United States v. Pupo

995 F.3d 23

UNITED STATES of America, Appellee,

v.Lincoln Gabriel PUPO, Defendant, Appellant.

No. 19-1505

United States Court of Appeals, First Circuit.

April 20, 2021

Andrew S. McCutcheon, Assistant Federal Public Defender, with whom Eric Alexander Vos, Federal Public Defender, and Franco L. Pérez-Redondo, Supervisor, Appeals Division, Assistant Federal Public Defender, were on brief, for appellant.

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

Before Thompson, Lipez, Circuit Judges, and Laplante,^* District Judge.

THOMPSON, Circuit Judge.

Appellant Lincoln Gabriel Pupo pleaded guilty to the federal crime of carjacking, 18 U.S.C. § 2119. Prior to his plea, he negotiated a deal with the government stipulating a total offense level ("TOL") but not a Criminal History Category ("CHC"). At sentencing, the district judge calculated a higher TOL than the one in the plea agreement, which together with the court's CHC calculation resulted in a higher sentencing range than contemplated by the parties. Pupo, citing procedural and substantive defects during sentencing, requests that we vacate his sentence and remand for resentencing. Perceiving no error, we affirm.

Background ¹

On January 15, 2018, two women returned to their parked car after enjoying a meal at a Longhorn Steakhouse in Guaynabo, Puerto Rico. As they settled into the car, Pupo approached the driver's side window and ordered the pair to step out. Pupo made his intentions clear, announcing that he was "assault[ing]" them and that they should exit the vehicle immediately. Then he upped the ante, telling them to get out of the car or else he would shoot them (though, unbeknownst to the pair, Pupo did not have a gun). The two women complied, handed over the keys, and allowed Pupo to drive off with the car. Soon thereafter, local law enforcement located the vehicle and arrested Pupo. The two women identified Pupo as their assailant. On January 18, 2018, a federal grand jury charged Pupo with one count of carjacking, in violation of 18 U.S.C. § 2119. Pupo struck a deal with the government and pleaded guilty to the sole offense.

Leading up to his sentencing hearing, both probation's pre-sentence investigation and defense counsel's investigation revealed that Pupo had a tough upbringing and suffered from extensive substance abuse and mental health issues. Pupo came from a dysfunctional home and grew up in several public housing projects where violence pervaded. Living in an environment with rampant drug use, he began using several controlled substances at an early age. In 2011, a Puerto Rico Department of Corrections social worker diagnosed him with mixed adjustment disorder, anxiety, and depression while acknowledging a previous diagnosis of bipolar disorder and ADHD. Most recently, in 2018, Pupo underwent his first psychodiagnostics evaluation which revealed he suffered from an unspecified form of Schizophrenia and "other psychotic disorder." In his sentencing memorandum, Pupo attached the psychodiagnostics evaluation and suggested that he needed both mental health and drug treatment, neither of which he had received up to that point.

The PSR and Pupo's sentencing memorandum addressed his difficult upbringing, substance abuse, and mental health issues in detail. The two documents, however, diverged as to the calculation of the Guidelines sentencing range ("GSR"). In his sentencing memorandum, Pupo calculated a GSR of thirty-seven to forty-six months' incarceration, using a CHC of III (even though the parties did not stipulate to a CHC level) and relying on the plea agreement's stipulated TOL of nineteen. Based on these calculations, he sought a sentence of forty months' incarceration. The PSR, however, calculated a total offense level of twenty-one and a CHC of V, yielding a GSR of seventy to eighty-seven months of imprisonment. Both the plea agreement and the PSR's calculations included a base offense level of 20 under U.S.S.G. § 2B3.1, a two-point enhancement for the carjacking offense under U.S.S.G. § 2B3.1(b)(5), and a three-point deduction for acceptance of responsibility under U.S.S.G. § 3E1.1. But the PSR also included an additional two-point "threat of death" enhancement under U.S.S.G. § 2B3.1(b)(2)(F).² Neither party objected to the PSR's calculations. In his sentencing memorandum, however, Pupo did argue that although technically correct, the PSR's CHC designation substantially over-represented the seriousness of his criminal history and likelihood of recidivism and requested a "downward departure" to category III.

