United States v. Melendez-Hiraldo

82 F.4th 48

UNITED STATES of America, Appellee, v. Roberto M. MELENDEZ-HIRALDO, a/k/a Cocodrilo, Defendant, Appellant.

No. 21-1863

United States Court of Appeals, First Circuit

September 21, 2023

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF PUERTO RICO [Hon. Francisco A. Besosa, U.S. District Judge]

Jose Luis Novas-Debien on brief for appellant.

W. Stephen Muldrow, United States Attorney; Mariana E. Bauzá-Almonte, Assistant United States Attorney, Chief, Appellate Division; and Maarja T. Luhtaru, Assistant United States Attorney, on brief for appellee.

Before Lipez and Montecalvo, Circuit Judges, Burroughs,^* District Judge.

MONTECALVO, Circuit Judge.

Roberto M. Melendez-Hiraldo ("Melendez") appeals from a 194-month sentence imposed after he pled guilty to using, carrying, brandishing, and discharging a firearm in furtherance of a crime of violence in violation of 18 U.S.C. § 924(c)(1)(A)(iii) and (2). Melendez challenges the procedural and substantive reasonableness of his sentence. Having discerned no error, we affirm.

I. Background¹

On June 8, 2018, Melendez was involved in the kidnapping and murder of a rival gang member, referred to by the parties as "WGE." WGE had been threatening members of Melendez's gang, so Melendez, with four other members of his gang, participated in the killing of WGE to support the gang.

On the day of the murder, Melendez traveled with members of his gang to the public housing complex where WGE lived. Armed with guns, Melendez and his codefendants forced WGE out of his home and into a Toyota Camry. WGE was transported in the Camry to Barraza's Ward by a codefendant. Other codefendants, along with Melendez, traveled in a separate vehicle to Barraza's Ward. While he remained in the car, Melendez watched two codefendants take WGE out of the Camry and saw them shoot WGE multiple times. Although Melendez did not shoot WGE, a cooperating witness alleged that Melendez and another codefendant gave a revolver to the person who first shot WGE.²

On August 19, 2020, Melendez and four codefendants were charged in a three-count second superseding indictment (the "indictment") for the kidnapping and murder of WGE. The indictment charged Melendez with kidnapping resulting in death, in violation of 18 U.S.C. § 1201(a)(1) and (2); using, carrying, brandishing, and discharging a firearm during and in relation to a crime of violence, in violation of 18 U.S.C. § 924(c)(1)(A)(iii) and (2); and using, carrying, and discharging a firearm during and in relation to a crime of violence causing murder, in violation of 18 U.S.C. § 924(j)(1) and (2).

On June 21, 2021, Melendez pled guilty to count two of the indictment, and in exchange the government agreed to dismiss the remaining counts. Pursuant to the plea agreement, the parties stipulated that Melendez's guidelines sentence was 120 months, the minimum term of imprisonment required by statute. The parties also agreed to jointly recommend a sentence of 164 months, to be served consecutively with a previously imposed 46-month sentence Melendez had received in an unrelated federal case.³ Finally, Melendez stipulated to the statement of facts incorporated into the plea agreement. The court accepted Melendez's change of plea.

Melendez's sentencing followed. Pursuant to the plea agreement, Melendez and the government jointly recommended a 164-month sentence for the firearms offense. At the hearing, Melendez defended the recommendation before the court, arguing that 164 months was "more than sufficient punishment," particularly given certain mitigating factors discussed in his sentencing memorandum, including "his family background, or lack thereof, . . . [the fact that] he's the first to plead guilty, [and data showing] people age out of crime."

The district court stated twice that the applicable guidelines sentence for the single count was 10 years, or 120 months, and acknowledged that the parties had agreed to a variant sentence of 164 months. It also referenced Melendez's age, employment history, ninth grade education, and history of drug use as factors relevant to his sentencing.

Before weighing in on the appropriate sentence, the court summarized the offense and detailed Melendez's criminal history. Along the way, the court calculated the applicable number of criminal history points that Melendez would have accrued for each conviction, noting that Melendez scored additional points for the instant conviction because he committed it while on escape status. In the end, the court concluded that Melendez "could have scored eight criminal history points, establishing a criminal history category of four," but added that "criminal history points . . . do not apply for this firearm conviction."

