge Luis GALLARDO–ORTIZ, a/k/a Legend, Defendant, Appellant.

No. 08–2292.

United States Court of Appeals, First Circuit.

Heard June 8, 2010.Decided Jan. 24, 2012.

Chauncey B. Wood, with whom Wood & Nathanson, LLP was on brief, for appellant.

Thomas F. Klumper, Assistant United States Attorney, with whom Nelson Pérez–Sosa, Assistant United States Attorney, Chief, Appellate Division, was on brief, for appellee.

Before HOWARD, SELYA and THOMPSON, Circuit Judges.

HOWARD, Circuit Judge.

By plea agreement, defendant-appellant Jorge Luis Gallardo–Ortiz pled guilty to two criminal counts involving his unlawful possession of ammunition and a firearm, a Glock Model 27, which is .40 caliber handgun capable of operating as a fully automatic machine gun. See 18 U.S.C. §§ 922(g)(1), 922( o ); see also 18 U.S.C. § 921(23) (incorporating definition of “machinegun” firearm under 26 U.S.C. § 5845(b)). The parties recommended a sentence of 33 months of incarceration, which the district court rejected. Instead, after considering the particulars of the case in light of the statutory sentencing factors, 18 U.S.C. § 3553(a), the court imposed a sixty-month sentence of incarceration—nineteen months beyond the top of the guidelines sentencing range (GSR) of 33–41 months—and three years of supervised release. Gallardo appeals, arguing that the stringent sentence is tainted by procedural error and is substantively unreasonable. ¹ We disagree and affirm the sentence.

I. Background

In the early morning hours of April 16, 2007, police in San Juan, Puerto Rico received a call that an armed male was seen in the vicinity of the Manuel A. Perez housing project. Two responding officers promptly arrived at the scene around 1:45 a.m. and saw Gallardo holding a firearm. Catching sight of the officers, Gallardo fled on foot. The officers quickly captured him and recovered his Glock .40 caliber pistol.

The loaded gun was equipped with a conversion clip allowing it to operate as a fully automatic machine gun and accept extended ammunition magazines. Gallardo also had on his person two extended magazines, loaded with twenty-three and twenty-seven rounds, respectively.

A federal grand jury later returned a three-count indictment charging Gallardo with (1) possession of ammunition and a firearm by a convicted felon, see 18 U.S.C. § 922(g), (2) knowing and intentional possession of ammunition and a machine gun, see 18 U.S.C. § 922( o ), and (3) knowing possession of ammunition and a firearm within 1,000 feet of a school zone, see 18 U.S.C. § 922(q)(2)(A). Gallardo pleaded guilty to the first two charges, and the government agreed to dismiss the third. The parties also agreed to recommend a sentence of 33 months of incarceration, the bottom of the advisory GSR calculation of 33–41 months. See United States v. Booker, 543 U.S. 220, 259–60, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005) (declaring the sentencing guidelines advisory).

At the sentencing hearing, the district court informed the parties that it had carefully considered the indictment, the charges filed within the indictment, and the plea agreement. It also had reviewed the pre-sentence investigation report (PSR) in detail with the probation officer. The court informed Gallardo of its intent to depart upward from the recommended sentence. Gallardo then presented his allocution, expressing his regret and his desire to serve minimal incarceration so that he could continue to financially support his family. After requesting two changes to the PSR, which the court largely obliged, Gallardo assented to the contents of the report.

Ultimately, the district court rejected components of Gallardo's allocution and concluded that a sentence within the GSR ² would not constitute an appropriate sentence. Instead, after considering the section 3553(a) factors, the judge imposed a sentence outside the guideline range in order to reflect both the seriousness of the offense and its nature and circumstances, to promote respect for the law, to protect the public from further crimes by the appellant and to otherwise address the issues of deterrence and punishment. As noted earlier, the sentencing judge imposed a sixty-month sentence of imprisonment, as well as three years of supervised release. This timely appeal followed.

II. Discussion

On appeal, Gallardo argues that his sentence is constitutionally unreasonable because the district court committed numerous procedural and substantive errors when devising the sentence. Before turning to the specifics of his arguments, we frame the governing law.

