United States v. Polaco-Hance

103 F.4th 95

UNITED STATES of America, Appellee, v. Jean Carlos POLACO-HANCE, Defendant, Appellant.

No. 21-1942

United States Court of Appeals, First Circuit

June 3, 2024

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

Mauricio Hernandez Arroyo, with whom Law Offices of Mauricio Hernandez Arroyo was on brief, for appellant.

Jonathan L. Gottfried, Assistant United States Attorney, with whom W. Stephen Muldrow, United States Attorney, Mariana E. Bauzá-Almonte, Assistant United States Attorney, Chief, Appellate Division, and Gregory B. Conner, Assistant United States Attorney, were on brief, for appellee.

Before Barron, Chief Judge, Montecalvo and Rikelman, Circuit Judges.

RIKELMAN, Circuit Judge.

Jean Carlos Polaco-Hance ("Polaco") received a seventy-two-month sentence after he was convicted of being a felon in possession of a firearm and unlawfully possessing a machinegun. Pointing out that his sentence is forty percent higher than the upper end of the range recommended under the federal sentencing guidelines, Polaco challenges the procedural and substantive reasonableness of his sentence. After careful consideration, we conclude that the district court provided sufficient reasons to justify its higher sentence here, including the large amount of ammunition in Polaco's possession, and therefore affirm.

I. BACKGROUND

A. Relevant Facts¹

In 2019, Polaco pled guilty to attempting to smuggle about $100,000 in cash in bulk from the United States to the Dominican Republic and making a false statement to a United States agency. He was sentenced to fifteen months of imprisonment for each offense, to be served concurrently, and three years of supervised release. He began his supervised release term on May 29, 2020.

About three months later, Polaco was arrested for the offenses that form the basis of this appeal. The events that led to his arrest and conviction transpired on September 10, 2020, when four police officers were driving in an unmarked police car through a retail area in Carolina, Puerto Rico. As they drove past an auto-repair shop where Polaco worked, one of the officers observed Polaco standing in front of the shop with a bag over his shoulder. The officer witnessed Polaco reach into the bag and turn his body as he watched the path of the unmarked car. Suspecting that Polaco had a firearm in his bag, the officer informed his colleagues that an individual standing in front of the auto-repair shop was armed. The driver turned the car around and parked in between the shop and a bakery located next door; as they exited the vehicle, the four officers called out to Polaco that they were police. In response, Polaco began to flee toward a fence at the back of the shop and threw his bag over the fence. The officers quickly caught up, arrested Polaco, and recovered the bag. Inside it, they found a Glock pistol modified to fire automatically² and loaded with a magazine capable of holding twelve rounds of ammunition; four extended magazines capable of holding twenty-two rounds of ammunition each; and a total of 111 rounds of ammunition. Most of the 111 rounds were distributed between the magazines, though sixteen rounds were loose in the bag.

A federal grand jury indicted Polaco on one count of being a felon in possession of a firearm, in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2), and one count of unlawfully possessing a machinegun, in violation of 18 U.S.C. §§ 922(o) and 924(a)(2). The case proceeded to trial, after which a jury found Polaco guilty on both counts.

B. Sentencing Proceedings

Prior to the sentencing hearing, a probation officer prepared a presentence report ("PSR") setting forth the guideline calculations that applied in Polaco's case. The sentencing guideline that covers Polaco's offenses is section 2K2.1. It calls for a base offense level of twenty if (1) the "offense involved" a "firearm that is described in 26 U.S.C. § 5845(a)," (2) the defendant was a "prohibited person" at the time of the offense (for instance, someone previously convicted of a felony), and (3) there is no other basis for a greater enhancement under the guideline. U.S. Sent'g Guidelines Manual § 2K2.1(a)(4)(B)(i)(II), (ii)(I) (U.S. Sent'g Comm'n 2023) [hereinafter U.S.S.G.]. Section 5845(a), in turn, includes a machinegun among the "firearm[s]" it lists. 26 U.S.C. § 5845(a)(6). And a machinegun is defined as "any weapon which shoots, is designed to shoot, or can be readily restored to shoot, automatically more than one shot, without manual reloading, by a single function of the trigger." Id. § 5845(b).