Next, having heard from the parties and considered the relevant sentencing factors, the district court announced that it would not be adopting the joint recommendation because it "agree[d] with the probation officer" that a 164-month sentence did not adequately "reflect the seriousness of the offense, does not promote respect for the law, does not protect the public from further crimes by . . . Melendez, and does not address the issues of deterrence and punishment."⁴

A detailed description of the offense followed. After describing the kidnapping, the court focused on the brutality of the murder, noting that "the victim received 10 shots to the head and 12 to his upper body," and that even after he was "shot to the head and dropped to the floor," he "receiv[ed] multiple shots." The court also noted that just before WGE was murdered, the codefendant who fired the first shot said, "Llego tu dia" ("[y]our day had arrived"). The court added that "Melendez and [another] codefendant" were responsible for "giv[ing] a revolver" to the first shooter.

When it finished detailing the kidnapping and murder, the court remarked:

Accordingly -- again, the [c]ourt agrees with the probation officer [that the joint recommendation is inadequate]. . . . Accordingly, it is the judgment of the [c]ourt, [that] . . . Melendez . . . is committed to the custody of the Bureau of Prisons to be imprisoned for a term of 194 months to be served consecutively to the 46-month sentence imposed on him in Criminal [Case] No. 18-581, for a total sentence of 240 months of imprisonment. . . . Upon release . . . Melendez shall be placed on supervised release for a term of five years.

Melendez objected and this timely appeal followed.⁵

II. Discussion

We ordinarily review preserved claims of sentencing error for abuse of discretion. United States v. Montero-Montero, 817 F.3d 35, 37 (1st Cir. 2016). "That review typically starts with claims of procedural error." Id. Such errors include "failing to calculate (or improperly calculating) the Guidelines range, treating the Guidelines as mandatory, failing to consider the § 3553(a) factors, selecting a sentence based on clearly erroneous facts, or failing to adequately explain the chosen sentence -- including an explanation for any deviation from the Guidelines range." Gall v. United States, 552 U.S. 38, 51, 128 S.Ct. 586, 169 L.Ed.2d 445 (2007).

Assuming the sentence is procedurally sound, we then consider the substantive reasonableness of the sentence under an abuse of discretion rubric. Id. A sentence is substantively reasonable if it "reflects 'a plausible sentencing rationale and a defensible result.' " United States v. Rossignol, 780 F.3d 475, 477 (1st Cir. 2015) (quoting United States v. Martin, 520 F.3d 87, 96 (1st Cir. 2008)). "[O]ur review is limited to determining whether [the district court's] sentence, 'in light of the totality of the circumstances, resides within the expansive universe of reasonable sentences.' " Id. (quoting United States v. King, 741 F.3d 305, 308 (1st Cir. 2014)).

But when a defendant fails to preserve a claim of procedural or substantive error below, we review for plain error. Montero-Montero, 817 F.3d at 37. "To succeed under plain error review, an appellant must show '(1) that an error occurred (2) which was clear or obvious and which not only (3) affected the [appellant's] substantial rights, but also (4) seriously impaired the fairness, integrity, or public reputation of judicial proceedings.' " Id. (alteration in original) (quoting United States v. Duarte, 246 F.3d 56, 60 (1st Cir. 2001)).

A. Procedural Reasonableness

Melendez lodges several challenges to the procedural reasonableness of his sentence. He contends that the district court erred by (1) making conflicting statements about his applicable guidelines sentence; (2) failing to consider relevant mitigating factors; (3) not providing specific reasons for upwardly varying beyond the parties' recommended sentence; (4) failing to identify its reasons for imposing an upwardly variant sentence; and (5) not stating clearly whether it was departing or varying from the applicable guidelines sentence.

As a threshold matter, the government argues that Melendez waived his procedural challenges because he failed to preserve his claims below and did not address the plain error standard in his opening brief. "To preserve a claim of procedural sentencing error for appellate review, a defendant's objection need not be framed with exquisite precision." United States v. Rivera-Berríos, 968 F.3d 130, 134 (1st Cir. 2020) (citing United States v. Soto-Soto, 855 F.3d 445, 448 n.1 (1st Cir. 2017)). It must, however, be "sufficiently specific to call the district court's attention to the asserted error." Id. (quoting Soto-Soto, 855 F.3d at 448 n.1).

Here, after the court handed down the sentence, Melendez made the following objection:

We object to, first of all, the recitation of facts. My client only accepts the stipulation of facts as entered into the plea agreement . . . . There are no proper reasons for the excessively upward variance in the [c]ourt's sentence. As the [c]ourt noted, the proper guideline for the charge is 120 months. The parties came up with an already-included variance

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