United States v. Rodriguez-Monserrate

22 F.4th 35

UNITED STATES of America, Appellee,

v.Hermin RODRIGUEZ-MONSERRATE, a/k/a Cano, a/k/a Canito. Defendant, Appellant.

No. 20-1905

No. 20-1907

United States Court of Appeals, First Circuit.

December 30, 2021

Arza Feldman, with whom Feldman and Feldman was on brief, for appellant.

Robert P. Coleman III, Assistant United States Attorney, with whom W. Stephen Muldrow, United States Attorney, and Mariana E. Bauzá-Almonte, Assistant United States Attorney, were on brief, for appellee.

Before Thompson, Kayatta, and Barron, Circuit Judges.

KAYATTA, Circuit Judge.

In this consolidated appeal, Hermin Rodriguez-Monserrate raises a host of procedural and substantive challenges to two sentences he received at hearings conducted via videoconference during the COVID-19 pandemic. We find that all but one of his challenges are waived or otherwise without merit and that his remaining challenge is not yet ripe for review. Our reasoning follows.

I.

This case arises out of the following events. In 2019, law enforcement agents saw a gun and magazines on a ledge near a window to the apartment occupied by Rodriguez's romantic partner. The partner allowed agents to search her apartment while Rodriguez was present. During the search, agents found ammunition, marijuana, face masks, a radio scanner, and various gun holsters. Rodriguez was arrested and admitted that most of these items were his, though he denied owning the gun and associated magazines found on the ledge.¹ Rodriguez further admitted that, at the time of his arrest, he had been convicted of a felony and was serving a term of supervised release.

Rodriguez's arrest led to two actions against him. First, the government charged him with committing a new crime: possessing ammunition as a convicted felon in violation of 18 U.S.C. § 922(g)(1). Second, the government sought revocation of his supervised release.

At an in-person hearing in February 2020, Rodriguez pleaded guilty to the section 922(g)(1) charge pursuant to a plea agreement in which the parties agreed to seek a prison term of 30 months. The agreement specified that Rodriguez waived his "right to appeal any aspect of [the] case's judgment and sentence, including but not limited to the term of imprisonment ... and conditions of supervised release" so long as his sentence did not exceed 37 months.

Rodriguez's sentencing hearing on the section 922(g)(1) conviction was scheduled to be held on the same day as the hearing on the government's request to revoke his supervised release. By the time those hearings were to occur, in August 2020, the COVID-19 pandemic had caused the United States District Court for the District of Puerto Rico to continue all in-person proceedings until October 2020. See Third Am. Order Continuing Civil & Criminal Proceedings, Misc. No. 20-0088 (GAG) (Aug. 25, 2020), ECF No. 21.² Accordingly, the district court sought Rodriguez's consent to proceed via videoconference. The court obtained that consent in two ways. First, Rodriguez filed a motion "respectfully request[ing] th[e] court to take note of his consent and to hold the [sentencing] hearing via videoconference." Second, at the start of the August 2020 proceedings, the court orally confirmed on the record that Rodriguez's "appear[ance] by video" was "voluntary" and that he "[did] not have to appear by video." The court told Rodriguez that he could consent to appear by video for both his sentencing and revocation hearings. Rodriguez consented to conducting both hearings by videoconference.

The court sentenced Rodriguez on the section 922(g)(1) conviction to 37 months -- the upper bound of the guideline range. The district court also imposed as one of several conditions of supervised release a requirement that Rodriguez "shall complete his high school education."

The court conducted Rodriguez's revocation hearing during the same videoconference pursuant to Rodriguez's earlier consent. The government sought a 10-month revocation sentence based on an estimated guideline range of 4–10 months, but the probation officer calculated the range to be 12–18 months. The court agreed with the probation officer and imposed an 18-month revocation sentence, to be served consecutive to the 37-month sentence for the section 922(g)(1) conviction.

During each hearing, Rodriguez asked the court to reconsider the pertinent sentence. The court denied each request.

Rodriguez now brings an array of challenges to both of his sentences.

II.

We begin with the revocation hearing and sentence. Unimpeded by his appeal waiver, which applies only to his sentence for the section 922(g)(1) conviction, Rodriguez raises two types of challenges to his revocation hearing and sentence. First, he argues that, notwithstanding his consent to proceed by videoconference, the district court erred in conducting the revocation hearing in that manner. Second, he argues that his revocation sentence was procedurally and substantively unreasonable. For the following reasons, both claims fail.

A.