At sentencing, defense counsel reiterated his request for a downward departure after describing the way in which the carjacking was a direct result of Pupo's long-standing mental health and substance abuse issues, including his recent and first-ever accurate diagnosis of an unspecified form of Schizophrenia and "other psychotic disorder" -- all of which, again, was presented in the PSR and sentencing memorandum. The government, on the other hand, found the PSR's calculation of the CHC appropriate, also noting that the court's responsibility to protect the public from Pupo cautioned against a lower sentencing range, but the government still stood by the total offense level of nineteen from the plea agreement.

After reviewing the PSR, the addendum to the PSR, and Pupo's sentencing memorandum, and after hearing from both parties, the district court disagreed with Pupo's CHC assessment. The district judge denied Pupo's request for a downward departure, explaining that Pupo's "request for the Court to reconsider and reevaluate the Criminal History Category ... is being denied as the Court finds [ ] that the probation officer has correctly calculated the same." As an aside, the district judge mentioned the "defendant's brushes with the law" which were "plenty and numerous" and included multiple convictions, arrests, and dismissed cases, but which did not factor into the CHC calculation. ³

Accordingly, the district judge adopted probation's calculation, resulting in a GSR of seventy to eighty-seven months.

The district judge then considered the 18 U.S.C. § 3553(a) sentencing factors. Notably for this appeal, the judge emphasized Pupo's history of mental health issues and "extensive history of substance abuse." The district judge explained that "because of [Pupo's] need for psychiatric medications and consumption of drugs ... he has reached stages in which his mental illness predominantly is present, and has engaged in numerous violations of the law." The district judge recognized that "[t]his is Mr. Pupo's 12th known arrest and sixth conviction as an adult," and emphasized his actions related to the offense including the fact that "the victims felt and were submitted to the threats and feared for their lives" and that they "were robbed of the[ir] [ ] vehicle and belongings." The judge again recognized that "the defendant needs treatment" for his mental health issues, and that "he needs to remain committed to his medications and to that treatment" because otherwise "he will not be able to control [his actions]." Without medication, the district judge explained, Pupo was a "time bomb." Finally, taking into consideration the plea agreement, the need to promote respect for the law and to protect the public from Pupo, as well as the need for deterrence and punishment, the court sentenced Pupo to a term of seventy months' imprisonment followed by three years of supervised release.⁴

Defense counsel objected to the substantive and procedural reasonableness of the sentence. Specifically, counsel objected to the "Court's consideration of uncharged or dismissed conduct" and the "denial of the request of downward departure based on overrepresented criminal history and risk of recidivism, as well as the arguments relating to Mr. Pupo's mental health." Pupo now appeals, alleging that his within-guidelines sentence is both procedurally and substantively unreasonable.

Standard of Review

Claims challenging the procedural and substantive reasonableness of a sentence are subject to a bifurcated inquiry: "we first determine whether the sentence imposed is procedurally reasonable" and if we conclude that it is, we "then determine whether it is substantively reasonable." United States v. Flores-Quiñones, 985 F.3d 128, 133 (1st Cir. 2021) (quoting United States v. Reyes-Torres, 979 F.3d 1, 6-7 (1st Cir. 2020) ); see also Gall v. United States, 552 U.S. 38, 51, 128 S.Ct. 586, 169 L.Ed.2d 445 (2007). A sentence is procedurally unreasonable when the district court commits a procedural error such as "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." United States v. Díaz-Rivera, 957 F.3d 20, 25 (1st Cir. 2020) (quoting United States v. Bermúdez-Meléndez, 827 F.3d 160, 163 (1st Cir. 2016) ).

A sentence is substantively reasonable if the "sentencing court has provided a ‘plausible sentencing rationale’ and reached a ‘defensible result.’ " Flores-Quiñones, 985 F.3d at 133 (quoting United States v. Sayer, 916 F.3d 32, 39 (1st Cir. 2019) ). In determining the substantive reasonableness of a sentence, we owe deference to the sentencing court's exercise of informed discretion in fashioning the appellant's sentence. United States v. López, 974 F.3d 1, 8-9 (1st Cir. 2020). Further, "[i]n the sentencing context, we evaluate claims of unreasonableness in light of the totality of the circumstances." United States v. Flores-Machicote, 706 F.3d 16, 20 (1st Cir. 2013) (citing Gall, 552 U.S. at 51, 128 S.Ct. 586 ).

We review preserved...