Sentencing “is much more an art than a science,” United States v. Clogston, 662 F.3d 588, 593 (1st Cir.2011), and “appellate review of sentencing decisions is limited to determining whether they are reasonable,” Gall v. United States, 552 U.S. 38, 46, 128 S.Ct. 586, 169 L.Ed.2d 445 (2007) (internal quotation marks omitted). Reasonableness correlates with the abuse of discretion standard and incorporates two review components—discerning whether the challenged sentence is procedurally sound and substantively reasonable. See id. at 51, 128 S.Ct. 586; United States v. Thurston, 544 F.3d 22, 24–25 (1st Cir.2008). Procedural soundness requires that the district court must not have committed “a procedural error in arriving at the sentence.” United States v. Rivera–Moreno, 613 F.3d 1, 8 (1st Cir.2010); see Gall, 552 U.S. at 51, 128 S.Ct. 586 (providing examples of procedural errors, including a sentencing judge “selecting a sentence based on clearly erroneous facts”). For substantive reasonableness, the linchpin is “a plausible sentencing rationale and a defensible result.” United States v. Pol–Flores, 644 F.3d 1, 4–5 (1st Cir.2011) (internal quotation marks omitted).

An established roadmap exists to guide sentencing courts when discerning a reasonable sentence, which begins with assessing the GSR. See Gall, 552 U.S. at 49–50, 128 S.Ct. 586; United States v. Madera–Ortiz, 637 F.3d 26, 29–30 (1st Cir.2011); United States v. Martin, 520 F.3d 87, 91–92 (1st Cir.2008). The sentencing court must also consider a number of relevant factors, see 18 U.S.C. § 3553(a), but “the weighting of those factors is largely within the court's informed discretion.” Clogston, 662 F.3d at 593; see Gall, 552 U.S. at 49–50, 128 S.Ct. 586 (holding that while the GSR is a valuable starting point, the sentencing judge must make an “individualized assessment based on the facts presented”). Indeed, “[t]here is no single reasonable sentence in any particular case but, rather, a universe of reasonable outcomes,” United States v. Walker, 665 F.3d 212, 234 (1st Cir.2011), and sentencing decisions are entitled to great deference given the superior judicial vantage point of sentencing judges, see Gall, 552 U.S. at 51–52, 128 S.Ct. 586. Our task is to determine whether the district court's informed decision falls within that universe, not to supplant its judgment. See Walker, 665 F.3d at 233–34; Clogston, 662 F.3d at 593.

We note two additional principles before turning to the details of the sentencing in this case. First, we are mindful that the sentencing judge may consider all relevant information that has “sufficient indicia of reliability to support its probable accuracy”; the usual rules of evidence do not pertain at sentencing. See United States v. Cintrón–Echautegui, 604 F.3d 1, 6 (1st Cir.2010) (internal quotations omitted). Further, the sentencing court “has wide discretion to decide whether particular evidence is sufficiently reliable to be used at sentencing.” Id.; see United States v. Marsh, 561 F.3d 81, 87 (1st Cir.2009) (determining that the district court is free to credit the descriptions contained in the PSR when the defendant does not contest the reliability of the information in the report).

Second, our appellate review includes consideration of the extent of any variance from the GSR in the context of the totality of the circumstances. See Gall, 552 U.S. at 51, 128 S.Ct. 586. A dramatic variance, however, cannot unduly influence our review of substantive reasonableness. Thurston, 544 F.3d at 25; see Gall, 552 U.S. at 47, 128 S.Ct. 586 (rejecting an appellate rule that requires “extraordinary” circumstances to justify a sentence outside of the GSR calculation). Nevertheless, the sentencing court's reasons for its deviation “should typically be rooted either in the nature and circumstances of the offense or the characteristics of the offender; must add up to a plausible rationale; and must justify a variance of the magnitude in question.” Martin, 520 F.3d at 91. In the end, the standard of reasonableness applies regardless of whether the challenged sentence falls inside or outside of the GSR. United States v. Jimenez–Beltre, 440 F.3d 514, 519 (1st Cir.2006) (en banc); see also Martin, 520 F.3d at 92 (noting that once the court has duly calculated the GSR, sentencing “becomes a judgment call, and a variant sentence may be constructed based on a complex of factors whose interplay and precise weight cannot even be precisely described” (internal quotation marks omitted)). Against this backdrop, we review the sentencing decision before us.

The sentencing judge provided several reasons for imposing a sentence in excess of the GSR. See Clogston, 662 F.3d at 592 (noting that the appellate court “must assay the record as a whole to gauge the sentencing judge's thought process”). First, she focused on the seriousness of the offense, emphasizing Gallardo's in-hand possession of a loaded high-capacity fully automatic machine gun while publicly arguing with a family member in a protected school zone. Second, the sentencing judge noted Gallardo's violent character, displayed in part by his criminal history and post-arrest admissions to law enforcement.

Third, the judge underscored her concern for public safety and for fostering respect for the law, as well as Gallardo's need for a strong...