Relying on section 2K2.1, the probation officer calculated Polaco's base offense level as twenty,³ see U.S.S.G. § 2K2.1(a)(4)(B)(i)(II), (ii)(I), and then subtracted two levels for acceptance of responsibility. Polaco's two prior federal convictions and the fact that he committed the firearms offenses while on supervised release resulted in a criminal history category of III. Together, these tabulations yielded a guideline sentencing range of thirty-three to forty-one months of imprisonment. The PSR noted that, in determining whether a sentence outside of that range was appropriate, the court could consider, among other things, "that [Polaco's] possession of five (5) magazines, four (4) of which were extended, carrying a total of 111 rounds of ammunition to be used on a pistol that was converted to fire automatically[,] increases the likelihood of harm to society should the defendant in fact discharge the weapon." Neither party filed objections to the PSR.

The government did, however, file a sentencing memorandum challenging the guideline calculation and contending that a sentence above the guideline range was warranted. The two-level deduction for acceptance of responsibility was incorrect, the government maintained. Because Polaco went to trial to contest factual elements of guilt, rather than to preserve separate, legal challenges, it argued, his case was not one of the "rare situations" referenced in the guidelines in which a defendant can demonstrate acceptance of responsibility while simultaneously exercising their right to trial. See U.S.S.G. § 3E1.1 cmt. n.2. The government's guideline calculation, with the two-level deduction removed from the total offense level, was forty-one to fifty-one months.

The government then requested a sentence of sixty months, nine months above that range, for four key reasons. First, it pointed to the 111 rounds of ammunition and four high-capacity magazines that Polaco possessed. Second, it contended that guns that are modified into machine guns pose a heightened danger compared to machineguns that are manufactured as such. In support of that proposition, it cited two publications issued by the United States Army that discuss safety protocols and design features of manufactured machineguns that soldiers use to stabilize the recoil and muzzle rise from their weapons. The government asserted that those features were absent in the simple pistol that Polaco possessed and, as such, the pistol was particularly hard to control and particularly dangerous. Third, the government contended that an upward variance was justified because of the "social context of the offense[s]" -- that is, high rates of gun-related homicide in Puerto Rico relative to the rest of the United States -- when "combined with [the] specific facts" here. Those facts included Polaco's possession of 111 rounds of ammunition and multiple high-capacity magazines during the daytime in a retail area of Puerto Rico. Fourth, citing the need for adequate deterrence, the government insisted that a higher-than-average sentence was necessary because the within-guideline sentence Polaco received in his prior case did not deter him from engaging in new criminal conduct just three months into his supervised release term.

The district court held the sentencing hearing in November 2021. At the hearing's outset, Polaco challenged the government's arguments in support of an upward variance. As relevant to the issues before us, he contended that the government's discussion of murder rates in Puerto Rico was unrelated to his case. He stressed that he never removed the firearm from the bag he was carrying; rather, his offenses were victimless and nonviolent. Additionally, Polaco disputed the government's assertion that the machinegun he possessed was especially dangerous. He maintained that it was misleading to rely on the Army publications that discussed design features to improve stability and avoid recoil for a machinegun, when the weapon that he possessed was a handgun. Polaco concluded by requesting a sentence within the guideline range calculated by the PSR. The government repeated the arguments from its sentencing memorandum explaining its calculation of the guideline range and why a nine-month variance above that range was justified.

The district court then proceeded with sentencing. It instructed the probation officer to amend the PSR so that the guideline calculation did not include a two-level reduction for acceptance of responsibility.⁴ That adjustment -- the only one the district court made to the PSR's calculation -- yielded a corrected guideline sentencing range of forty-one to fifty-one months. Next, the court cited its review of the 18 U.S.C. § 3553(a) sentencing factors. And it quoted the introductory commentary to Part A of Chapter Four of the guidelines, which discusses calculating a defendant's criminal history score. That commentary states that "repeated criminal behavior will aggravate the need for punishment with each recurrence." U.S.S.G. ch. 4, pt. A, introductory cmt.

Shifting gears, the court briefly discussed Polaco's age, educational background, and employment status. Turning to Polaco's offense conduct, the court noted that he had in his possession 111 rounds of ammunition and five magazines, four of which were extended and all of which were...