Rodriguez argues that the district court erred in conducting his revocation hearing via videoconference because doing so was impermissible under both Federal Rule of Criminal Procedure 32.1 and the Coronavirus Aid, Relief, and Economic Security (CARES) Act, Pub. L. No. 116-136, 134 Stat. 281 (2020). Rodriguez did not raise these arguments below; rather, he consented to proceeding via videoconference, telling the district court that he "want[ed] to appear here and now." Hence, Rodriguez is at best entitled to plain error review. See United States v. Delgado-Sánchez, 849 F.3d 1, 6 (1st Cir. 2017). In his opening brief on appeal, Rodriguez makes no attempt to satisfy that standard as to his arguments based on either Rule 32.1 or the CARES Act. Those arguments are therefore waived. United States v. Pabon, 819 F.3d 26, 33–34 (1st Cir. 2016) (failure to address plain error standard waives challenge); Waste Mgmt. Holdings, Inc. v. Mowbray, 208 F.3d 288, 299 (1st Cir. 2000) ("[I]ssues advanced for the first time in an appellant's reply brief are deemed waived.").

Rodriguez also briefly asserts that proceeding by videoconference "impacted his right to the effective and meaningful assistance of counsel." Again, though, he made no claim below that the particular video format employed by the court impaired his ability to consult confidentially with his lawyer. Indeed, he does not dispute that the district court explained, "If you want to speak with your lawyer before I sentence you, or before I make a decision on your revocation, please let us know, and we will make arrangements for both of you to have a confidential communication." Nor does Rodriguez develop on appeal any argument as to how the format plainly impaired his ability to receive the assistance of counsel. This argument is therefore both forfeited and waived. See United States v. Zannino, 895 F.2d 1, 17 (1st Cir. 1990) ("[I]ssues adverted to in a perfunctory manner, unaccompanied by some effort at developed argumentation, are deemed waived."); Pabon, 819 F.3d at 33–34.

B.

Rodriguez next attacks his revocation sentence on procedural and substantive grounds. These challenges also fail.

We begin with procedural reasonableness. Rodriguez does not direct our attention to any objection below that was "sufficiently specific to call the district court's attention to the asserted [procedural] error," as required to preserve for appellate review an argument that a sentence is procedurally unreasonable. United States v. Soto-Soto, 855 F.3d 445, 448 n.1 (1st Cir. 2017). We must therefore conclude that the argument was not preserved, and is subject to plain error review. Because Rodriguez does not attempt to satisfy that standard of review, his procedural reasonableness argument is waived on appeal. Pabon, 819 F.3d at 33–34.³

In contrast, Rodriguez preserved his substantive reasonableness challenge below by "advocat[ing] for a sentence shorter than the one ultimately imposed."

United States v. García-Mojica, 955 F.3d 187, 194 (1st Cir. 2020) (quoting Holguin-Hernandez v. United States, ––– U.S. ––––, 140 S. Ct. 762, 766, 206 L.Ed.2d 95 (2020) ). We therefore review for abuse of discretion the substantive reasonableness of the sentence. Id.

A sentence is substantively reasonable if it rests on "a plausible sentencing rationale" and reaches "a defensible result." United States v. Cox, 851 F.3d 113, 120 (1st Cir. 2017) (quoting United States v. Martin, 520 F.3d 87, 96 (1st Cir. 2008) ). The "universe of reasonable sentences" is "expansive." Id. (quoting United States v. King, 741 F.3d 305, 308 (1st Cir. 2014) ). And "[w]e have repeatedly emphasized that ‘[a] challenge to the substantive reasonableness of a sentence is particularly unpromising when the sentence imposed comes within the confines of a properly calculated [guideline range].’ " Id. at 126 (second alteration in original) (quoting United States v. Demers, 842 F.3d 8, 15 (1st Cir. 2016) ).

Rodriguez's revocation sentence is substantively reasonable. The district court imposed a sentence within (albeit at the high end of) the probation officer's proffered guideline range, and Rodriguez does not argue that the range was improperly calculated. The district court also provided a plausible rationale for the sentence when it explained that Rodriguez's "new criminal conduct ... has shown his serious disrespect for the law and his lack of commitment to make changes towards a pro-social reintegration into society." The court determined "that a sentence at the high end of the guidelines [was] sufficient but not greater than necessary in this case" given Rodriguez's "noncompliance history and characteristics."

On appeal, Rodriguez focuses on the district court's failure to address potentially mitigating evidence, including his "extremely difficult childhood," his learning disability, and his responsibilities caring for his ailing mother. But this court "do[es] not require an express weighing of mitigating and aggravating...